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The Pamphlet Collection of Sir Robert Stout: Volume 74

Mr. James Mills, Dunedin, 22nd August, 1895

Mr. James Mills,

Dunedin,

Dear Sir,—

I have to acknowledge the receipt of your letter of in answer to mine of the 12th inst., asking if you would not impensate me at least in some measure and without further delay for _ heavy losses my estate has sustained through your mistakes, many [unclear: of] which must have been known to yourself three or four years ago [unclear: When] you first instituted this unnecessary suit, and which you now will decline in any degree to make amends for. Your continued [unclear: veusal] to these reasonable and just requests leaves me at liberty the [unclear: more] freely now to express myself in passing in review your acts of [unclear: adminstration] which have resulted in inflicting such serious losses [unclear: upon] me and my children, defeating my father's wishes and intentions expressed to yourself and in his will, and in despoiling and [unclear: poverishing] my estate. Whatever I may have suffered at your hands bitterly as I may feel about it, I very earnestly hope I shall not make single complaint, mis-construe any of your actions, or make [unclear: any] statements that are not strictly accurate. To do this would only [unclear: recoid] upon myself and defeat the objects I may have in view. I need [unclear: bardly] again repeat that others are entitled to know why I am unable discharge my obligations to them. I venture to think that you, as [unclear: well] ourselves, would prefer that in questions in dispute between [unclear: you] and me an effort should be made to settle them upon a basis that would be amicable and just, without appealing to any other tribunals. I quite sure that the all-absorbing duties of your every-day life [unclear: engrossin] so great a measure your time and thoughts that you are [unclear: almost] instinctively impelled to put off dealing with these grave matters in dispute, and possibly almost to lose sight of their serious [unclear: aspect] I cannot, however, permit that to coerce me to remain quiet and passive any longer under these wrongs, and therefore, I enumerate and place on record some of the points in the category of injuries [unclear: in,] because, according to the judgment of the Court, I have com- page 12 mitted the one single mistake of placing a blind, implicit, [unclear: unswervin] [unclear: confidonce,] not only in your ability and integrity, but in your [unclear: having] for myself personally, what you always professed, a kindly feeling [unclear: c] regard unbroken by a ripple of discord or unpleasantness through a long series of over 30 years, since, in fact, we were playmates as [unclear: almost] children together; that in your hands, our paid Trustee, I felt this greatest confidence that no neglect, no wanton neglect, would! [unclear: the] possible, but that you would discharge these sacred duties with [unclear: the] utmost fidelity and care.

Now for these facts which will, I assert, justify the [unclear: sever] strictures and condemnation, for though the Court refuses to [unclear: recti] many of these breaches of Trust, because I did not find them [unclear: on] before, (how could I with the information you supplied me?) yet I [unclear: s] assured that others, guided by instincts of probity and honour, [unclear: wi] certainly extend to me sympathy and commiseration. I mean [unclear: too] whose goodwill and respect we both ought to value and esteem.

Your appointment as Managing Trustee immediately after [unclear: un] father's death, at a very high remuneration to which I referred in [unclear: my] letter of 8th February last, (still unanswered) was, as I stated, [unclear: mu] objected to. Since I wrote then, a letter (19th Oct. 1890) has [unclear: tun] up, expressing a very strong opinion from____, who complained very strongly indeed that we in advocating and eventually [unclear: i] carrying out our proposal to raise your salary from one hundred; seven hundred per annum, had apparently constituted [unclear: oursehs] "Trustees to yourseif, ignoring the interest of the real beneficiaries and though we carried our point, I hardly think now that a [unclear: grate] sense of the kindness it then gave us pleasure to show you, has [unclear: i] looking back on the past, ever given you a passing thought; but this what you know, or ought to know, so many others and with [unclear: more] bitterness complain of, but I pass on.

