SUPREME COURT.

Globe, Volume VI, Issue 650, 19 July 1876, Page 2

SUPREME COURT.

CIVIL SITTINGS,

Tuesday, July IS,

(Before His Honor Mr Justice Johnston and a Special Jury.) TURNER AND .OTHERS,V WILSON AND MONK.

Cross - examination of Benjamin Monk continued acres spoken of by witness, Turne: before his death, laid down from 500 to 600 acres of freehold and pre-emptive right. Witless had made special examinations since his appointment. So far as his judgment went the grass was not worth so much by one-third as at the time of Turner’s death. This might be from the best of the grass land having been bought up, and the cattle over fed the grass. The principal product of the land was Yorkshire fog and Gape weed. The latter prevented anything from growing while it was there. It was all over the ruu and freehold. There was a

little rye grass and clover of poor quality, which had no chance of growing while the Gape weed was there. He was of opinion that the expenditure of £IOOO worth of good grass seed ,on the run would have been injudicious. He did not think the expenditure of any money in seed would be judicious, because a strong wind would blow all the sand over the patches and cover the seeds. Ho would consider such an investment of money as likely to result in a loss. The plantation was not very valuable, as gums of thirteen or fourteen years’ growth could be bought for Is 6d. The plantation for the Turner property was not good shelter where it was placed. It would shelter Mr Wilson’s property from the cutting winds which might damage fruit trees. The expenditure of from £4OO to £SOO for a plantation in that place, would not in his opinion be for the benefit of the estate. They had taken some of the best land, and they might easily have got land elsewhere, which would grow nothing else where the shelter would have been better.

Cross examined by Mr Joynt—Defendant refused to allow the books to go away from his office for the purpose of being examined by an accountant. He told witness that, acting on advice, he could not under the will allow of the books being taken away. A fortnight after witness became aware of his appointment, he asked defendant Wilson to have the accounts audited by an accountant. The suggestion that the books should go to Mr Wynn Williams’ was made some four months after witness’s appointment. Soon after this defendant showed him in a large book the places where Mrs Turner had signed her name. That was all he saw on that occasion. Defendant was showing witness how nicely the books were kept, &c. On several other occasions witness looked into the books with defendant Wilson. It would be mere matter of guess for him to say how many times he had goue through the books in this way ; Mr Joynt might as well guess as witness.

His Honor thought that this line of examination was unnecessary, as it did not matter to the plaintiff if Monk had bad access to the books frequently, therefore the evidence was not relevant. The real truth was that Monk should have been made a plaintiff instead of co-defendant, as he really was complaining of the conduct of his cotrustee.

Mr Joynt contended that the evidence wap perfectly relevant, as he had to endeavor to disabuse the minds of the jury of complaints against Mr Wilson’s conduct. The greater part of the earlier portion of the plaintiff’s examination was directed to show that Monk had applied to Wilson for accounts, and had been refused ; hence he was unable to supply the information to the plaintiff. His Honor would under these circum stances allow of the evidence being tendered. Examination continued—Defendant, Wilson, gave witness an account (produced), and also said any time he wished to look at the books he could. No accountant was named by witness. He thought that it would be belter to leave this to the solicitor of the estate, Mr Wynn Williams. The latter told the defendant Wilson he should send the books to his office ; defendant considered some time, and ultimately refused to do so. Defendant Wilson did not make any appointment with witness for two or three days to go through the accounts ; he made some appointment to go to White Bock Quarry. Defendant came up to witness’ hotel at Kaiapoi in about March. He did not make any appointment to go through the accounts, he left in rather an indifferent way. The defendant asked witness once or twice to come in about the accounts, but he never never would give any time, Witness never received a writ in this action ; his solicitor might have accepted service for him. Plaintiff and witness were not at Mr Wilson’s office together examining the books, though defendant wrote a letter asking them to come. Witness never went through the books with anyone. Defendant said he had a deep laid scheme to overthrow witness’ position if he had gone against him, Defendant would not tell him what it was, and spoke in rather a friendly manner. Witness t oldjhim that if he knew what he knew he would be surprised, and witness replied that perhaps he should. The threat rather amused him than otherwise. The Cape weed was more prominent now than it had been before, but perhaps that was owing to the grass being bare. Cape weed had increased very much of late years on light land. By Mr Wynn Williams—The reason why witness could not go through the books with Mr Wilson was that the place was always in confusion, and Mr Wilson was continually being called away. On one occasion when an appointment had been made, the defendant told witness that he was too busy to attend to him that day. Witness had no opportunity of seeing the items in the books. Some of the items for grass seed were seen by witness in the books, but not half of them. So soon as he found them out he informed Mr Williams. Defendant told witness that he had nothing to do with matters happening prior to his taking the trusteeship. Mr Joynt submitted that he ought to be entitled to cross-examine this witness.

