UNRECORDED GIFTS

Waikato Times, Volume 122, Issue 20501, 18 May 1938, Page 9

UNRECORDED GIFTS

DONOR DIES INTESTATE ACTION IN SUPREME COURT PUBLIC TRUSTEE AS DEFENDANT A claim in which Stephen Marinovich, restaurant proprietor, of Hamilton, sought delivery of chattels and £331, as gifts mortis causa, from the Public Trustee, was heard in the Supreme Court before the Chief Justice, Sir Michael Myers, yesterday. Claimant was represented by Mr A. L. Tompkins, and Mr F. A. de la Mare appeared for the Public Trustee. Mr Tompkins explained that the claim was made on the estate of the late Peter Babich, through the Public Trustee, for gifts made before Babich's death. When Babich died in October, 1937, he was intestate and his estate was valued at £BOOO. Although Babich had a brother and two sisters in Dalmatia and a brother in New York, Marinovich was the only relative in New Zealand. Babich was very ill for some time prior to his death, and he made gifts of money and jewels to Marinovich who had worked in deceased’s shop for ten years. The money and jewels were taken over by the Public Trustee. Deceased's Instructions Stephen Marinovich said that he was a cousin of the late Peter Babich and he came to New Zealand from Dalmatia at Babich’s expense. Since he came to the Dominion in 1927 lie worked continuously for the deceased. Both resided at the rear of Babich’s restaurant in Ward Street. During the last four years Marinovich did practically all the work, commencing duty at 8 a.rri. and finishing at 11 p.m. After two years witness repaid the amount advanced by Babich as expenses for the journey from Dalmatia- However, Babich said he did not want the money. Witness’ employer did not enjoy good health in the last three years, and in the last twelve months he was very ill. The consequence was that he took only a small part in the business. At first deceased refused to see a doctor, hut later continued treatment for a while. Later he was persuaded to see Dr. Fischmann, in Auckland. When told he would have to stay in Auckland for treatment, Babich refused to do so, and stayed in the shop. His condition became worse in the following week, and although witness wanted a doctor to be called in, Babich refused. On the Sunday evening prior to Babich’s death witness went into the sick man's room. Babich instructed him to take a bunch of keys from a drawer in the dressing-chest and told him to unlock one of the other drawers. On witness taking a box containing jewels from the drawer, Babich told him to keep them. “If anything happens to me they are yours,” said Babich. Claim for Gifts Rejected Witness stopped Babich from talking any more that night and was told to keep the keys. He took the jewels with him. Next morning witness told Tony Gera to summon Dr. H. Douglas immediately. On the doctor’s arrival Babich was ordered to hospital in an ambulance. He told witness to look after the shop and everything in it. Gera went in the ambulance and on his return said Babich wanted Marinovich to take the money out of his clothes and out of Babich’s room. Babich died on the Thursday morning. Removal of Valuables An officer from the Public Trust Office interviewed witness and later took the money and jewels away. The officer said the jewels had to be taken away for valuation and would later be returned. Witness made a claim for the jewellery and money but it was rejected and he was advised to bring an action. Evidence concerning Babich’s health just prior to his death was given by Dr. H. Douglas. The man was in a very serious condition but was still in possession of his mental faculties. Details of the conversation with Babich in the ambulance were given by Tony Gera, a Dalmatian farmer, of Puketaha. Babich was very fond of Marinovich, saying that he had worked hard for the business. While in the ambulance, Babich said he did not think he would return from the hospital. He wanted Marinovich to take the money for himself and he could please himself what he did with the business. Marinovich was also to have Babich’s insurance policy and share the receipts. He said he had already given Marinovich the keys to gain access to these articles. 'This closed the case for complainant. “We have no evidence to show that these people are not perfectly honest,” said Mr de la Mare, who did not call any evidence. The Public Trustee was merely exercising his duty on behalf of the beneficiaries abroad. “There could he no complaint against the action of the Public Trustee in defending this action, for he was simply doing his duty,” said His Honour. “1 have no hesitation in accepting the testimony of the plaintiff and of Gera. As to the money, I feel that, on tlie authorities cited, plaintiff is entitled to judgment in his favour. The oilier gift constitutes a valid donatio mortis causa.”