ROMANTIC WILL CASE.

Taranaki Daily News, Volume LV, Issue 250, 12 March 1913, Page 7

ROMANTIC WILL CASE.

, ACTION" IX THE SUPREME COURT. I A FATHER'S GENEROSITY. 1 A will case presenting interesting and unusual features was' brought on in the Supreme Court yesterday, in the shape of an action by William Padden Snell, draper's assistant, of Gisborne, against John Baxter Connett and Mary Ann Elizabeth McKee, executors anil trustees of the will of William Padden Snell, deceased, for the sum of £432 (is 2d, alleged to be a proportion of plaintiff's share under the will of the deceased in trust for the plaintill'. Mr. J. 11. Quilliam appeared for the plaintiff while Mr. D. Hutchen defended. The story as unfolded by Mr. Quilliam in opening the case read like a rO' mance. The late Mr. W. P. Snell had, said counsel, for many years prior to his death in 1011 carried on a somewhat extensive drapery and clothing business in Waitara. He had eight children, six daughters and two sons, the plaintill being the . elder. During his life-time the late Mr. Snell conferred great benefits upon his children in the shape of gifts of money and kind. In 1800 the plaintiff—then a boy of 15 years—left school and went to work in his father's shop. He received no wages, but was kept. and. in addition, received pocket money. Pour years passed by, and then the father sent his son (the plaintiff) to work upon a gold-mining claim in the Auckland district. The claim

belonged to his father. and the plaintiff •eeeived no wages. being simply supplied : .vitli money and necessaries as required, i'oung Snell spent about two years .vorking the claim and then returned to lis father's shop. Then for the first Jine he commenced to receive regular .vagos> being, paid -.-CI a week, besides iving at home. -Tn ■ the year ISDO the ' ilaintiff, at his father's instance, went ' jver to Klondvke. with a view to acpiiring ex])erienee in the business of ;o!d-miniiig. At the end of three years die plaintiff left Alaska's cold and in- i lospitable shores and returned to Wai;ara. re-entering bis father's shop on the ild terms. This relation between fa- ' ;.her and son continued till 1903. when the.late Mr. Snell took a trip abroad. • !Ie left the plaintiff in charge of the business, giving him to understand that iipon his (the, father's) return he was to receive half the profits that accrued : luring his- absence. Mr. Snell remain- 1 ■d abroad about twelve months, his son Lhus Incoming entitled to about £4OO of the profits. Just before leaving for England Snell left a married daughter to take charge of the household arrangements, the plaintiff paying one-halt' of the expenses. When making these arrangements with his daughter, Snell told her that the plaintiff was to receive half of the profits of the business. Th:\se. however, were never paid to the soil, and Snell. oil his return from England. suggested that instead of receiving j ii halt share 6t' the profits he (the father) should acquire a business for him that was otVwing in the town of Kaponga. The piaintill agreed to the proposal, and was set up in business, Whilst inspecting the shop the late Mr. I Snell said Unit if his son was short of j any lines lie would make up his stock I from a consignment of goods which he \tlic father) had brought from England. The plaintiff received the goods and a sum of money, his father mentioning to the daughter previously referred to that these were a gift in lieu of the half share of profits. The shop anil stock at Kapouga were bought on pro-mi-.son- notes, amounting to about £4OO or t'oOO. signed bv the plaintiff anil endorsed bv hi- father, who said that if he had any difficulty in meeting them lie himself'would pay thevn. The sum of CiOl lis Sd was advanced to the plaintiff, who found the balance himself out of the business. On several occasions the late Mr. Snell told his daughter (Mrs'. Kempion) that lie had given the plaintiff the balance of the money required to meet those pavments. once remarking. "I have given Will so much, and 1 have done the best [ can for him. What be has I have given him." Although the decea-ed gave the money and goods as gifts he had made it a practice to enter the amounts in the ledger, not as debits, but merely as records. As a matter of fact, he had even entered no his wedding present as ■■cash lent." The entry was made some years after the wedding. In a li-U ot book debts prepared some little time ago bv the deceased none of the amounts appeared, nor had any account ever been sent to the plaintiff. ' In lilfl'.i the plaintiff gave up bis business at Kapouga. and.'"as showing that the deceased did not regard the claim now being made as a debt, counsel pointed out that t.he son had actually sold his father part of his stock for the sum of £l4O. Owing to the plaintiff's unsuccessful business venture the late Mr. Snell was called upon to pay his son's overdraft of £2OO at Kapouga. which lie had guaranteed. For this the plaintiff gave him a promissory note for £'2o». After the disposal of his business nt Kapouga the plaintiff took a shop in Daunevirke and subsequently went to Cisborne, where he obtained employment as a drapers assistant. On November '27. 1011. the iallier died. A short time prior to his death V: was visited bv the plaintiff. The deceased was afflicted with a painful maladv. which made it difficult for him to articulate. In conversation, therefore. he had to express himself in writing.'and before the plaintiff returned to Cisborne (he former handed him a note. In this the father expressed himself nhid that his son had secured a good position, and then went on in the followin" strain:- "Let bygones tie bygones'. and Twill destrov this bill (promissory note) for £'200." The father then went into the next room, tore the liill up. and threw it, on the tire, in the oresence of the rest of the members of 11,,. fiunilv. The following Monday the father made his will, in which no reference was made to his son's alleged in<lebtcd"ess. Counsel contended licit Ihe son's obligations to his fa 1 her had been forgiven in the lifetime of his parent. Apart from this defence was the fact that, with the exception of £OO. sill the so-called debts bad become statute-barred owing to lapse of time. The defendants had originally claimed