His Honor quite agreed with this, but it would be better for Mr Williams to recall Mr Monk when he came to his case, as it would not be fair for this witness to be cross-examined by his own solicitor. Mr Monk then stood down to be examined later on.

William Patten Cowlishaw deposed that he was solicitor in the cause. As such, acting under instructions from Mrs Turner as testamentary guardian, he had written several letters to defendant Wilson, asking for permission to inspect the trustees’ accounts and to furnish a statement of accounts [Letter 22nd February, 1876, put in and read.] This was the first of the letters on the subject, and no reply was received, and another letter to the same purport was written on the 25th February, 1876. [Letter put in and read.] A reply was received mainly dealing with the question of maintenance. Another letter was written on Ist March, 1876.' [Letter put in.] No reply was received to this. Witness again wrote on March 6th, asking for an answer to several letters preceding this one. On the 10th March witness received a reply stating that the defendant with his co-trustee Monk, were surprised that the firm of Garrick and Cowlishaw should interfere in the management of the estate, as they were quite satisfied with Mr Wynn Williams as solicitor of the estate. Mrs Turner had gone through the books, and had expressed by her signature her satisfaction as to the state of the accounts. She had at intervals of six months also examined the books and had any items explained to her by the accountant or Mr Wilson himself. On March Isth witness

wrote a letter stating that Mrs Turner had told him that she had signed the books, but no opportunity had .been afforded to her of inspecting the items. From circumstances which had occurred she desired to inspeetthe books and be furnished with a copy of his accounts, On the 17th March Mrs Turner and witness attended at defendant’s office to inspect the books, but he declined to produce them or give any information, giving as his reason that until the valuation, then in course of being made by Mr Stace, he would not allow any inspection. Witness again attended on the 24th March, as intimated in the letter of 18lh March, with Mrs Turner, but found that Mr Wilson had gone out of town and left no instructions for them to see the books. Mrs Turner brought a letter to witness on the 3rd April from Mr vVilsou, in which he made an appointment with her for the following day, for the purpose of going over the books. Witness replied to that letter, slating that proceedings had been commenced in the Supreme Court against Mr Wilson, to compel him to render an account of his trusteeship. Witness next day attended at Mr Wilson’s office with Mrs Turner and a clerk. Mr Charters, Mr Wilson’s clerk, produced books, papers, and vouchers of which they made a cursory examination. Witness saw Mr Charters had a copy of accounts, and be asked if they were for Mrs Turner. Charters replied that he did not know Mrs Turner would want a copy. Witness told him they would, and Mr Charters promised to let them have it in ten days*. No copy was ever furnished, Some important accounts were copied by witness’s clerk whilst there. This he believed to be a summary of the position of the estate, [Copy put in.] Witness had recently attended at Mr Wilson’s office for further inspection of the books, but had been referred to Mr Joy at, Mr Wilson declined to produce his books unless advised to do so by Mr Joynt. Witness wrote to Messrs Joynt and O’Neill on 27th June, informing them that Mr Wilson refused to allow of their seeing the books, papers, &c, in the estate of C. B. Turner deceased without their consent, and asking when they could see them. To this witness received no reply. Mr Garrick put in the following deeds : 18th July, 1865, Buchanan and Turner to Thos. Wilson, conveyance of town section 713 ; 4th August, 1865, Thos. Wilson to W. Wilson and Kcir, conveyance of same ; 28th January, 1870, Keir to W. Wilson, same ; 18th October, 1875, W. Wilson and another to W. Moir, conveyance of same ; 18th October, 1875, Wm. Moir to Wilson and Monk, mortgage of same. Mr Garrick was proceeding to ask the witness questions as regarded the two latter transactions, when Mr Joynt objected that there was no issue going to this, as they had been framed for lending money on leasehold security. Mr Garrick wanted to point out that this was a very serious charge. His Honor would see from the nature of the evidence that it was proposed to show that the defendant had lent money to himself on property belonging to himself, which was a very serious charge against a trustee; and looking to the nature of the bill, which was for specific relief, the Court would see that an issue might be framed. His Honor suggested that Mr Garrick should amend the declaration so as to include the averments that defendant had lent money on insufficient freehold security, and had been guilty of breach of trust in lending to himself.

