A FAMILY DISPUTE.

Sun (Christchurch), Volume VI, Issue 1578, 5 March 1919, Page 11

A FAMILY DISPUTE.

SUPREME COURT ACTION. ! ■ I SUGGESTED FRAUD REPUDIATED. I The hearing of the case in which Thomas Dixon, farmer, of Lakeside, claimed £2158 11/8 and interest from the Public Trustee, as trustee and executor of the will of the late Thomas Dixon.: sen., was continued in the Supreme Court | to-day before his Honour Mr Justice i Herdman and a special jury of 12, of ! which Mr. Denys Hoare w-as foreman. . Mr 8. G. Raymond, K.C., with him Mr i If. O. D. Meares, appeared for the plaintiff, and Mr O. T. J. Alpers, with him Mr j Lucas, for defendant. | The case concerned some complicated j family affairs. The late Mr Thomas, Dixon, sen., was described as a man of | dominating personality, one who. in Mr : Alpers's words, believed in keeping his j sons right np to the collar and testing | them out. He was a successful farmer at Doyleston until he retired in 1904 and came to Christchurch to live. In March, 1918, he died, leaving an estate valued by the Public Trustee at £20,470. His wife died nine months later. He left four children, these being in the order of their j seniority, Malcolm Dixon, Mrs Marshall, Mrs Quigley, and the plaintiff in the I piesent action. Under the late Thomas j Dixon's last will—the testator had madei many wills in his- time —thejlaintiff received a farm the Government valuation was £6065 and his own valuation £7500, | besides a quarter-interest in the residue of ! the estate, this share being at present valued by the Public Trustee at £750. I On plaintiff's valuation, his share was worth about £BOOO, but on the same standa id the value of the whole estate rose! above that scheduled by the Public Trustee. Malcolm Dixon did not receive any direct legacy beyond a life interest in j certain property—it was stated that his i father was not altogether satisfied with him—but his wife and children received | benefits under the will, and it was stated j that the total value of the interest of Malcolm and his wife and children came to a little more than plaintiff's share. The story of the farming transactions in which plaintiff and his father had been concerned was rather involved, but the major portion of the claim in this action concerned the profit on the sale of a farm at Queen's Flat, near Oaniaru. Thet farm had been purchased in plaintiff's name, and the title deeds were in his name. The purchase money was close on 1 £SOOO. Of that, £2BOO was advanced by I the Public Trustee, on a mortgage taken over by plaintiff from the seller of tho property, and £2125 was found by tho father, who took a second mortgage. Two years later, after the son had worked the farm without interference from his father, and had banked in his own name proceeds from the working of the farm, the property was sold at a profit of £1321. This was handed over to the father, plaintiff stating that he asked his father to buy for him a farm near Christchurch. Piaintiff said that it was not for two years after he had taken over the latter property—the value of which was about £:'.ooo—that he learned the title deeds to this'farm were not in his own name. After these two years, which were spent iii getting the farm, previously neglected, into order, the father charged his son rent for the farm. Plaintiff said that he objected to paying a high rent on what he considered to be his own farm, as his money was in it. Then, according to his story, his father said that he would get hi; money when tho purchaser of the Queen's Flat property paid some £2OOO which was remaining c,n mortgage. But plaintiff had not received that money, and the farm was included by the Public Trustee amongst the deceased's father's assets. Hence the present claim. This had been admitted by plaintiff's sisters, but had been objected to by Mrs Malcolm Dixon, and so the Public Trustee had called upon plaintiff to prove his claim. In addressing the jury, Mr Raymond contended that there was not a scintilla of evidence to support the theory that the father had fraudulently connived with his son to defraud the Government of graduated land tax by putting his son in the Queen's Flat property as a "dummy." As a matter of fact, the son was still liable to the estate for the £2OOO mortgage remaining on the property. Was that,-asked counsel, evidence of dummyism? With regard to the fact that, after being once assured by his father that his money was all right, the son had not got the matter put on a more satisfactory basis, Mr Raymond pointed out that, once having that verbal assurance, plaintiff was not likely to risk a breach with his masterful father. The evidence of Mrs Marshall, who had kept her father's books, and who had been in her father's confidence, showed what would have happened if plaintiff had persisted then. As for the matter of the disposition of the estate, counsel claimed that that matter had been introduced merely to suggest something prejudicial to plaintiff's claims. As a matter of fact, however, the land tax value of the property left to Malcolm Dixon's family was £6494. There was also an insurance policy for £IOOO, on Malcolm's life, the premiums for which were to be paid out of the estate. Again, Thomas Dixon, sen., had paid £I4OO of Malcolm's debts. The land tax value of the property left to plaintiff was £6065. Mr Raymond pointed out that plaintiff's sisters admitted the claim, although they stood to lose by its suceess, whereas Mrs Malcolm Dixon j opposed it. If plaintiff did not get the money he was claiming, the value of Mrs Malcolm Dixon's share of the residue of the estate would be increased materially. After the hearing of the evidence, the defence practically abandoned, objection to £:J00 of the plaintiff's claim, it having been proved that from his own money plaintiff had lent hia father that amount. It was contended on behalf of the Public Trustee that plain-

tiff hail merely been a "(lummy" or trustee for his father in the Queen's Flat property, to avoid payment of graduated laud tax. Mr Alters suggested that the son had only a loan of the farm at Queen's Flat. Many farmers, he said, let their sons work until middle-age for them, often without wages, and said, "It's all right, boys, the property will be yours when I'm gone. 7 ' It was a family compact, acquiesced in by the plaintiff, and in the final disposal of his property the father intended to do justice to his son. Mr Alpers suggested that this justice had been done by the plaintiff having been left a farm twice as valuable t as that which had been bought on the sale of the Queen's Flat property. Counsel for the defendant also suggested that, outside of the £3OO, the claim was a trumped-up one, both testator and his wife being dead. He laid some stress upon the method of division of the estate. :

In summing up, his Honour pointed out that there were only two abstract principles of law that need concern the jury. One was that a claim made against the estate of a deceased person must be very rigorously scrutinised and sifted. The other was the legal presumption that where a father handed over money or property to his son, it was a gift and not a loan. The Public Trustee had seen fit to come into court and suggest, firstly, that Thomas Dixon, jun., was a dummy for his father, and secondly that he was a liar. ''The Public Trustee," continued his Honour, "has come here and branded this young man as a liar, in a most emphatic way. But he does not stop at branding the young man as a liar —he embraces the young man's sisters, Mrs Marshall, who is here, and Mrs Quigley, whose absence has been explained,- in his condemnation. That is one of the defences the Public Trustee offers. Of course, if you think the plaintiff is a 'dummy' and a liar, there is an end of the matter. But if vou think that the documents in this case, fortified, as.they are, by the evidence of himself, are sufficient, you .will award him these moneys.''

His Honour pointed out that the position of the Oamaru property was the kernel of the matter. After dissecting the evidence relating to that, his Honour emphasised that the transfer from the previous owner was taken in the plaintiff's name,- that the plaintiff was the registered owner of the farm, that a mortgage in favour of the Public Trustee was executed.by the plaintiff, and that the balance of the purchase money was secured by a mortgage in favour of the father. What was the object, of these things? Jt had been suggested that the father wanted to escape the graduated land tax. But there was not a word of evidence to warrant the jury believing that. The responsibility of "affirming the defence which suggested fraud and '' dummvisrii'' rested on the Public Trustee. Reviewing the evidence further, his Honour said that, as far as he was able to judge, the plaintiff was regarded as the owner of the property anit acted as the owner, without interference from his father. Surely profit made from the sale of a property belonged to the man who had been working the property and was the owner of it.. Apparently the relations between father and were cordial, and on the sale of the i Oamaru property the father wanted to ' buy his son another farm, and the son, ! trusting his father, handed over the money. As to the matter of interest, if ;.the jury were satisfied that Dixon, sen., used the money and got interest on it, plaintiff would" be entitled to interest. But the jury must be satisfied on both points. After a retirement of a little under an hour and three : c|uarters, which included the luncheon adjournment, the jury returned with a veridet for plaintiff for £2158 Jl/8. That was the amount of the principal which was claimed, a claim for £:SGS 8/2, interest, not being allowed. Judgment was entered accordingly, with costs, as per scale, including costs for a special jury, and for a second day and second counsel for each day.