transfer was £1,580, but that, says Mr. Thomas, was a "fiction." Mrs. Brown signed a consent to the transfer before Robert Alcorn, J.P., merchant, Ashburton; but the defendants did not call him as a witness, and there is very little evidence as to what the plaintiff understood of the transaction. On the same day that the transfer was signed by the trustees, a new mortgage was given to Mr. Stark for £2,500, thus consolidating the mortgages to Mr. Benent of £1,000 and to Messrs. Harper and Maude of £1,500.

The next transaction of importance is the sale by George Brown of his third interest in the 296 acres to Messrs. Thomas

and Sealey for £434, in trust for S. Brown. The partnership of George and Samuel Brown on the farm had been dissolved, and S. Brown was to be liable for all debts. George Brown's interest was valued at £434. This transaction was completed on the 30th of June, 1888. On the 24th of August, 1888, the 20 acres of land, Section 4921, was conveyed to S. Brown for a consideration of £200 by the trustees, but no money was received. The account due to the plaintiff would stand thus: One-half of £1,580, consideration of two-thirds section of 296 acres, £790; and one-third of £208 = £66 13s. 4d.: in all, £856 138. 4d. To this transfer of the Section 4921 the plaintiff gave her consent, making her mark in the presence of the solicitor, Mr. Crisp, on the 24th of August, 1888. On the same day the trustees transferred to Mr. S. Brown the onethird of the section containing 296 acres that they had got from Mr. George Brown, fixing the consideration at £300; and, strange to say, Mrs. Brown, the plaintiff, consents to that transaction, making her mark again in the presence of the solicitor. No evidence was given as to why she was a consenting party to this transaction, or that she knew anything about it. If she had been a shrewd business woman, she might well have asked why she was made to assent to this transaction; and her evidence is that she made her mark whenever she was asked and this transaction looks like it.

There was another transaction on the same day, a mortgage to the Union Bank of Australia (Limited) by S. Brown for £1,201, over Section 4706 (296 acres) and Section 4921

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(20 acres)-in all, the 316 acres. And on the same day there was a mortgage by S. Brown to the trustees, subject to the mortgage to Stark for £2,500 and to that to the Union Bank for £1,201, to secure £800, at 6 per cent. Mrs. Brown is not mentioned in this mortgage. She consented, and signed her consent in the presence of Mr. Crisp.

The next transaction of importance is the release of this mortgage, on the 3rd of April, 1894. Prior to its executionviz., on the 26th of February, 1894-Samuel Brown had given a mortgage of stock over 300 lambs, 400 ewes, and 1,200 hoggets, to secure £1,225 10s. 4d. Mr. Thomas says he knew at the time that the release was made of the mortgage that Mr. S. Brown's financial position was not good. "It had "been," he said, "improving for a year or two." Mr. Thomas had seen the plaintiff about a fortnight before, and she then told him she intended to make her will and leave all her property to Samuel.

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Mr. S. Brown's evidence is contradictory. He says, "In 'April, 1894, I was being pressed by the bank, and it was necessary to raise more money. Mother knew that. I always talked over matters with her. I remember going to 'Mr. Crisp the day "wish I should go.

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before the interview.

It was mother's

She wanted to make a will.

Nothing

"had led up to this.
spoken of releasing the mortgage some days before going to
"town.
She knew how I was situated with the bank, and
"wanted to release the mortgage. I did not wish her to do
"it. I talked over my business affairs generally. She knew
"all about the mortgage. She spoke of the will about a
fortnight, or may be a month, before I went to Crisp. She
"authorised me to go to Crisp. She went to Crisp's to
"release the mortgage. She discussed the release of the
"mortgage with me before."

We had not talked about it. She had

The evidence is far from clear. Reading it, one would conclude that the plaintiff had instructed her son to see Mr. Crisp about releasing the mortgage, and that they went to Mr. Crisp to get that done. The evidence of Mr. Crisp, and Mr. Sealey, and Mr. Thomas shows that this is not likely to

be true. I do not believe it. First, the plaintiff spoke about six months before to Mr. Thomas about making her will, and down to the last time that Mr. Thomas saw her it was her will she was going to make. Then, Mr. S. Brown goes to Mr. Crisp on the 2nd of April, and tells him his mother is coming in to make her will. She comes in, and calls with her son on Mr. Sealey, and it was still her will she was going to make. Mr. Sealey says, "She and Sam Brown came and asked me if “I would accompany them to Mr. Crisp's office, as she was "going to make a will. I went with them. Both said she "was going to make a will.” Mr. Crisp's evidence is, "In 'April, 1894, Sam Brown came in and said he wanted me to "make his mother's will. I said, 'All right.' He said they "would be in next day. Sam Brown, Mrs. Brown, and Mr.