Mr Joynt not objecting, the declaration was ordered to be amended.

Witness continued—The property referred to in the two last deeds was known to him. It would not be provident for a trustee to lend £9OO on it. He wonld be sorry to give £9OO for it. Witness had searched in the Land Registry Office against the sections mentioned in the accounts shown by Mr Wilson to witness as security for £2OO advanced by him to Dumergue and Place. There was no mortgage registered against the sections. The Court then adjourned until 10 a.m. this day, when Mrs Turner’s evidence will be taken. Wednesday, July 19, His Honor took his seat in Court at 10 a.m. The hearing of this case was resumed. Mr Garrick called the following evidence : Harriet Charlotte Turner deposed to being widow of Charles Brown Turner, deceased, and guardian of her infant children, the plaintiffs in the suit. The defendant Wm. Wilson acted as sole trustee in the estate, and witness had been in the habit of receiving her annuity and the amount of maintenance money for the children every quarter. Twelve months back her allowance was increased to £l4O. She had house-rent free, by her husband’s will, and since her house had been sold defendant paid rent for her. Witness used to go to defendant’s office and’sign the accounts, after the clerk had read them over. She did not examine the accounts for herself, were read to her from a book. The defendant expressed his surprise that she had not been left executrix, and he said he should consult her upon everything The defendant'told witness he was going to send up some grass seed and trees to the run, and she did not object. Defendant said he wanted to improve the farm for building purposes, but he never mentioned the amount he proposed to spend. He also told her that he was going to lend money on mortgage to the Agricultural Society. He did not 'confer with her from time to time as the securities in which he invested the trust funds. Defendant and witness did not get on well together. He told her that he would give her £l5O per year, but afterwards he would not, saying that he considered £IOO a year ample, and that she was better off than ever she had been. Witness told him that she thought the children and herself had the beat right to her husband’s money. He said that next year he would cut her down to £SO, and that some one had told him he should find her oat. She did not know what he meant. A few weeks after her husband’s death defendant told her that Mr Wynn Williams had proposed to give her 5s per week for each child. Witness said this was ridiculous, and it would not find them in boots. Witness made the remark she did not know what Mr Williams could have thought they had been brought up on. All the time Mr Wilson threatened to take the children away from witness if she married anyone that he did not approve of. There was a provision in the will which, in the event of her marrying, made the defendant the guardian of the children. He also threatened to take her house and furniture from her, and leave her with only her an-

nnlty. He told her that by giving her a few hours notice he could turn her out of the house and take the furniture. She was not aware of such a power being given by the will. Defendant kept impressing upon her the fact that she had no power in the estate at all. The trap left her by her husband becoming unsafe, she asked defendant to allow her to sell it and buy another. He acquiesced, and wanted her to have the one he was driving, but she refused. Afterwards witness spoke to him about the trap again, when he said that a trap was a luxury. Witness replied that if it were so she had been used to it.

His Honor said he could hardly see the purport of this examination. This was not a popular action for damages by appeal to the jury. If the defendant had used harsh conduct to the widow he would have to answer to it subsequently. Mr Garrick said he had been trying for some time to fix the witnesses attention on a certain date, which was relevant to the alleged breach of trust. Examination continued Subsequently Witness took defendant’s trap, and on looking over the books found defendant had charged £35 for it. [The witness here gave corroborative evidence as to going with Mr Oowlishaw to defendant’s office.] Witness was not aware of £IOOO being spent in grass seed on the run, or £SOO on trees. She was told that £IOO had been spend in grass seed and £IOO in trees. She had been unable to get any accounts from Mr Monk, the cotrustee of defendant.