Forgiven Debts.—The will says:—"I forgive" (here follows the names of the beneficiaries) "whatever sums they may respectived owe me at my death." The debts and credits stood in their account thus :—
  • (W.) Cr. £250 for wool Dr. £92 18s 4d advance on wool.
  • (F.) Cr. £368 for wool Dr. £168 18 5d advance on wool,
  • (J.) Cr. £255 for wool Dr. £133 3s 0d advance on wool.
  • (M.) Dr. £1164. Cr. £750 for sheep.

In the latter two cases the accounts were closed, wiped out, and [unclear: n] balance struck. In the former two the debits were written off and [unclear: the] wool moneys banded to W. and P., and our Residue funds [unclear: deb] with the £618. The mistake is a strange one to make, but the [unclear: poi] is to us our loss of this amount. If the two latter accounts were [unclear: rig] then the others were wrong which was certainly the case.

Interest account so entered and designated £640 12s 2d. That it should have formed part of Residuary Estate admits of [unclear: ns] doubt. The Judge remarking, "It is admitted that all the cestui que trusts under the will have received what was due to them," and do not see upon what principle they have not been credited to Residue," page 13 nor does anyone, and thus a second sum of about £600 has by you taken from us for 25 years, but how this second sum became exhausted appears most strange. But now for a third £600. Bell [unclear: Award,](part of the). It was agreed in writing in response to your proposal (except that it was to be in equal parts) that four should [unclear: contribute] to pay this Award etc. of £2G00. (b) In May, 1871, you obtained from each £500, equal to £2000, stating that later you would [unclear: get] the balance due from them with costs, expenses, and fees. My two sister and I and our families went to England about that time. Just to our going Mr. Isaac spoke to you several times about this [unclear: balance] of £600, then standing to the debit of our Residue on this account. You said that of course would have to be put right, but you would not require anything from us, as in settling up some Harbour Steam Co.'s accounts you would have enough coming to us to pay our and thus it was left. The only amount that was coming to us [unclear: and] [unclear: our] share of the proceeds of the steamers "Enterprise" and "Result" In 1886 we first learned that this £500 was still unpaid, [unclear: ou] had neglected to collect it and it remained to the debit of our [unclear: sidue] funds, upon which we have now lost interest for 24 years, also have never received to this day, nor as far as can be found in the [unclear: books] has any one of the beneficiaries received, as such, one penny as [unclear: noceeds] of these two boats. I therefore here in a formal manner ask you to clear up this matter, as I did last February, and me my share with 24 years' interest, or the sum which you said [unclear: ne] coming to me from the Harbour Company. The Court would not [unclear: allow] my counsel to argue this question, but said I cannot get the 24 par's interest on the £600, because I did not find out that you had [unclear: hiled] to carry out our agreement. This may be, and probably is, good [unclear: law,] but what a parody on equity and justice it appears to be.

The Mill Paddock.—I refer to this again for the purpose of putting in a copy of a plan (c) from the old will, access to which was [unclear: fused] to Mr. Isaac by the Trustees' (your) solicitors, but very kindly [unclear: ned] for him by Sir Robert Stout in Wellington, though too late [unclear: the] trial. This is the 45 acres upon which was built the large mill [unclear: whith] its costly machines, fully gone into in my letter of 8th February [unclear: has] year, and upon which, in your presence, Mr. Cook, my father's [unclear: tor], and under his instructions, wrote my name across, which [unclear: and] you gave to Elsie, and in the face, too, of my brother's protest at [unclear: the] first meeting of Trustees, every acre of which is in excess of her [unclear: tely] defined bequests; also I put with it a copy of another plan a) which you attached to his last will, and deposited it in the legistrar's office specifically again defining the bequest to Elsie of [unclear: 77] acres, and as specifically excluding this 45 acres. A few days [unclear: flerwards] you wrote about these very Hawksbury lands, and under [unclear: w] directions the instructions for Mr. Cook for preparing the will [unclear: thus] "As per plans on the old will," on five of which my name [unclear: was] [unclear: will] written across, four you gave me and gave Elsie the fifth, and thus in this 45 acres I say you deprived me of another £5000. You know here [unclear: e] is not one word of exaggeration in these statements, I assert they page 14 are quite beyond dispute.

