NOT A GIFT

Evening Post, Volume CX, Issue 139, 10 December 1930, Page 13

NOT A GIFT

CITY COUNCIL BONDS

"NO DOUBT AS TO JUDGMENT"

CLAIM DISBELIEVED

Tho Chief Justice, Sir Michael Myers, in his decision yesterday afternoon in the case in which thirteen Wellington City Council debentures of £100 each, with their interest coupons, wcro the subject of proceedings taken in tho ■Supremo Court by the Public Trustee ■against Victor Alfred Smith, electrician, of Wellington1, held that it had not been proved that the debentures, as claimed by the defence, were a gift donatis mortis causa (gift in contemplation of death) to Smith by tho late Martin Byrne. Judgment was entered for the Public Trustee. "At the last criminal sessions of the Supremo Court Smith was tried on a charge of the theft of the debentures, but the jury disagreed and a new trial was ordered for February next. The action t3kon yesterday was for (1) a declaration that the Public Trustee, as executor-of the estate of Martin Byrne, was entitled to possession of the debentures and interest coupons or -the.proceeds thereof; (2). an order for eleven debentures and all outstanding interest coupons to be delivered to* the plaintiff; (3) judgment for tho sum of £.220 5s 3d, being tho amount received by the defendant for the two debentures and interest coupons cashed by him. Mr. P. S. K. Maeassey, with Mr. C. Evans-Scott, appeared for the Public Trustee, and Mr. W. E. Leicester for Smith. PREVIOUS CONVICTIONS. . In1 the course of his cross-examina-tion in the afternoon, Mr. Macassey questioned the defendant about previous appearances before tho Court prior to this year. Smith admitted that ho had been convicted previously —three timos he thought. Mr. Maeassey: "Wcro you convicted as recently, as 1928 for theft at Wellington?—"l wouldn't dispute the date, but probably so." "Aiid fined £15 or three months?" —"There was no fine attached to it. I just had to pay the costs of the prosecution." ....-_• "Are you sure?"—" Yes, sir; the costs of tho prosecution were £30 I think." "What was the theft?"—"A wireless set." • "Were you convicted in 1925 at Wellington for theft and served a sentence of a month?" —"Yes; it was for the conversion of a motor-car." Smith did not agree that he had also been convicted in June of the same year for unlawfully taking a motorcar and had served a sentence of two months. Mr. Macajsey: "In 1912 were you convicted of breaking and entering on five charges and. received a sentence of two years' reformative detention?"— /'Yes, but I only served six months of ■.a.". ••■- ---..' Smith, in answer to a question by Ms Honour said he did not givo evidence on his. trial for theft. The Chief justice: "Your wife did?" —"Yes, sir." "Did your wife give evidence in the Court below before tho Magistrate?"— "No, sir." "Now you swear that this gift you ■falk about was made on 7th May?"— '■'.Yes, sir." •- , ■..••■ : . "How, theu, do .you reconcilo that with this —that you told tho police on Ist July that 'I cannot remember the exact date beyond What I estimate,' that is, a fortnight or three weeks before the date of the man's death? Had you forgotten then?"—" The atmosphere of the police station is not one to help you on though, is it?" The Chief Justice: "No, probably iot. J? ■■ •- ■ ■ ■ After glancing at the papers his Honour observed that Smith was fined in May, 1928. He and another man hadeach been fined £15. MONEY FROM BONDS. Questioned about the money received from the sale of the two bonds, Smith admitted that about £200 had been- spent within a short period. Smith said that the money had' been spent mostly on clothes. Evidence for the defence was also given by Ivy Smith, wife of the defendant, and a daughter. In answer to a question by Mr. Maeassey, Mrs. Smith denied that a considerable portion of the money had jbeert spent on drink. Neither Mr. Leicester nor Mr. Macas*ey addressed his Honour at the conclusion of the. evidence.. NO DOUBT AS TO JUDGMENT. His Honour saia he had no doubt whatever as to what the judgment of the Court should be. It was common ground that' the burden of proof was upon the defendant, and the defendant could only succeed if- he was able to show that the transaction whereby he became possessed of the thirteen debentures was either a gift to take immediate effect or what was called a gift donatio mortis causa. It was not Buggested in the present case that the gift was to take immediate effect. The defence was that the transaction was a igift donatio' mortis causa. The sole question then was as to whether the defendant had proved, satisfactorily proved, that the transaction was a gift. He had entirely failed to give such proof as it would be proper for the Court to accept. It was not even as though he had taken up from the outBet the stand that the transaction was ft gift. He had not done anything of the kind,_ or rather it was not as 'though his first explanation coincided ■with the explanation he had given in Court by way of defence to the action. After having made a statement that no one was present when tbe deceased handed the envelope containing the Bonds to him, he had sought to prove iffoat lis wife was present. Well, the 'circumstances, to say the least, wore cf a most suspicious character. AN AFTERTHOUGHT. Continuing, the Chief Justice said he Bad no doubt; as to what really happened. Smith had gone to see a solicitor, Mr. Sievwright, on 26th May, two days after Byrne's death. His own view was that Smith's wife was not with him on that occasion. Mr. Sievwright gave an opinion, ami, looking at the opinion which had been put in l)y Mr. Leicester, he should say that Mr. Sievwright was certainly not informed that.Mrs. Smith was present at the time the alleged gift was made; but Mr. Sievwright, perfectly properly and perfectly correctly in the opinion he gave, pointed out that in order to be a gift donatio mortis causa there should be corroboration. Mr. Sievwright had added that a gift might be perfectly good, but might fail on account of the fact that no one was present at the time it was made. "Now we find it alleged by the defendant," said his Honour, "that his wife was present. I cannot help thinking that was an afterthought made to try and improve the case." His Honour then referred to what had taken plate when the defendant was interviewed about tho bonds by Mr. Alexander, of tho Publiu Trust Office. He preferred to believe the evidence of Mr. Alexander to that of the; defendant. With reference to tho. defendant's statement ns to why he Is&sA flofebJßg aboni the, othpjs bonds

when, questioned by tho police about the ten, ho had little doubt but that Smith saw that he might not be ablo to hold tho ton. Smith had not said anything about the other three in tho hope that if' he lost the ten he would still bo able to keep three.

Judgment was entered for the plaintiff in terms of the prayor of the statement of claim, with costs according to scale as if for a claim of £500, witnesses' expenses, and disbursements.