SUPREME COURT. CIVIL SITTINGS.

Star (Christchurch), Issue 2595, 19 July 1876, Page 2

SUPREME COURT.

CIVIL SITTINGS.

TOEODAY, 3VVX 18.

(Boforo his Honor Mr Justioo Johnston, and a Speoial Jury.) TTJBNBB AND OTHBBS V. WIMON AND ANOTHER.

Evidence of Benjamin Monk continued .— Tho Olerk thon oallod Mr Wilson in, and told him what witness had said about Mrs Turner leaving. Mr Wilson asked tho Olork if he had not the aooount. The Olerk repliod ho had, and looked on tho filo, and found the aooount, whioh instead of £10 was for £3 15s. Witness asked why he had been asked to sign a oheque for £10 when the aooount waß only £3 15s, | when bo (tho Olork) replied that ho did not know that Mrs Turner had loft tho house, and that ho thought the wholo of the £10 might be wanted. Had no further oonvorsation until last Saturday, whon thoy had been talking about the ostato. Wilson had said it was a pity it oould not have been sot* tied out of Oourt. Ho addod that he had hoard it was his (witnoss') fault that it was not ao not tied, as Mrs Turner was willing to suoh a course. Witness then produced a letter from Mrs Turner in answor to ono whioh he had written, Wilson thon said ho was sorry ho had thought it was witness who was tho oauso of the matter not being settled out of Oourt. Ho added he was glad witness was not to blamo, as ho (Wilson) had somo doop laid sohome to ovorthrow him had he been in favour of pressing the mattor into Court. Witnoss ftßked what tho sohomo was, and ho replied that ho would not toll him thon j but that it would surprise him if ho knew all that ho (Wilson) did. Witnoss repliod that he had no doubt it would. Thoy then separated, witness saying that whon in tho box ho should speak tho truth alfeot whom it might. Wilson had allowed him previously to go through the aooount, but not thoroughly, Wilson, himself, always boing with him. An aooountant was wanted to go through tho books extending ovor a period of six or seven years. Was not aware that the books oontained any othor aooounts than thoso oonneoted with this estate. For tho last nine toon years witnoss had lived noar Turner's ostato and know it thoroughly. Had boen ovor it sovoral times sinoe his appointment as cotrustee. Had himself, for Mr Turner, in 1864, laid down eighty aores in grass upon that Eortion of the property which wae now freeold. In addition to that, about five or six hundrod aoros had boon laid down by Turner bofore his death, on tho freehold and preemptive right. Was over tho estato last year, also on last Friday. In bis judgment tho oondition of the property, so far as grass went, was not so good by ono third as it used to be. Tho best land had beon bought up and heavily stookod. Tho grass was principally Yorkshire fog and Capo wood— on tho freehold as woll as tho run j and thero was not muoh ohanoo of grass whilo Capo wood was thero, for it smothered it. Had had fourteen years' oxperienoo as a farmer. Had beon in Oourt during tho trial. Tho expenditure of £1000 for grass seed would not bo a judioious expenditure for that ostato— oven good grass soed. Considered that to spend any money on that place would bo injudicious; that was, to spend any monoy on tho sandhills, on aooount of its shifting oharaotor. With regard ta tho froohold portions of the run, tho expenditure of tho money, as had boon dosoribod, would not bo for tho bonoflt of tho estato, but would be a loss, and not what; a prudont man would do with hia own. With regard to the gums as timbor, ho should say thoy woro of very littlo uso, booauso thoy oould bo bought anywhere, twolvo or fourteen yoars old, for about oighteenpenoe each. For tho Turner proporty thoy were not good sholtor, and wero not required whoro thoy wero planted. Know Mr Wilson's property adjoining, whioh thoy sholtored from the Bouth-west outting winds. About an aore of Mr Wilson's seotion was laid down in hops. Tho expenditure of £500 on that plantation would not, in his opinion, bo a justifiable ono. Tho plantation took up tho beet land on tho farm, whoroas it oould have boen plaoed on pooror land, whero it would have given better sholtor to tho ostato. Should say 5s por ohain would bo a fair valuo for tho drain referrod to.