Island Farm.—Since my letter of February last year my husband met a gentleman who casually mentioned something about this property. Mr. Isaac read to him that part of my letter referring to [unclear: the] attempt made by our old friend, the Hon. Capt. Fraser, to purchase his property of 535 acres, and your callous and determined indifference making all attempts at negotiation quite useless. He then said: "This statements in that letter are perfectly true in every particular. Mr Mills would not sell, but had we purchased it I don't think we she should have made much by it." I had thought he was not in the Colony [unclear: as] that time. This entirely sustains what I said in my letter referred but as further corroborative proof, if it be needed, let me ask you [unclear: the] refer to three letters Mr. Isaac wrote you from England, dated June, July, and August, 1878, (if lost I will supply you with copies) [unclear: drawing] your attention to the sales of farms then quite lately at from £20 [unclear: the] £80 per acre, several in close vicinity to mine, of which you well know there are few as good, and hardly any better about there, and [unclear: strongly] urging you to sell at once. I had forgotten to say that three [unclear: meet] stated to Mr. Isaac upon our return from England that they would [unclear: f] they could, have bought this farm at from £20 to £80 per acre, [unclear: but] had understood that you would not sell it. " You were quite [unclear: satisfied] with Banatyne as a tenant, the lease was good enough for you." [unclear: yes] it was all to no purpose, the farm was at that time let at £370 per annum. 535 acres at £25 would have realised £13,375, which at [unclear: t] percent., the rate then ruling (1878), would have brought me in [unclear: £100] per annum. The Land Tax paid this year is upon a value of something under £3000. I say therefore that through your neglect, your careless and disastrous administration of this part of my estate, I have fully £10,000, and all the increased income which would have [unclear: accrea] had you justly end righteously performed your duty. I brought al this before you in a studiously courteous letter last February, yet I [unclear: gy] no reply, no whisper of regret, or attempt in the most trivial way [unclear: r] make amends; but it is the same from start to finish, touch where will on the vibratory chords of the past, they only echo back notes [unclear: the] jar, notes of callous wrong and cruel neglect. I am assured [unclear: upon] very high legal authority, that Courts of Law in England have [unclear: lu] down the doctrine, which many decisions fully support, that where Trustee refuses or neglects to sell property that would undoubtedly to the value of Estate of his beneficiary he shall be held chargeable his neglect. Maxim A asserts this.

The Release.—To free you from liability for all breaches trust; let me here give my evidence copied from the Judge's [unclear: name] "No draft of this deed was submitted to me, it was signed at [unclear: mill] office. Deed was never read over to me; I was told it was an [unclear: asser] to Mr Morris' going out and Mr Simpson being appointed a [unclear: Truss] I understood from Mr Mills shortly after my father's death, that was Residue to the amount of £4000. I have never received [unclear: n] income from Residue, I never got any account of Residue. I [unclear: his] never at any time received any account showing how this fund [unclear: because] page 15 exhausted." I learned afterwards that this deed contained a clause of which I had not the slightest conception, releasing you from all breaches of trust, &c., which you knew I was at that time feeling considerable anxiety about, and when you put in your defence to my counterclaims in this suit of yours this Deed of Release which I was cheated into signing was put in and relied on as forming part of your defence. I say, therefore, that in thus deceiving me you violated and set at defiance all the unwritten laws of probity and hononr. The Judge disallowed the defence, voild tout. Someone, I hear, remarked at the time that had this case come before the Judge Williams in England, who lately had in review the acts of the N.Z.L. & M.A. Co. Directors, more would have been said.

