SUPREME COURT.

Dominion, Volume 2, Issue 442, 26 February 1909, Page 9

SUPREME COURT.

. DECEASED NATIVE'S AFFAIES. ■ CLAIM AGAINST A SOLICITOR FOB ■. ~ ACCOUNTS.' .; .• • ■..-. A suit,- in which plaintiff was Hiraina Eeroraipuke Tβ Koraka, and the defendants were William Douglas Lysnar, solicitor,. and John Coleman, accountant, Gisborne, came before Mr. Justice Chapman yesterday. Mr. 6. Hutchison, of "Wanganui, appeared on behalf of plaintiff,. Mr. Bell, K.C.' (with him Mr. J. H. Kirk, of Gisborne),, for : defendant Lysnar, and Mr. H; 1 , .' Johnston (instructed by Messrs. Skerrett and Wylie) v for defendant. (Jolemau. . ■ ' ■ . The statement of claim set forth that plaintiff, upon the death of her husband, Pirihi Tutekohi, at Gisborne, in October, 1003, became the beneficiary of -the land known as Euangarehn D, containing about 135 acres, in the Poverty Bay district."' Upon August (3, 1897, Lysnar, acting on behalf of deceased, registered against the- land a mortgage, numbered 30029; from deceased to JVm. Chas. Good to secure the sum of i 325 on' August 28, 1902. Two years later he registered another mort-'j gage, numbered 9036, from deceased to himself to secure, the payment of; and further advances and interest on May.6, 1900.' Three days' later, he registered'' a. sub-mortgage from himself to AVilliam Matthewson to secure .£SOO on September'll, 1899, and interest. Discharges pf two mortgages, Nos. 30029 and 9036, and a sub-mortgage, No. 9038, and a mortgage, No. 9205, from deceased to Francis Sweetman Douglas to secure ,£BOO on Aufgust 1, 1902, ■ with in-, terest, were, registered . on 1 November 3, 1899.: According to plaintiff, tho rents in connection with the land, ■ .which .was leased from 1900, were'-until recently received by Lysnar. In August, 1903, he registered discharge of'mortgage No. 9205/ahd a mortgage,-No. 10256, from deceased ■to Jjbnis Thorloy Symes to secure MM : on February- 21, 1907, .with interest. If the last-mentioned mortgage, represented a genuine advance by the mortgagee,, such advance was received by Lysnar on account of deceased. Deceased's wi'l, which was prepared, by Lysnar three days before his deat) , . con-tained-tho following clause:"l alss deviea and bequeath Euangarehu T) Block-to my, trustees to.be, dealt with as dir»cted-by Win. .Douglas Lysnar; who was one oithe trustees." - Lysnar renounced'any claim to bo appointed an execu-, tor, and ultimately Coleman was appointed administrator of the estate, In December, 1904/ the tenant of tho land, : one Krause, offered : tq purohase it for i£2700, but. the offer was-de-.i dined.. About that date her. mark, it was: alleged, was obtained, to an authority to .the : administrator to ;sell for If a: sale .were made to one Symes it-was allegedly a fictitious one.. On-February 19, 190G, the foHomnß'.in-. strnme'nts wero registered:—Discharge.of mortgage No. 10256; transfer-No. 13060 from Coleman to Catherine Symes,in consideration of -*8550, ant! mortgage : No. Hill from Mr. and Mrs. Symes to Blanche Alice Barker .(,£800) and'Louisa.Barker. (iSlOOO)., As far as plaintiff was aware, there, never was any settlement between deceasedand Lysnar in. respect. of .the land. 1 She commenced an action, against Cole-, man:.as. administrator, but ,sha afterwards -released it in consideration' of the payment by him of £&0 in fnil satisfaction oi all-claims in the, action. -Wherefore plaintiff claimed: a. statemont of accounts either, to the administrator or to herself.-, : ..;.;■, ..-':■•:: .•■-...-