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Sealey all came to my office together. This was, I believe, on the 4th of April, 1894. Mrs. Brown said she was "going to make her will," &c. Can it be believed for one moment that she had agreed to release the mortgage, and had gone into Ashburton for that purpose? It is plain that she went to make her will, that her son Sam knew it, and that Mr. Sealey knew she had come in for that purpose. And Mr. Crisp knew it also. According to the evidence, it is also, I think, clear that the first suggestion of releasing the mortgage came from Mr. Crisp. He says, "In the course of conver**sation she understood that the will would not come into effect until her death. She said, 'I don't want that: I

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want Sam to have it now.'" Mr. Sealey says, “I think "I said, Mr. Crisp, we have come round. Mrs. Brown "intends to make a will.' I don't think Sam Brown

spoke a word. Crisp asked her what she wanted to do. "She wanted to make a will in favour of her son Sam.

"She wanted to leave everything to Sam. Crisp wanted "instructions, and she said, Everything to Sam.' I think "it was Crisp said that the will would not take effect till she died," &c.

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The plaintiff was seventy-six years of age, but it is said she was a shrewd business woman, and yet she seems, according to this evidence, to have been ignorant of the meaning or effect of

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a will.
If she was so ignorant of the effect of a will, can she
be said to have really appreciated what she was doing? We
have this result: An elderly and illiterate woman, living with
her son, goes into Ashburton to make her will, and this in
pursuance of a set purpose she has had for six months. She
has not been long in Mr. Crisp's office before she signs a letter
requesting her trustees to release the mortgage for £800, the
only property she had, so that her son might obtain it and
thus satisfy the bank that was pressing him. Further, at this
first interview, Mr. Sealey, one of the trustees, signed the dis-
charge of the mortgage. Now, Mr. Crisp and Mr. Sealey both
knew she had come in to make her will. And it was not from
her the suggestion came to consent to the release of the mort-
gage. They did not question her apart from her son, whose
interest it was that she should consent to the release. They
knew it was her only property, and that Mr. S. Brown was not
in a strong financial position. She was living with her son,
and she had no independent advice.
I think little of the pro-

tests said to have been made by the trustees in the presence of
her son. If they had wished to warn her or even to consult
with her they should have met her apart from her son. Mr.
Crisp also, as a solicitor, should not, knowing her age, and that
she was living with her son, and that she had come to his office
to make a will, have allowed her to almost at once consent to
the giving-up of all her property. If he was acting for her he
did not perform his duty, and if he was acting only for Mr.
S. Brown his conduct is equally open to censure, for it appears
that it was from him the suggestion came that she should re-
lease the mortgage and not make a will. When he received
the instructions, why did he raise any question about making
an immediate gift to Mr. S. Brown? The transaction looks
very suspicious. As to Mr. Thomas, he apparently came in
when his co-trustee had signed the discharge of the mortgage:
but he also, save in protesting in Mr. S. Brown's presence,
took no steps to ascertain from his cestui que trust, apart from
her son, what her intentions were. Nor did he ask for any
independent advice, or even ask for a delay of a few hours.
He goes to Mr. Crisp's office, and in a short time he has

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signed the discharge of the mortgage that left his cestui que trust penniless.

The question is, Can either of these transactions stand?that is, the transfer of the property to Mr. S. Brown of her third interest of the estate, or the release of the mortgage. Ordinarily a gift from a parent to a child stands unless there is a proof that there has been undue influence or fraud: Garrett v. Wilkinson(1); though it was said in that case that probably a distinction might be made between mother and son: and Henry v. Armstrong (2) shows that the remark in Cooke v. Lamotte (3) to the effect that every holder of a voluntary deed of gift was bound to prove that the transaction was righteous is not law. Here, however, as is pointed out in Bigelow on Fraud(4),

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The

principles applicable to gifts by children to their parents apply where the natural position of the parties has become reversed, and the child has become the guardian of his aged "or infirm parent." That was the position in this case, at all events, when the mortgage was released. And I do not see

how it can be said that this gift to Mr. S. Brown can stand. The first transaction was in the nature of a sale, and there is no clear statement of what occurred. It is not shown who acted as solicitor, the witness to the consent by the plaintiff is not called-everything is left shrouded in mystery by both Mr. S. Brown and the trustees.

Why?

At the time of this sale the plaintiff was sixty-nine years of age. And before 1894 she was about two years out of the direct influence of her son. Further, it may have been that if a forced sale had taken place of the farm she might not have realised more than £800. There is no proper evidence as to value or as to accounts. The transaction in 1887 was not a voluntary gift. Taking these facts into consideration, it may be advisable and proper not to reopen that transaction, though I have some doubt if it should not be set aside. Regarding the release-of-the-mortgage transaction, I have no doubt that it must be set aside, and that the defendant S. Brown must either restore the mortgage as it stood on the 3rd of April,

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