M‘KENZIE V. TEMPLETON AND ANOTHER.

Otago Witness, Issue 3196, 16 June 1915, Page 3

M‘KENZIE V. TEMPLETON AND ANOTHER.

ACTION FOR POSSESSION OF A COTTAGE.

His Honor Mr Justice Sim was engaged on the 9th in hearing the case M'Kenzie v. Templeton and M'Kay, trustees of the will of Mary M‘Kenzie, in which the ownership of a cottage at Riversdalo was involved.

This was an action brought by Isabella MTvenzio against the trustees oi the will of her sister, Mary MTvenzio, in which plaintiff claimed, first an injunction restraining defendants from proceeding with the action brought by them against her in the Magistrate’s Court at Gore for possession of the cottage at Riversdalo in which plaintiff lived; second, a declaration that the cottage became her property on tho death of her sister, in consequence of a promise made by her about two years before her death that if she lived with and cared for her the cottage was to be plaintiff’s property; third, a charge upon the property for about £ls spent by plaintiff in repairs, on the understanding tiiat the property was to be hers. As an alternative plaintiff claimed £IOO as renauiisriiion for her services. Plaintiff alleged that tho cottage belonged to her brother Hector, who, by his will, gave substantially all his property, including tho cottage, to Mary; that after Hector’s death Mary made her will leaving all her means for the benefit of Isabella Slocombe, wife of Robt. Slocornbo, and her children, and that shortly afterwards Mr Slocornbo and his wife took charge of Mary, and she went to live with them, believing that they were to take care of her during the rest cf her life; that about two years afterwards Mary asked plaintiff, who was living in Gore, to go and live with her in her own house in Riversdalo, and promised that if she did so the house would become hers if she lived after her (Mary); that plaintiff agreed to this, and that she cared for and nursed her sister till her death; that she spent money in repairs, and that she had continued to live in the house ever since in the assertion of her right; that in May last year plaintiff received from the trustees' solicitor a notice to quit, and that thereupon plaintiff’s solicitor replied that she had been seeing them at intervals for about two years with the view of getting them to take proceedings to give effect to the arrangement made between her and ker sister, but that they had prevailed upon her to let matters rest so long as she was not interfered with in her possession of the house; and that they hoped to hear no more of the matter, as the expense of such an action would be out of all proportion to the value of the house, but that they had now received instructions to bring the action in case of the trustees taking proceedings to oust her; that in April plaintiff was served with a summons for possession of tho house. Defendants denied the acrarigement alleged by plaintin, and denied that plaintiff rendered any services to her sister. Defendants admitted that plaintiff and her sister lived together till the sister’s death, but denied that plaintiff rendered any services to her sister other than such as might be expected from one sister to another. They denied that the plaintiff spent any money in repairing the bouse. Defendants also set up the defence of the Statute of Frauds; that, if there was any such arrangement as alleged, it could not bo enforced because it was not in writing. Mr Jno. MacGregor appeared for plaintiff, and Mr Alex. S. Adams, instructed by Mr Poppelwell, of Gore, for defendants. Mr MacGregor, in opening tho case, said that the answer to tho defence set up under the Statute of Frauds was that the writing was unnecessary inasmuch as tho plaintiff had performed her part of the agreement by caring for her sister till her death, and that the court had power to grant an equitable remedy notwithstanding the Statute Of Frauds. Evidence was called in support of plaintiff’s case, after which Mr Adams very briefly opened the defence, and proceeded to call Mr Poppelwell, who spoke as to the preparation of the -will of Mary and Hector MTCenzie, and the circumstances surrounding tho same-

Tho hearing of tho case was continued on Thursday. _ Mr MacGregor said that the first question was whether there had been a contract, and ho submitted that there had been. There had been a promise on tho part of Mary MTvenzio that if her sister Bella went and stopped with her and looked after her she (Bella) would get tho house if she survived her, and there had been a specific promise by Bella that she would look after her as long as she was able to do so. If that constituted a contract then there had been

part performance. It might be argued tha* the services were not sufficiently unambiguous to amount to acts of part performance, but in this caso that was not so, since the services stipulated for by the agreement were actual services rendered. Mr Adams replying, said that the claim was one by a relative against a person now deceased, and it could not be admitted unless there was corroboration. The onus rested upon the plaintiff, the alleged agreement being'a verbal one, to furnish clear and indisputable evidence, not alone that such an agreement existed, but also ns to the terms of the agreement. The actual fact was that the evidence produced complete confusion as to what could have been the terms of the agreement, supposing one to have boon made. He argued that too much attention had been given to the proving of the contract, and too little to proving sufficiency of performance to lift the case’ out of the Statute of Frauds. His Honor intimated that ho would taka time to consider his decision.