Cross examined by Mr Joynt—Mr’Wilson obtained a copy of the will for the information of witness. Defendant told her that the estate could well afford to give her £l5O per year for the first year, and that as the children got older he would increase the allowance. The youngest child was nine months old when witness’ husband died. Witness believed that Mr Wilson told her he was going to send up some seeds and trees, about a year or eighteen months after her husband’s death. Defendant told her that he intended to plant the paddock, near Chaney’s corner, with a view of making it available for building purposes. Defendant did not say that he had arranged with the Government for a station there. Witness knew a good trap from a bad one. Mr Wilson kept the trap which she had sent to him for approval for his own use. Witness liked this one far better than the one of Mr Wilson’s, which she had. The former was newer and more fashionable looking than the latter. The price of the trap was charged by defendant to the estate. There was nothing to prevent witness looking at the book in defendant’s office, when the items were read by the clerk. This was done every twelve or fifteen months. Witness had been three times to defendant’s office lately, and only saw the books once. On that occasion she went with Mr Cowlishaw by appointment with Mr Wilson. At this time they only had one hour’s examination of the books, as Mr Chanters wanted to put them away before leaving the office to attend Court. Witness never heard any items read out as to grass seed and planting, except the £2OO referred to. The three children were going to school, at Mrs Clark’s private school. Frederick Thompson deposed that he had been for many years a valuator. He had inspected, and knew familiarly a property belonging to Mr Moir, situated in Gloucester street. He valued the property at £SOO, and £BO for the building for removal, as it was of no use to the property. That would be its full value in 1875. He would consider that the property referred to would not be worth more to advance upon mortgagee than two-thirds of the £SBO. No prudent man would lend more than this.

Cross-examined by Mr Joynt—Property in that neighborhood had not increased in value for ten years past. Anyone giving £llOO or £I2OO would, he believed, make a mistake.

Charles Henry deposed to having made a copy of accounts from accounts handed him by Mr Charters in company with Mr Cowlishaw. The accounts produced were those. William Wilson deposed—l am one of the defendants in this case. I produce deeds relating to loan of £156 to one Walker. [Deeds put in, lease Wilson to Walker ; mortgage Walker to Wilsou.l I am the freeholder of the land, The money so lent was expended in the erection of photographers shop and rooms. I made an advance from the money of the estate to a man named Barrett. I Deed put in Anderson to Barrett lease ; Barrett to Wilson mortgage.] The lessors Anderson and J, Struthers Williams are trustees of the freehold land for my wife. The sum advanced was £2OO. I was not aware that there securities were not registered ; I was under the impression they were. Mr Wynn Williams has been and still is the solicitor to the estate of C. B. Turner. One of the trustees of the wife’s settlement and my brother-in-law is a solicitor. The leases, &c, were prepared by him. I in. ye ted a portion of the trust fund in the purchase of shares in the Colonial and National Banks. I could not give from memory the exact date when I paid the first call on the National Bank, but I think it was in February, 1873 The amount then paid was £25. A total of £175 was invested by me in National Bank shares. A dividend of £6 has been paid since February, 1873. That is all 1 have received as dividends. The amount of £175 was paid in calls. I have invested a further sum in Colonial Bank shares, amounting in all to £l9O 12s 6d since June, 1874. There has been no dividend yet from the Colonial Bank. The shares of the National Bank are £!Qshares. There are fifty of them, and £3 10s has been called up. The Colonial Bank share are, I think, £5 shares, and I purchased 125 of them. The calls have been £1 }2a 6d per share. I have paid no calls since that resume of accounts was made up. I prpduce the books, in which 1 made the original entries of matters referring to the estate. The book refers to accounts in Turner’s estate alone. I have an entire personal knowledge of the accounts in that bpok. It is the ledger of the estate. There is no other book beyond the ordinary day book of the estate belonging to Turner’s estate. The ordinary day book contains the expenditure of the estate. There is a rental book also. I showed Mr Monk the ledger, the day book, and the letter book. This is the paly book which contains the posted up accounts connected with the estate. Monk has looked at my ordinary day book containing other accounts besides Turner’s estate. They laid there for his inspection, and he has been there for hours. The book now before the Court is, as far as I know, a correct recapitulation of entries in day book. 1 see an entry “ £26 16s 5d grass seed for station” ip the book. I supplied that grass seed for a portion of the leasehold

estate. The ledger does not show what grass it was. I turn to June 27th, 1872, and find an entry “grass and clover seed for run, £123 11s 3d I turn to July 27th and find “ grass and clover seed for run some £207 in August I find an entry, grass seed for run £304 9s 9d ; in January, 1873, I find an item, “ improvements to run £397 19s.’’ The item in the account given is “ grass seed and planting for shelter £397 195.” I have no reason to doubt the accuracy of that item. The book before me was posted up at short intervals. I cannot say why the entry is made in the account book as “ grass seed and planting for shelter,” and in the ledger as “run improvements,” My clerk enters the items in the day book and posts the ledger, I don’t know why the clerk altered the description of the item. I never made an entry in the book now before me. Ordinary grass and clover seeds we had a price fixed in the catalogue, and the clerk would not need any special instructions. I never gave the clerk instructions as to the verbiage to be used in the accounts. This was not a special transaction, and the clerk would not receive any special instructions, as he would know as well as I did what price to charge after becoming acquainted with [the amount sent out. 1 turn to July 6th, 1874, “station improvements, £175 25.” I cannot tell what improvements there are from memory. I have no doubt whatever that the item in the accounts furnished by my clerk, “oats and planting, £175 25,” is the same as that appearing in this book as “station improvements. I turn to November 27tb, 1875, and find an item “ station improvements, £68.” I have no doubt that this refers to planting. In the interest account I find an item under date January 15th, 1875, for “ trees, seeds, and tools, £150.” This wpuld be correct. The total for seeds amounts to £1054 4s 9d, and planting £393 2s. lam a seedsman and nurseryman. I believe the seeds, &c, came from my establishment. On December 4th, 1859, I find an entry “ John Campbell, cutting drain, £l7 175,” This refers to forty-nine chains of drain cut on the freehold land of the estate near the homestead ; I think at 8s 6J per drain. It was nothing whatever to do with the drain near my property. I carried on the farm with Mr Fantham from the death of Mr Turner, to 1870— nine months I think. On January 15th 1873, I find an item “ fencing £4B 12s 6d.” This was the fence separating the plantation from the farm. This is beyond the £393 for the planting. I see an item, under date July 29th, of a payment to Fantham for work done at Chaney’s corner of £46 2s. I produce voucher for this account. It relates to the plantation, I believe. On July Gth, 187 A, there is an item “Elliot planting trees, £l7 6s; this refers to the plantation. Another item on 18th March “Elliot work, £9 25,” refers also to the plantation. As does another item, under date 23rd November, 1872, planting trees on run £l3. The item J, Elliot, clearing pines, £2O, and £9 for labor refeis to the plantation, [The witness hero recognised several items tor labor, &c, as having been done for the plantation.] None of Ihe three items paid to Fantham have reference to the plantation. There was not time, I think, during the nine months I carried on the farm to realise a profit. I erected buildings to the value of £3OO on the farm after the testator’s death. I arranged for 10 per cent return on this account. I made no arrangement for increased rent for the plantation being on the run. I did so most distictly with Mr Alfred Cox, the first tenant, for increase or rent for the supply of grass seeds before he took the lease. I asked £250 per year for the run and freehold, but he said there was so very little grass on it that he did not care to give that rental, but would be prepared, if I would deliver to him grass seed at the rate of 7s per acre, or 141bs weight of seed, to give even £350, rather than take it, as it was for £250. This was an increase of £IOO a year for ten years, or equivalent to £IOOO, or 10 per cent on outlay. The lease was for five years, with option for further five, and he said the arrangement if carried out would be a strong inducement to him to take the increased term. It was agreed that I should deliver the seed from time to time as he made preparation of the land for its reception by burning off scrub and fern, and otherwise preparing the land for seed. Nothing of this was reduced into writing. Mr *Cox took a lease after this ; there was no lease or instructions for a lease at that time. Mr Cox covenented to pay £3BO a year from the commencement of lease though I was only to supply seed as he was ready to receive it. This was distinctly the arrangement between us. Mr Cox was bound to pay £350 a year by the lease, and I was not bound to supply the grass seed. Mr Wynn Williams prepared the lease, and I told him that I had to supply grass seed. Mr Williams congratulated me on having secured so good a tenant, and leasing the run on such good terms. Gillingham’s ‘evidence as to the sowing of the grass seeds is entirely incorrect. I never consulted with him as regards the sowing of the grass seed. I don’t remember speaking to Gillingham about having to supply grass seed. I rent them up to the run because Mr Cox enjoined me to carry out the conditions of the lease, as he had transferred to Gillingham for a consideration. There was nothing between Mr Cox and myself on the subject of the grass seeds except verbally. 1 Left sitting. ]