Mr Isaac's acts being attributed to me, a good deal of stress was kid by your counsel and in the judgment was entirely upheld that Mr bate ought to have known how the accounts stood, ought to have seen that money was invested, &c, &c, and because he did not I must therefore suffer vicariously for his so-called neglect, not only the loss of all interest upon these misapplied and now restored Residue Funds for the past 25 years, but for the remaining years I may live. If this is good law then all I can say is, that it is barbarous cruelty; but I am advised that I can here take a very bold stand and say that it is in direct conflict to the best English authorities. These are given me as Jarman, Sir J. V. Williams V.C. Stuart, and L. C. Westbury—I write clearly under directions—the latter two in different courts upon the case of Wilkins v. Hogg (e) the clause of exoneration to Trustees is precisely similar to than in my father's will. There it will be seen that Mr. Isaac is completely freed from all liability (except for personal acts of his own) of his co-Trustee, and that "the court has no right to invest such Trustee with a liability beyond that which the Testator had thought it right to impose on them." Yet because Mr. Isaac did not perform certain duties that my father had absolved him from performing I am to be punished with merciless severity.

Mr. McLean in his evidence said (I copy from the Judge's notes): "Mills kept all the books. I don't think the question of debiting any particular beneficiary with any particular sum was ever discussed." This Mr. Isaac and my brother fully corroborated in their evidence. Every mistake in the books, and they are almost all book-keeping mistakes, are in your handwriting and quite unknown to your co-Trustees—I speak very confidently. In the Trustees' Minute Book for the first year, 1869, 32 accounts were by them passed for payment, and in no single case is there the slightest direction asked for or given to yourself, and though during that period accounts to the number of about 150 were paid by you, none beyond the 32 were submitted to your co-Trustees, some of whom assert that they never even saw the books.

Guarantee for the Hillside Advance.—Here a very similar deception was practised upon myself and my children as in the Release and alike discreditable. You know what I refer to; for the present I will not further notice it. It was a heartless piece of business.

page 16

Residue Accounts Rendered.—The first is dated the day of [unclear: a] father's death, 16th March, 1869—it is in your handwriting (f). [unclear: the] account which Mr. Isaac has shown you is in a very dilapidated most unfortunately the credit entries all gone, apparently pocket away, against the figures remaining are added in red ink the [unclear: com] amounts from your books, how such mistakes occurred it seems [unclear: impo] sible to divine. The second account you withdrew yourself as is [unclear: ist] curate. The third, substituting the previous one (g), contains, believe, only one correct entry, the credit rents are correct in [unclear: amount] but should have been given to the different beneficiaries. About [unclear: it] fourth prepared by the Order of the Court for filing in your suit, [unclear: au] which took you and Mr. Whitson nine months to prepare, or [unclear: men] properly perhaps produce, to dissect and cull from your books—but must ask Mr. Isaac to explain about it:—

[" These accounts, prepared by Mr. Whitson and yourself, [unclear: wa] by your solicitors sent to ours and given to me. They are, as you very voluminous, filling 12 large sheets of paper. Upon [unclear: examin] them I found that they were inaccurate and defective, and so information Mr. Whitson (you were then attending the Session at Wellington) [unclear: w] very stoutly disputed my statement and asked for proof, at the [unclear: san] time laying the cash book, journal, and ledger before me to [unclear: susts] their accuracy. To prove my position I asked Mr. Whitson for the [unclear: of] rough memo, cash book, kept in pencil by yourself. This he [unclear: fir] maintained he had never seen, and he believed had no existence, [unclear: thus] was expressed in not very complimentary terms to myself, offering, [unclear: sal] indeed accompanying me to search in the strong room and [unclear: Summti] safe, wherein the Jones' trust books were always kept. I then [unclear: gr] him, by letter dated 17th September 1892, a list of these [unclear: om] accounts, which had accidentally come into my hands four years [unclear: before] and they were 10 in number amounting to £4745 4s 3d. You [unclear: return] from Wellington after a fortnight, when this fourth statement withdrawn and another, a fifth, submitted. This is the one now before the Court in your suit, of which it is adjudged that the amounts, 31 [unclear: i] number, enumerated in (i) are wrongly charged. The old pencil [unclear: men] cash book was, Mr. Whitson then informed me, 'discovered in [unclear: M] Mills' private safe.'—Wm. Isaac.]