/that in addition to the sum now formI ing the basis of the disjin(,<■ the destroyi ed bill for ,C2UO must also be treated as a debt, but they had since waived their objection to it being treated as a All the. bencr,claries, with the exception of two, raised no objection to the whole of the money given to tie plaintiff being treated as a gift. I'onsi(jiieiitly the matter had to be adjudicated upon. Several witnesses were called in support of the plaintiffs story. Two witnesses gave evidence oil behalf of the defence. iMrs. Mary A. J3. ilcKee, residing at Omata, the eldest daughter of the late Mr. Sue! 1, said that the latter had always looked upon the money given to the plaintitl" as a gift. He had often .spoken about it. On one occasion he remarked: "I suppose be (the plaintitl') has had all he can get now, and I suppose he does not trouble to write to me now." To Mr. Qnilliant: When her father died she knew that be had forgiven her brother the debt comprised in the promissory notes for .CillO. Mrs. .Margaret Florence Samson, who assisted her father in his business until five years ago, gave corroborative evidence. She understand from her father that the plaintitl' and bis bro!':er received .CloO each on setting out for the Klondykc. On behalf of the defence, Mr. Hut-,-nen explained that it was only when the executors questioned tiie bona lides of the gifts that the plaintiff came forward with any information concerning them. When the plaintiff produced the memorandum regarding the bill lor£2oo. the defendants were satisfied, and made no further claim. In respect to the amount of £4OO odd the plaintiff' had omitted to furnish details, and the whole of the evidence adduced came as a surprise to the executors. Proceeding, counsel contended that there was no proof of the forgiveness of the various debts. The memorandum given to the plaintiff by the deceased just before, his death was ambiguously worded, and eouhl not be construed into mean ing a discharge from his liabilities. Mr. Quilliam submitted that the deceased had done everything possible to wipe out the debts. Summing up, his Honor commented that the defendants were justified, under the circumstances, in refusing to pay the legacy without the authority of the Court. Reviewing the evidence, lie said it was quite apparent that the late Mr. Snell had taken no acknowledgment of the debt from his son. during all the years it had been current. Tt would have been very important had the moneys advanced to the plaintiff been entered in deceased's ledger by means of the double-entry svstem, but the evidence showed that it had simply been jotted down in an ordinary ledger and not carried forward. In that ease it would have to be treated as a mere memorandum or formal record. The plaintiff was not in affluent circumstances, and his father, just before Lis death, had apparently wished to straighten out his son's affairs. His Honor accordingly granted a declaratory judgmeut in favor of the plaintiff, and order- I ed that the costs of the action should | come out of the estate.