DISPUTED PROPERTY.

Waikato Times, Volume 106, Issue 17885, 4 December 1929, Page 6

DISPUTED PROPERTY.

DECEASED MAN’S ESTATE. TO WHOM SHOULD IT GO? KING COUNTRY WOMAN’S CLAIM. On behalf of Amelia Alice Facwell, of Aratoro, spinster, Mr 11. Hine (Te Kuiti) sought a declaration before his Honour Mr Justice Herdman, at the Hamilton Supreme Court to-day, that a property at Aratoro, Te Kuiti, belonged to heir. The defendant to the action was the Public Trustee, for whom Mr F. A. de la Mare appeared. The statement of claim set out that Richard Stevens, late of Aratoro, near Te Kuiti, and plaintiff had lived together as man and wife from October, 1909, until December 9, 1928, when Stevens died. The Public Trustee was appointed administrator of his estate. That on July 31, 1911, Stevens and plaintiff came to New Zealand, when plaintiff brought with her certain household effects and upwards of £IOO in money. That about November 1915, Stevens purchased on her behalf, but in his own name, a house property in Wanganui for £SOO. Of this £340 was represented by a Government mortgage of £340, and of the balance of £l6O plaintiff paid £IOO of her own money, Stevens paying the £6O by instalments over a period of months. In 1917 the property was sold for approximately £3OO over and above the amount then owing on the Government mortgage. Of this sum £290 15s was lodged to the credit of plaintiff’s post office account at Wanganui. In or about June, 1915, Stevens met with an accident to his hand, in consequence whereof the Government awarded him £2BO compensation. This sum, with other small amounts, to the total of £3OO, plaintiff lodged to the credit of her post office account. Plaintiff declared that Stevens made a gift to plaintiff of the house property and all the other moneys mentioned absolutely for her own use and benefit. In the year 1920 Stevens and plaintiff moved from Wanganui to Aratoro, where they took up a farm property, comprising 122 acres. Between January, 1920, and August, 1923, plaintiff paid out at different times and from her own moneys, the sum of £579 for the purpose of removing from Wanganui and in the purchase of the Aratoro property, which was, however, registered in the name of Stevens.

Advances to StevensPlaintiff, therefore, asked for a declaration that the Aratoro property was held in trust for her, and that there be transferred to her any interest in the property to which she is entitled. She asked judgment for £579 moneys advanced by her to Stevens, l’or a further £212 14s 6d, being interest on such advances, until the date of Stevens’ death, at the rate of four per cent. Mr Iline said Mrs Farwell from 1901 till 1909 was housekeeper at Portsmouth, England, to Stevens’ parents. Stevens and plaintiff, from 1909, lived together as man and wife, quite happily, until the date of his death. Stevens had been an artificer in the Royal Navy. In T9ll Stevens, having left the navy, they decided to come to New Zealand together, she bringing with her £IOO in cash and a number of effects, as well as an infant child. A second child was later born to Mrs Farwell, of whom Stevens was the father. They settled at Wellington for a time, and later shifted to Wanganui, where Stevens worked as a mechanic, then as a factory manager, and later as a fitter in the Government workshops. As long back as 1892, said Mr Iline, before he met Mrs Farwell, and when he was quite a young man, he married a half-caste Maltese girl of 16 years in Malta. He left her in 1901, when he agreed to pay. her 10s per week as long as he remained in the navy. Since he had left the navy he had paid her nothing, and'had not heard from her. There was one son of the marriage, who was in Malta. Stevens’ life had been insured for £2OO, and this money, on his death, was paid to his wife in Malta.

Plaintiff, Amelia Alice Farwell, said that when she and Stevens came to New Zealand, and they went to live at Wanganui, she gave Stevens the £IOO she had saved, to pay part of the deposit on a house which they had purchased as a speculation. The house was put in Stevens’ name. Altogether £l6O was paid, and the property was later sold for £3OO over and above the mortgage. This money S’tevens handed to her, £290, to place into her account. Stevens later met with an accident, and got £2BO from the Government as compensation. This was paid over to her by Stevens, to bank in her own name. Stevens was in receipt of a naval pension of £79 a year. This, with his wages, after deducting pocket money, he handed to her to keep the house on. She later gave Stevens £4OO to purchase the Aratoro farm. His Honour: And these moneys he gave you, was it understood they were an absolute gift?—Yea.

His Honour: How did the transfer come to be placed in his name? Plaintiff said it was merely an oversight. She was known at the time as Mrs Stevens.

