INNES’ ESTATE

Waikato Times, Volume 122, Issue 20499, 16 May 1938, Page 8

INNES’ ESTATE

CLAIM DISALLOWED TRUSTEE REBIGNING VOLUNTARILY SUPREME COURT CASE CONCLUDES “In view of the course this trial has taken, it is unnecessary to determine whether accounts should be decreed or whether defendant should be removed from his office as trustee,’’ said the Chief Justice, Sir Michael Myers, in the Supreme Court, Hamilton, to-day, giving judgment in the civil action in which Florence Innes, Sydney Charles Innes and others (Mr A. K. North) sought accounts from Francis Thomas Innes (Mr N. SJohnson) and also the removal of defendant as a trustee in the estate of C. L. Innes, deceased. At the opening of the hearing today, at the request of Mr North, and by consent, the statement of claim was amended to include in the prayer a request for a declaration that defendant was not entitled to claim against the estate £I2OO, being payments (and interest thereon) toward the maintenance of Mrs Innes, sen. Such declaration was made in His Honour’s judgment. It was also intimated by Mr Johnson during the hearing that defendant would resign his trusteeship in the estate.

Regarding defendant’s claim for the reimburseriient of the £I2OO mentioned. His Honour said in his judgment defendant, on whom lay the onus of proof, had failed to satisfy the Court that he was entitled to make the claim. Under the memorandum of settlement of 1912, referred to in the evidence, defendant was one of the persons who agreed to contribute toward the maintenance of Mrs Innes, sen. If there had been any agreement between defendant and his cotrustee, Florence Innes, regarding contribution to such maintenance by the estate His Honour held that the onus of proving such agreement had not been discharged by defendant. His Honour therefore held that the defendant was not entitled to claim the £I2OO. Defendant Cross-examined The hearing to-day resumed with the cross-examination of defendant, who said his father, who founded the firm, died 40 years ago. Defendant and the late C. L. Innes carried on the business, later forming a company. Witness said it was not correct that he had pressed Mrs Florence Innes to sell shares in the company to his son on the condition that an option to re-purchase would be given her. The sale had been agreed upon between the parties and there had been no agreement for re-purchase. Regarding moneys paid to defendant's mother the only record was in the company’s books as a debit against defendant's private account. When Sydney Charles Innes grew up, defendant encouraged him to take an interest in the estate- Sydney Innes, said defendant, certainly knew before 1936 of the maintenance payments being made. Defendant admitted that since 1932 he had resisted any distribution of shares in C. L. Innes and Company, Limited. One of the chief reasons was that of keeping the family interests together. Richard English, public accountant, of Hamilton, said he had been auditor to the company since its inception. There had always been an estate account with the company since C. L. Innes died, and the payments out covered allowances to the family and other disbursements. Witness had not had occasion to examine the reasons for the payments. The account appeared to be kept accurately. Witness told the directors that he required authority for the existence of the estate account. From witness’ knowledge of the circumstances of the estate, he was satisfied that the estate had more than doubled in value. Witness attended the annual meetings of the company and had seen Mrs Florence Innes and Sydney Charles Innes at such meetings on several occasions. The case had resolved itself into a consideration of whether the defendant’s claim for recoupment was a valid one, said Mr Johnson. Counsel intimated that, in any event, defendant undertook to resign from his trusteeship. Dealing with the legal aspect of his claim, said Mr Johnson, involved the consideration of whether there was any contractual obligation on the estate" to reimburse him for money paid.