These five are all the Residuary accounts I have received since [unclear: n] father died, and the two last, within the last three years, which [unclear: a] utterly inaccurate and misleading, though the judgment is that "if [unclear: m] Isaac wanted further information there is no reason to suppose it [unclear: won] have been withheld—there is nothing in the nature of concealment [unclear: r] the part of Trustees so as to make it inequitable on their parts [unclear: the] they should take advantage of the Statute," and therefore, because trusted to your ability, high sense of responsibility, and the account of the accounts you rendered me, I am to be punished with the loss [unclear: f] ever (that is the judgment) with the half of the Residue Fund so orders to be restored, and all interest that should for 25 years have [unclear: accoued] me had you done your duty, and, because Mr. Isaac, who was specically exonerated from attendance to these duties and from liability [unclear: the] page 17 pot doing so, and did refrain from them, and because my father was competent and did define his duties which, as Lord Chancellor Westbury said, "No Court has any right to impose upon them," I am, I say, to be punished with this cruel and perfectly unmerited severity and this is supposed to be good English law in this 19th. century! One word and I refrain from pursuing this heart-sickening subject. Every one of these mistakes was personal to yourself, made by you unknown, except in the Bell Award, to a single Trustee, or authorised by them, and was unknown to the Residuary Legatees.

Harbour Steam Company.—The diagram herewith (j) is reproduced from memory, from one of the two or three that were one day passed about, in playful humour, among the members of the Bar, and then, I am told, torn up; it can therefore be only approximately correct. The £20,000 lacks the proof I should like to supply, though we beard it years ago from those who certainly ought, and I believe did, know. The figures that follow are taken from your books and are beyond question entirely accurate; they pretty well tell their own tale, and a very sad one it is. We all, i.e., we three girls, went with our families to England in 1871—Mr. McLean had left the Trust, Mr. John Cargill, Mr. Isaac, and, a year later, before any boat was sold, Mr. Darling was in England. My brother was residing at his country place, and Captain Malcolm, your employé, whose duties always kept him away, alone remained, and then, in 1878, commenced practically by yourself alone these acts of spoilation. In 1872 (k) the "Wallace," making nearly £63000 per annum, was sold to a Nelson firm 400 miles away for £5000, and a boat purchased just before by you put into her place, her running, and her profits. The sale of the other boats shown (l) for which I am told no authority was either asked or given, and boats purchased by you, Managing Trustee for us, supplanted them, worked from the same office, with the same staff, and doing identically the some trade which my dear father had worked up with such care and left in your sacred keeping, bringing in at the time of his death nearly 18000 per annum, but which, under your almost untrammelled control, languished and was in five years strangled out of existence.. What would have been said if, two or three years after the death of Mr. Inglis, the Trustees sold off their large drapery stock at less than onethird its value and put in stock of their own and reaped the profits of 17000 or £10,000 per annum themselves? Yet is not this precisely what you did? A friend of yours told Mr Isaac lately that he abetted this new state of things, but what he did was to purchase two shares of these boats in the same way and with the same responsibility as any shareholder would take in buying shares in the U.S.S. Co., moreover he was not in New Zealand when one of time boats were sold. How my share was sold and at what price I went fully into in my letter of February last year, what my interest was after that may be doubtful, but I am advised that a Trustee cannot buy trust estate, and if he does be still holds it for the benefit of his cestui que trusts. However that may be, and I am assured this legal doctrine will not be disputed, I again say that I have never received my share of the steamers " Enter- page 18 prise "and "Result," nor do your books show that, as such, any [unclear: other] beneficiary ever has. I therefore again request it from you, but [unclear: i] dications of late lead to the thought, do they not, that already in [unclear: valr] the narrowing down process of the clever diagram of the squares [unclear: in] again in operation, and that history in some sort may repeat itself, [unclear: I] "the mills of God grind slowly, yet they are exceeding sure."