By Mr Joynt : Novor asked Mr Wilson for a copy of tho aooounts without the books. Ho said aooording to the will he oould not allow tho books to go out of his ofiloo. Witness spoko to him a fortnight aftor ho know he was app: intod about having thoacoounts audited by au uooountaut. Oould not say when ho first suggested having tho books romoved from tho ofiloo to Mr Wynn Williams'. Boforo ho was appointed trustee ho novor looked at tho hooks that ho was awaro of. Ho would swear to tho best of his boliof that ho never had. Direotly ho was appointed, Mr Wilson showed him a largo book in whioh Mrs Turner had signed her name in various place*, That,

was oil he showed witness. He showed him how niooly the hooks were kept. That was not the timo witness said tbey ought to be audited by an aoeountont. On subsequent oooasions he looked into the books ia the same way, in the presenoe ef Mr Wilson and the olerk. Oould not say how many times he. had looked into the books. The learned oounsel would be able to guess as well as the witneßS oould.

Mr Joynt : Does your Honor think that this is a fair way of answering me. Monk is now attempting to exonerate himself by damaging Mr Wilson. Tho Oourt : It may be .that Monk should havo been with the plaintiffs, but as he is a co-defendant I really cannot see that your lino of examination oan affeot the issue of the oase.

After somo disoussion,

Cross-examination continued : Whon he asked the hooks to be sent to Mr Williams' offioe, he bad been co- trustee three or four months— perhaps longer. It was about four months ago. Mr Wilson then said that the books should not bo sent away, but they might bo examined in his offioe. Witness did not name any accountant, but left that to Mr Wynn Williams, the solioitor to the estate. Mr Williams told Wilson that he ought to send tho books to his office, but he refused, eubsesequently saying that he had consulted anothor solicitor, who had advised him not. Did not remember Mr Wilson asking him to mako an appointment, the time not being a mail day or a Saturday; but he said they would take two or three days at it after the grain season. Witness was ill for a short time. Remembered Wilson going to his hotel at Kaiapoi about March last. It might have been Feb. 7. Ho did not then ask witness, to make an appointmont to go through the aooounts — at least ho did not reoolleot it. Mr Wilson did ask witness to go through the accounts with bim at the offioe. He told him every time he was in town to oall in. No appointment, however, was ever made; and whenever witness called Wilson was always busy, and nover gave him the time. Witness hod not rooeived a writ in this case. Mr Williasss had aooepted servioo. Mrs Turner and witness were never at the books together. He did not remember it. Mr Wdson wrote asking thorn to go and examine the books, but thoy were not thore together. Mr Ohartres never wont through tho books with witness — in faot the latter had never been through them at all. Wilson had said he would " overthrow his position," but did not further explain himsolf. It was said in rather a friondly way. Wilson said he hoped he (witness) would not do him any injury. It moro amused witness than frightened him. Capo weed had inoreased very muoh of late years. By Mr Wynn Williams: When witness had been to Mr Wihon's offioe to go through tho aooounts, the plaoe had always been in confusion, and Mr Wilson was called out evory two or three minutes. There were con* stant interruptions. Witness had frequently been to the offioe on his invitation lor the oxpreas purpose of going through the books, but Wilson was always to busy to attend to him. When Wilson turned over the leaves of the book witness had not on opportunity of examining the items in detail. Had not been able from thia kind of examination to tell what had beon expended on grass seed. Saw somo of the items, but not the whole. On ono oooaeion he told witness that he had no right to interfere with anything he (Wilson) had done prior to witness' .appointment, aa ho was onsworable for that.

