ON APPEAL FROM THE SUPREME COURT OF Evidence-Admissibility- - Declaration against interest- Claim against estate of
deceased person-Onus of proof.
In an action against an executor to recover money alleged to have been MELBOURNE,
lent to the testator in various sums from time to time, evidence was given on March 16, 17,
behalf of the plaintiff that prior to his death the testator and she had an interview at which they had a settlement of accounts whereupon the testator paid her £500 and acknowledged that he still owed her £550. Evidence was tendered on behalf of the executor of a conversation immediately before the settlement of accounts, in the course of which the testator had said that he was going to settle up with the plaintiff and that he owed her £500. This evidence was rejected.
Quaere, whether the statement of the testator was a declaration against interest so as to be admissible.
But, held, that the weight of the evidence, if admitted, was not sufficient to vitiate a finding in favour of the plaintiff.
The onus of proof in an action against an executor to recover money alleged to have been lent to his testator discussed.
Decision of the Supreme Court of Victoria (Hood. J.) affirmed.
APPEAL from the Supreme Court of Victoria.
An action was brought in the Supreme Court by Margaret Jane Bull against Robert Plunkett, executor of Joseph Plunkett,
deceased, to recover the sum of £554 Os. 6d. as being money lent to the testator.
The action was heard by Hood J., who gave judgment for the plaintiff for £526 Os. 6d.
From that decision the defendant now appealed to the High Court.
The material facts are stated in the judgments hereunder. Mitchell K.C. and J. Macfarlan, for the appellant. McArthur K.C., Starke and Morley, for the respondent, were not called upon.
During argument reference was made to R. v. Overseers of Birmingham 1; Higham v. Ridgway 2; Hudson v. Owners of the Burge Swiftsure 3; Williams v. Geaves 4; R. V. Inhabitants of Worth 5; Newbould v. Smith 6; Taylor V. Witham 7; Bewley v. Atkinson 8; In re Perton; Pearson V. Attorney-General (9).
GRIFFITH C.J. This is an action brought by the respondent against the appellant as executor of her deceased brother. The case made at the trial, and which was fairly open upon the pleadings, was this :-The plaintiff, who was a widow with seven children, having come into possession of a sum of money, and being desirous to make use of it for the benefit of her family, paid to her brother, the deceased, various sums from time to time, amounting altogether to £1,054, to be employed or invested for the benefit of herself and her children. The payments began in 1898, and extended over rather more than four years. In 1911 she and her brother came together, when he admitted that he owed her altogether on account…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Plunkett v Bull [1915] HCA 14
Case
[1915] HCA 14
Decision Date
CaseChat Overview and Summary
This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The respondent, Margaret Jane Bull, had brought an action against the appellant, Robert Plunkett, as executor of the estate of Joseph Plunkett, deceased, seeking to recover a sum of money alleged to have been lent to the testator. The Supreme Court had found in favour of the plaintiff, awarding her £526 Os. 6d.
The legal issues before the High Court included whether certain oral evidence tendered by the executor, purporting to be a declaration against interest made by the deceased testator, had been wrongly rejected by the trial judge. The court was also required to consider the weight to be given to such evidence if it had been admitted, and whether the trial judge had correctly applied the principles regarding the onus of proof in claims against a deceased person's estate.
The High Court affirmed the decision of the Supreme Court. While acknowledging that there may have been a misunderstanding regarding the admissibility of the rejected oral statement as a declaration against interest, the court held that even if admitted, its weight would have been minimal and insufficient to alter the trial judge's findings. The judges were satisfied that the trial judge had properly assessed the credibility of the plaintiff and her witnesses, and that the evidence presented adequately established the original indebtedness and the part payment, thereby overcoming potential issues with the Statute of Limitations. The court also addressed the nature of the arrangement, concluding that the plaintiff had effectively allowed the deceased to act as her agent in investing the funds for her and her children's benefit.