In answer to Mr de la Mare, plaintiff said that from 1920 until Stevens’ death she did the actual work on the farm, while Stevens worked at the mill. Stevens handed her a certain portion of his wages each week to run the house on. She paid for 100 fencing posts, wire, grass seed, manure, and other requirements of the farm. When she handed over the money to Stevens to purchase the farm there was no mention of interest.

No Claim at AllPlaintiff said that after Stevens’ death she saw the agent of the Public Trustee at Te Kuiti, and put the position before him, and he had informed her she had no claim at all, not being Stevens’ wife. Mr de’ la Mare said the law was unequivocal on the matter. He did not see how this lady could succeed in her claim, unless, perhaps, she could prove a partnership. Counsel said if he might be permitted to have great sympathy with plaintiff, he would. Stevens treated this woman as his wife, and paid over his money to her.

His Honour: When a man hands over his money to his wife he never expects to see any more of it. (Laughter.)

His I-lonouc said it seemed to him that the lady was originally the capitalist.

Mr de la Mare did not see how this could be said. She put in £IOO, but the husband contributed £6O and later £2BO. Mr Mine submitted, a document in-

demnifying himself over a certain payment, which was signed by Stevens. In this he referred to “we” as the owners of the farm, clearly indicating another person. Mr de la Marc said that however much sympathy one might have with plaintiff, the Public Trustee had a duty to the wife in Malta. His Honour said that prima facie, plaintiff had advanced out of her own moneys, at any rate, £450. These payments had been traced through her bank book. Mr. Hine said the only moneys in the estate above the farm was tne insurance money— £2oo, which already had been paid to the wife. Considered it his Duty. Mr. de la Mare said the Public Trustee considered it his duty to put the facts before the Court. The wife prima facie was the next-of-kin, and in case of an intestacy the estate reverted to her. Counsel said the onlyway in which he could assist His Honour was to show the way in which judges had analysed the evidence in such cases and the rule they had laid down with regard to the proof concerning trust moneys. The Courts had consistently determined that where a trust was created the entire position must be clear as to what was intended to be done with the money and what was in fact done with the money. While he did not suggest perjury in the present case, he did suggest that where people were speaking in their own interests they interpreted statements in their own favour.

His Honour said that in the present case the history of the relationship of the parties must be considered. Plaintiff brought out with her to this country £IOO, which seemed to be the genesis of future financial transactions.

Position Very Difficult. His Honour: Could not this money advanced by plaintiff be regarded as a loan? 'Mr. de la Mare said the Public Trustee would have to plead the Statute, jusL as the wife would do were she defending the action in person. Counsel said he realised the position was a very difficult one and believed that neither Stevens nor plaintiff knew the legal position ’at the time the moneys were advanced. His Honour asked if the Public Trustee would consider writing to the wife suggesting that in the circumstances some reasonable settlement should be come to. Air. de la Mare said he would be glad to do anything His Honour suggested in this way. Of course the circumstances of the desertion of the wife by the husband were not known. The ;wife had had to live alone for 20 years and bring up her son. From the point o'f view of ppople not knowing the circumstances, it did seem very hard on plaintiff. The Public Trustee, of course, had a duty in the matter. iHis Honour said that unless some other way could be found out of the difficulty he would, as a last resort, ask the Public Trustee to suggest to the wife that a reasonable settlement be come to.

Two daughters of plaintiff gave evidence. One said she had asked her father on several occasions before his death if he had made a will. He replied that he had no need to leave a will as all the property belonged to mother.

Both daughters said they thought all along the farm was their mother's. Neither knew their father and mother were not married until after their father’s death.

The younger daughter said she heard her father and mother discuss the question of selling the farm and of her mother putting the money into a business of her own.

Mr. de la Mare quoted a number of authorities, and contended that these threw the onus on the plaintiff to prove that the money was paid by her 'for a certain purpose, that it was used for the purpose, and that the whole of the purchase money was paid. This doctrine was clearly laid down in both English and American cases. The evidence concerning the trust must be clear, unequivocal and irrevocable.

His Honour thought he would be justified on the evidence, in saying that plaintiff paid this money out of her own savings bank account. Mr. de ia Mare said it was quite clear the money came from her account. She said it was her own. Apart from this the position was not so clear.

His Honour: Prima facie it was her own money. She also gives evidence that it was her own and produces her bank book in support of her statement.

His Honour thopght it was of verygreat importance that plaintiff ran the farm, milked the cows, bought the fences, bought some of the stock and purchased other farm requisites.