William P. Oowlishaw deposed : He was solicitor for the plaintiff in this suit. Before the prosent aotion oommenoed be made several applications, on behalf of Mrs Turner, to Mr Wilson, asking for permission to examine the trustees' aooounts, and also to be furnished with a copy of the same. The first application was dated Fob. 22, 1876. (The letter was road. It was an applioation for a statement of the trusteeship, showing how the various moneys had been disposed of ; and also applying for an increased allowance for Mrs Turner's ohildren.) Reoeived no reply, oithor by lotter or writing to that oommuni* oation. Wrote again on the 25th same month. (Letter read. It requested a reply to tho last letter.) Reoeived no reply to that. Wrote again on March 1. (Letter read, beiog a still more urgent applioation, and asking for information as to what had taken plaoe at an interview between witness, Mr Wilson and Mr Monk.) Received no reply to that, and wrote again on Maroh 6, again urging a reply. Wit* ness hore wished to explain that, on February 25, he reoeived a letter on tho subjeot of tbe maintenance, and aoknowlodging tho reoeipt of tbe previous letters. On Maroh 10 reoeived a reply to the letter of Maroh 6. (Letter read. It stated that Mr Monk and Mr Wilson had conferred together, and did not recognise Mr Oowlishaw's right to interforo in tho matter, as the trustees were perfeotly satisfied with Mr Williams. There was no objeotion to Mrs (Turner goir.g through tho books, the letter continued, and she was perfeotly satisfiod with the way the estate had boon managed. Thero was no objeotion to havo tho daughter properly educated, and with regard to Mrs Turner's inoreased allowance, that lady had rooeivod the sum of thirty pounds quite reoently in addition te her ordinary allowanoo. Another letter was then road from Garriok and Oowlishaw, again asking permission to inspeot the books and for a oopy of the aooounts whioh Mrs Turret was prepared to pay for. Another letter from Garriok aud Oowlishaw stated that Mrs Turner had good grounds for enquiring into the oon* dilion of tho estate, and would attend with an aooountant to inspeot tho books on the following Friday.) Witness continued : In pursuance with this last letter on Maroh 17, Mrs Turner and himsolf attendod at Mr Wilson's offico to inspeot tho books, but Wilson deolined to produoo them or to give thorn any information, | saying that ho had employed Mr Staoe to mako a valuation of the property, and until that was done bo would not show bis books. Witness wrote again on Maroh 18. (Lottor road, stating that tho solicitors did not soo why tho valuation should prevent Mrs Turner being allowed to see the books, and that they would again attend for that purpose.) On going to Mr Wilson's in accordance with that letter, they found that Wilson bad left town without having left instructions for them to see tbo books. Mrs Turner brought witness a lottor on tho 3rd April from Mr Wilson, in whioh pormission was given to that lady to inspect the books at tbe offioe, und saying that ho had also invited Mr Monk to be present. The letter wound up. by stating that the proporty had enormously increased in valuo sinoe the last valuation. The next letter was from Messrs Garriok and Oowlishaw, giving notico to Wilson of the present aotion. As intimated in the last letter, he (witness) attended on the following day at Mr Wilson's office with Mrs Tomer and a olork of his (witness') own. Mr Chartors

pruuueed luy uov.i iwU tuuoucta tuiU Uwjf made a oursory examioation of them. Mr Ohartres also had a copy of accounts. Witness asked if they were for Mrs Turner, and he said no— that he did not understand tbat Mrs Tuner was to be furnished with a copy. Witness then told him that they wanted a copy, and asked him to make one and let them have it. He promised that they should have it iv a week or ten days, but they never received it. His (witness*) clerk copied a few sheets of the accounts in Wilson's office, whioh he now produced. He took it to be a summary of the condition of the estate (produced). Witness had since recently attended defendant's office for the purpose of making further examinations, but Wilson refused to let him see the books and accounts, and said he would not produoe them unless advised to do so by Mr Joynt. Witness then wrote to Messrs Joynt and O'Neil, on June 27, asking them to advise Mr Wilson to allow an examination of tho books. To tbat no reply had been reoeived. [Several mortgages and other deeds were here put ia as ingredients in the ease, and were taken charge of by the Registrar.] With reference to tho conveyance, " William Wilson and Another to William Mover," the consideration was £1100 ; and in the mortgago book to Wilson and Monk, the sum scoured was £900. Witness had had considerable experience in investing money. Where £1100 had just been paid for a property Mr Joynt objected to this line of examination. It oould affect none of the issues. The property in question was freehold, and the issue on the subjeot referred specially to leaseI hold property. His Honor read iasne thirteen, and did not think Mr Garriok could bring out snob evidence, unless a fresh issue wero pat in, or the issue amended.

Mr Garriok said the plaintiffs had bean E laced at a very serious disadvantage, not aving had the opportunity of getting the necessary information beforehand. After some discussion, Mr Joynt said he hod no objection to the issue being amended so as to inolude the words " charge of insufficient freehold security."