. By his statement of defence.defendant Lysnar. said; he believed that mortgage No. 30029 was: registered by the solicitors for the mortgageo. The prinoipal sum of .£325 was received by decoasod himself. >As to'- the . earn of J.-EBOO men-, tioned in mortgage No.- 9205, it was applied as follows?— £Wl 4s. was paid to the solicitor to Wm.' ; Chas.' Good to dischargo:'the''first mortgage, and the balance was received by: him (dev fondant) in 'part payment discharge of moneys then owing to him.. It was part of the ar~ rnngemcut under which the sum of.JESOO 'was .advanced by.Mrs.'.Douglas that he should colleot the rents of the land/and.out of them pay the interest on, the mortgage to her. By deceased's direction the balance of the rent was applied in part discharge of moneys due to lnmby deceased. For rent and'other, moneys received since 'deceased's death he had accounted to the ; administrator.. He denied that tho transaction .'evidenced by mortgage No 10258 t was not 'genuine,''and'he denied that 'iyo l money was actually received .by,deceased., l He hadv declined to act in' connection with the administration of. the. estate.. .As .to; the sale, of the property he had nothing to dowith the .negotiations. '.It. was ascertained to thosatis- ' n! \ r°?n of ■' ( ' he , administrator) and plaintiff and their legal advisers, that the sumriuo. ■, to >-.-}} m , .(Lysnar^-iexceeded, S-iOO/, .As regards the to': Mr.; Symes defendant. ■: :.vohmtarily;, offered ' ~co': 'acceptima a ineinorandum ' was. signed by v plaintiff and the other parties to the agreement.. This memo., it. was. affirmed,..constituted 'a. complete and finalstatement of accounts' ; ■"■•■'■ lie other defendant, declared that plaintiff, without undue influence or suggestion, ■ had' voluntarily consented to; the: sale of the pro?0 r fqna y d " d 7d 7 °i • role i lso P ltlintiff . on,April'. % 1 , ,, re,e ? s ed ; him from all claims.. ■".■-.:. Mr. ■ Bell submitted that his client (defendant. m S r > -T« entitled, to havi, the action dtt-" mssed. Vpon the. pleading there;was , no allegation of fraud on his part.' - ' '"- .. Thereupon. Mr..Hutchison put- in an'ameiidment alleging, deed qnestion was fraudulent;.and .void.: because there no ffi^T , the oosts ,to'. bo settl™ thereby j that no. bill, of. costs, or account had been Tendered !: and that the subject matter «; he deed related. to services by: a solicitor-of the Supreme.Court m respect: o f■:dealings with an aboriEinalNativo of New Zealand. ■ ?; length as to[ -his. dealings- mtU the deceased Rep ying,to f Mr -Bel], he stated that' the first .matter ho attended V for deceased ;was toUrra "R« to Pi/ his creditors', 20s. in the £ and to get his bankruptcy annulled. ..Then: lie was em-' ployed to rescue tho block in question from tho name of,■ Wi Pere and put it into deceased's

■His Honour:. When deceased came to sse von Mr. Bell:. Had, yon ; anything, to-do directly whate 9 '' ™ 6 e: '° S> ' mes ? .- Not:h '4 ■, know: that, , Krauso was willing at , that time to give a higher 'snni than was accepted from Mrs., S.vmesP-No. > ~ -. "° I . Ernest Ferdinand Krause, tenant of the property, was then examined. - .... •■■■'*.■ ■■, ' Mr. ■_ Bell: Are you ..one of : those who have shrred.up plaintiff to bring the action?-No. ■;■ What is your interest in the matter?—l iusf' want to see plaintiff get fair:play: ■ ■ ' ; Defendant the next witness, stated in .reply _to. Mr Bell, that although'-heads' [still administrator of.the estate,:he had not iurouglit• the action. '•':■"■' '' ■ . ;'■: ,; asked to make "the , attack -but declined ?—I: refused to: take ■■ proceedings. -'■ ■ ' ■' Plaintiff, in answer to her.'counsel, said that when,.] t was suggested to her that she should sell, sho- said she. did not care whether: she .■To:Mr. Beil: She remembered ."signing the consent to tho sale. .;,: ■ ■.•:;■ ..- ■■■; ~■ this stage the Court adjourned until 10 o clock', this morning. , .' -.-. ..;'■: