HUSBAND AND WIFE

Otago Witness, Issue 3327, 19 December 1917, Page 5

HUSBAND AND WIFE

CLAIM UNDER A WILL. His Honor Mr Justice Sim on th© 13th gave judgment in the case of W. Simpson v. Margarette Simpson. The following is a summary of the judgment:—"The plaintiff and defendant are husband and wife. The defendant is the owner of a parcel of freehold land in South Dunedin on which is erected a dwelling house, and the parties went to live in this house in December, 1911. The plaintiff alleges that he made au agreement with the defendant in connection with this property, and the terms of it are set out in paragraph 4 of the statement of claim, which is as follows:—When they went to live in the house they found) it in a bnd state of repair, and plaintiff started to 3- ome repairs. It then occurred to plain fi that it** would not be advisable for him 10 go on spending woik and money on the house without som© understanding with his wife. He mentioned the subject to her, and an understanding was come to that she was to so arrange matters that the property would become plaintiff's after her death. .Plaintiff then went on with the repairs and improvements, including the work of connecting the house to the publio sewer, and the work done by plaintiff and work done by others and paid for by him would have cost defendant over I £100." Paragraphs 5 andl 6 of the statement of claim are as follows:—"(5) The work extended over a period of some months, as it was done in pla-in-tiff's spare time. About October, 1912, after the sewerage work was finished and paid for, plaintiff referred to the understanding regarding the house, and it was arranged that they should immediately get wills made in favour of each other, and this was done on October 28, 1019. (6) In April, 1916, defendant had an illness that rendered her incapable of managing her own affairs, and plaintiff removed her to the Home of the Sacred Heart at Anderson Bay, and placed hex in the care of the Good Mother. While she was there she took a great dislike to the plaintiff in consequence of the interference of certain persons who visited her, and sinoe then she has revoked the will above, referred to and refuses to see him." Paragraph 7 sets out at copy of the will made by the defendant, by which she devised and bequeathed all her real and personal property to the plaintiff, and appointed him executor of her will. The* question to be determined is whether or not on the facts stated in the statement of claim the plaintiff has any cause -A action. For the purposes of the case I s<!3iimo that the plaintiff is able to prove a -definite contrac* with the defendant that, in consideration of the plaintiff effecting the repairs and improvements referred to in the statement of claim, tho defendant agreed to secure the property to the plainliff after her death, and that the will signed by the defendant on October 28, 1912, was made for the purpose of carrying this agreement into effect. After quoting authorities the judgment continued: " It is clear, I think, that the acts of part performance relied on by the plaintiff do not bring the case within these authorities. When tha repairs and improvements' wear* made by the plaintiff ho was living in the house with his wife, and his acts admit of the explanation that they were simply done by him as a husband for the purpose of improving his wife's property. It is impossible, therefore, to say that they can be explained only by supposing that there must have been some contract between the parties in relation to the property. ... I think, therefore, that the Sta'ute of Frauds is an answer to any* claim for relief founded on the ageement 'alleged by the plaintiff. It ie to be "observed that even if part performance had been established, it would not have enabled the plaintiff to recover damages for breach of contract."