Witness continued : Assuming the consider* ation £1100 to represent the value of the property, and that it consisted exclusively of land, the witness was of opinion that it would be imprudent to lend more than twothirds of the value. If the value was also partly made up of buildings he would not lend so much. The Trustee et an estate was not justified in lending on a speoulstive value. Knew the locality of the property in question, and also knew the house was mortgaged froan the outside. In his opinion it would be imprudent to lend £900 upon it. He would be very sorry to give £900 for it. The market now for lands was falling. The date of that mortgage was 1875. Had made a search in the Registry office for the sections mentioned in the aooounts shown to him (witness) as security for a loan of £200 from Wilson to De Burgh and Place, but did not find it. There was no suoh mortgage registered. It being now five o'olock, the Oourt ad* journed until ten o'olook this morning. Wbdkbsdat, Joxt 19 J This case was resumed at ten o'olock. The same counsel attended as before. Tbe firat wjtnesa oalled was Harriet Charlotte Turner, who deposed : She was the widow of Chas. Brown Turner, deceased, and i guardian to the infant children, the plaintiffs iv this suit. The defendant, William WUson, had acted as sole trustee in her husband's estate. Had been in the habit of receiving her annuity, and the maintenance money for the ohildren, every quarter. There were three children, all girls— one was nine, one ten, and one eleven. Sometimes Mr Wilson sent her allowance, aad sometimes she went for it. At first; she got £100 a year for herself, and £100 for tho ohildren. After that she had an inoreaseto £120 for the ohildren. Twelve months baok it was increased to £140. It had never been more. The ohildren were all at sohool. Had house rent free all the time by her husband's will. Tbe house left to her by her husband had now been sold, and Wil* son paid rent for her. Used to go to Mr Wilson's office and sign the accounts after the olerk had read them over. Witness did not examine the accounts for herself. They were read to her from a book. Used to go to Wilson's place at his request. He had said he wondered her husband had not left her exeoutrix. That was two or three months after Mr Turner's death. He said he weuld* treat witness as though she had been an executrix, and invited her to go to the office, saying he should oonfer with her about everything ; that he would like her opinion, but of oourse he could do as he pleased. On some oooasions he had told witness what he was going to do. He told her he was going to send up some grass seed and some trees to the run, and she did not object. He said he wanted to im* prove the farm for building purposes. He never mentioned the amount he proposed to spend. Likewise told her upon one ocoasion tbat he was going to lend money to tho Agricultural Seoiety on mortgage. He did not confer with her from time to time on the other securities whioh he made. They did not get on very well together even from the beginning. Wilson had promised to give her more maintenance money than he did. He said thero would be between eight and nine hundred earning in, and that be would give her £150 for the ohildren for the first year, but when she went for it he would only give her the hundred, saying he considered it was on ample allowance, and tbat witness was better off than she ever had been. Witness told him that it was her husband's money, and she thought she and tbe ohildren had the most right to it. He then said that the noxt year he would out her down to fifty, and that some one had told him he should find her out. She did not know what he meant. That was about two months after her husband died. She did not go to the office again for about four months during whioh time she had no money from him. In consequence of what she was told at the end of that time she went to the office and got a oheque, whioh was already drawn out for £50— half for herself and half for the ohildren, being at the rate of £100 a year for each. Mr Wilson went to witness' house to see her about three months afterwards, and began speaking about what he had said to her at the office, and that he was very sorry she had taken it in the light she had. Witness told him that she considered he had insulted her and that if her husband had left him power he had not left him a right to insult her when she went for hsr money. He said that as the children grew older be would allow bar more money. She saw him subsequently, and he often said things that she did not like. Wilson went to hsr a few weeks after her husband's death, and said that Mr Wynn Williams had proposed to give her 5s a week for each ohild. She replied that that was ridicalcas, and it would not find them in boots

WitueM uuMie toe remark she did not know what Mr Williams could have thought kb*y had been brought upon. All tbe way tiroagh Mr Wilson had threatened to take her children away from her if she married say one that be did not approve. There was « pro* vision in the will wbich made bim guardian of the children in the event of her marrying again. He also threatened to take her houso and furniture from her. About fix ot seven months after her husband's death Wilson went to her and said be would tell her what her true position was, and that ahe had no right to anything except a hundred a year. and that by giving her a few hours* notice he would turn her out of the house, and take the furniture. She said her husband could never have meant that. She had heard ths will read, and did not believe there was each a power in it given to the defendant. Witness did not take advice, because she thought sho had no power to do anything. She received a letter from Mr Wilson, saying tbat be keard she was seeking advice, and telling her that all her legal expenses would bave to be pail out of her legaoy. Defendant continually im* pressed upon her the fact -that she bad no power in the estate, and that ahe had nothin* bnt the £100 a year to expect. He saH ii she married she would ceate to become tbe guardian of her children. The trap witness's husband bad left her was learning nn*afe, and she asked Wilson if she might sell it and buy another. He aaid she might. She sold it and then he wanted her to bave his trap, but ahe did not like it, and (therefore did not get it She afterwards spoke to him about it again, when be said tbat a trap was a luxury. She replied that luxury or not she had been used to it. Subsequently, however, he bad aiked her if she would not like hia trap. On trying it , she found it was too heavy for her pony, and ahe told him so. She. however, kept the trap. There was no agreement what she should be charged for it, but she afterwards saw in the account book two entries for a trap, one- for £30 and the other for £35. She drew Mr Wilson'e attention to the fact, and he then said that he had had the trap re-valued. She had previously seen a trap tbat she liked, and sent it to Wilson for approval. He then bought it for himself. l%e price was £33, and it was a better trap than the one she received, and which has been Mr Wilson's. Went with Mr Cbwliahaw three times to Wilson's office to demand the books. Received a note from Mr Wilson, telling her the books were open for her in* spection, and on going to the office for the third time they were open. Mr WUson never furnished her with any account. Had no knowledge that £1000 had been spent on grass seed, and £500 on the plantation. She only knew of £100 for grass seed and £830 for trees. She had seen that in the book. Did not consider that Mr Wilson conferred with her on tbe subject of the trust. Remem* bered Mr Monk being appointed a trustee. Told him that she should like to have tiie books made up and properly audited. By Mr Joynt : Mr Wilson had told her ha ' should treat her as an executrix. It was en the same occasion when he had told her he would let her know her fame position, and advised her to go to Mr Duncan and get th* will explained to her. Wilson procured fee her a copy of the will, and gave it to her. Did not rememberMr Wilson saying that although he should be glad to consult bar, be alone waa responsible. Wilson told her first tbat the estate oould well afford to give £150 a-year. Whatever extra she got, Mr Wilson proposed himself. The youngest child was nine '*y»»rtht old at Mr Turner's death, and the eldest four. When Wilson had spoken to her about the grass seed, he said be wanted to improve tiie - paddook that was afterwards planted for building purposes— that tiie railway would most likely be there, and that would make tbe land more valuable. He aaid there might be a station near tbe land. A piece of th* land was afterwards bought by the government for the railway-station. Wilson told her the land would be valuable some day for building par* poses. Witness was ao judge of carriage!* She knew a good one from a bad one. The one whioh Mr Wilson kept was tiie lighter, newer fashioned, and nicer looking. Knew that tho trap would be oharged to the estate. WitueM oould look over the account- book, if she liked, once every year or fifteen months, when it waa read over to her and she signed it. Witness had only been through the books once, and then it was with Mr Cowlishaw, when they had not time to make a thorough investigation. That was the first time she knew of the £1000 for seed and £500 for planting. Did not ask for an increase in allowance until sending the children to school. They all three now went to Mrs Clarke's as day scholars. She oould not say exactly what their education, with books, As., cost.

Edward Thompson deposed he wae valuator to the Trust and Loan Company, Christchurch. Had inspected a property belonging to May tar, in Gloucester street. Had formed an esti* mate of its value, wbioh he set down at £500. and £80 for the buildings wbich were of no value to the property, and would have to be removed. A prudent man would not advanoe more than two-thirds of that sum of £580 on the property. By Mr Joynt: Property in that peeitUß had not been increasing in value for the last ten years— at all events very slightly. Charles Benny, clerk in Garriok and Cow lisbaw's, deposed to copying certain accounta produced from accounts furnished bim bj Mr Chartre, in Mr Wilson's offioe. It wai about two months ago.

William Wilson, one the defendants, deposed : He lent the sum of £156, moneys of the estate, to a man named Walker. Witness was the same William Wilson mentioned as lessor of that property. He was owner of the freehold. The money lent was expended upon the erection of a building on the section. Made an advanoe of £200 to a man named Barrett. The security and leasee were not registered. Was under the impression tbat tbey were. Mr Wynn Williams had been the solicitor to the estate for the last seven years, and waa ao still. One of the trustees of tbe wife's settlement was a solicitor and his brother-in-law. Invested a portion of tbe trust fund in shares in the National and Colonial Banks, and the first payment was made for Rati nal fharee on or about Feb., 1873. A total of £176 had been invested in National shares, and £8 had been received aa dividend, and paid into tbe account of tbe estate. Invested a farther sum in the purchase of Colonial Bank shares of £190 12s 6d. That was between June, 74 and '75. There bad as yet been ro dividend from tbe Colonial Bank. The National Bank shares were £10 shares, of which £3 10a had been called np. The estate had fifty of these shares. Tbe Colonial Bank shares were £5 shares. The estate had purchased seventy- five of those shares. (Witness here produced ths book into which the affairs of the estate wers entered. That book related alone Is tho Turner estate. Witness had an entire ptoonal * knowledge of the contents of the book. Thaf" wasjfltho only book that referred • ths 'a

Turner estate oxoept tho day-book, whioh also contained memos of the expenditure in Turner's Estate, but everything was entered in the ledger. Had shown Mr Monk that book as woll as the day-book. Thoy wero lying thero for hie personal elimination for weeks. Witness went through tho ledger with him, but was not quite sure that ho wont through tho day-book. Turning to an entry Dec. 11, 1869, witness read—" grass seed for station, £26 12s 5d." Supplied grass seed for that amount for a portion of the leasehold of the estato. Turned to entry Juno 27, 1872, found—" grass and olovor soed for run, £128 lis 3d." July 27— "seed for run, £227." August 29— "grass seed for run, £304. 9 a 9d," January 15, 1873— "run improvements, £897 19a." The detailed accounts would show the pavtioulan. Oould scarcely tell from memory what the improvements wero, but could toll from his lodger. Aooording to tho aonount whioh Mr Garriok's olerk copied the amount was for grass seed and planting for shelter. Could not say how soon that item was entered after tbe transaction. Could not tell why tho olerk altered tho torms oi tho item in posting. Witness never made any entry in the book himself. Did not give his olerk speoial instructions exoepfc for any special sales. Would not give him instructions about tho entry of the item in question, whioh he would not oonsider a speoiol item. Found an item July 6, 1874— " station improvements, £175 25." Could nob, from memory , toll what thoso improvements wore. From the aooounts whioh Mr Garriok held in iris hand, witness presumed that was the same as planting oats, &0,, as copied by Mr Garriok's clerk. Entry, Nov. 27, 1875, "station improvements £68 " Had no doubt that was for planting. Jan. 15 "ditto, 80ed5,&0., £150." An item £150 in the accounts produced, " seeds, tools, and trees." The two items referred to tho samo account. The total for seeds was £1054 4s 9d, and for planting £393 2s. Witnosß was a seedsman and nurseryman, and had himself supplied all those seeds. Deo. 4, 1869, "John Campbell, outting drain, £17 17," referred to forty-nine chains of drain that was cut on tho freohold land adjoining tho homestead." Witness thought at 8s 6d a chain. This drain had nothing whatever to do with the drain that had been referred to. From Mr Tumor's death to 1870 witness farmed tho property himself— about nino months. Item Jan, IS, 1873, " fencing on run, £48 12s 6d," referred to the fencing of tho plantation, separating the plantation from the farm. Itom July 29, 1875, "Famthom, work Ohaney's corner, £46 25," was for fencing, cutting drain, &0., and a oertain amount of ploughing (voucher put in with particulars, Mr Joynt saying he had vouchers, for all these items if they wero requirod). July 31, 1875, tho item "half cost of ereoting yard, £10," was for improvements whioh the estate reoeived, and was part of an odvanoo of £300 mado to Mr Straohan. July 6, 1874, entry " Elliott, planting trees, £17 65," related to the plantation. Maroh 14, 1875, itom " Elliott, work at run, £9 25," also referred to the plantation. April 29, item "Elliott £1 18 b6d and 16s" both referred to tho plantation. Nov. 23, 1872, item " Elliot, planting trees on run, £13," also referred to tho plantation. [Xof t sitting.] I