A few words about the accounts (n.) They pretty well speak [unclear: fun] themselves. Dr. Eccles, you will remember, had a letter of author from my sister to get from you all the information she had any [unclear: right] to have, I am sure you will never forget with what pertinacity [unclear: and] even licence he used his power, does that (I suppose it must) account for the contrast between the (n.) and the (o.) tables, though poor [unclear: lith] Elsie for whom you were Guardian as well as Trustee, fared [unclear: won] than I. If securities were difficult to get, which I am told was [unclear: seld] the case, why was not the same plan pursued that has been [unclear: adopt] since this action commenced, I mean that of placing surplus [unclear: un] vested moneys in a bank D/R to bring in 4 per cent. I see that [unclear: the] first two items of my list (n.) would alone have given me an income [unclear: n] £130, but indifference, cold cruel indifference, are marked on [unclear: ev] page of this sickening record; till now I had thought that [unclear: fict] alone produced the hard, cold, flinty business man with whom [unclear: the] world was a mere ledger and men and women only odd and [unclear: ev] figures in it, to be dealt with without sympathy, without [unclear: sentimes] and without soul. In your short letter of yesterday you say the "with the exception of the Meadow Dank Award and some comparatively small matters the Court has upheld our management Many of the more serious complaints have, as you know, never [unclear: j] come before the Court at all, such as the sale of the Harbour [unclear: Steamee] at a time the other Trustees were absent, and when the boats [unclear: w] earning from 55 to 70 percent. (l.) upon the prices you sold them [unclear: f] The question of refusing to sell the Island Farm, referred to later [unclear: c] and that too of leaving my Trust funds uninvested and to me [unclear: qua] unproductive of income (n.) for so long a time, and so on. And the Meadow Bank matter "the trustees acted upon the best' advice [unclear: of] tainable." Let me ask you, Mr. Mills, if these two statements (all a most the letter contains) are not exceedingly inaccurate, the "comparatively small matters" are about (1.) £2000 and £600 which [unclear: you] deprived us of, and 24 years interest on them, say fully £5000 [unclear: more] are-these the "small matters" you speak of? Again, what was [unclear: the] best, in fact, the only advice the Trustees received as to the liability [unclear: is] the Meadow Bank Award-let me give them, Sir J. Prendergrast Mr. Haggitt and Mr. Cook advised that the Meadow Bank Estate [unclear: w] liable. Sir R. Palmer and Mr. Archibald said my father's [unclear: perso] Estate was liable. Mr. Jas. Smith, the Trustees' solicitor, said [unclear: I] same, but advised you to go to the Court for guidance and this [unclear: M] Isaac tried to get you to do, but you firmly refused and proposed [unclear: you] self the contribution scheme (b.) which was so disastrous to us, [unclear: sa] now you write that you acted upon the best advice obtained, instead [unclear: a] saying as was true that you acted in opposition to and in the teeth [unclear: if] page 19 every piece of advice the Trustees got.

But if the Court has not upheld your management to the extent you lay claim to, yet it is quite certain that for the loss of three all-important Ledgers and other books, vouchers for disbursements of £50,000 for neglecting to obey the order of the Court of 15th March 1870 to file all accounts before the ensuing 16th September thus making it impossible for us to know what debits were rightly chargeable against our Residue, for my signing at your request and releasing you for all breaches of trust while under the conviction that I was Signing something very different indeed, for implicitly relying in all good faith on your letters and the accounts you furnished that "there was no Residue Estate," for your leaving my Trust Fund uninvested, and for mo therefore quite unproductive, (n.) for depriving me of thousands, (j) and interest on these thousands for 25 years, for [unclear: devoting] £ 600 of our Residue funds to paying interest on Legacies, for devoting £600 more of our Residue to pay a portion of the Bell Award in direct violation of our agreement as proposed by yourself (b.) and [unclear: so] on, and so on, for all which I say The judgments contain not one word of censure or reproof; while for Mr. Isaac, upon whom Mr. McLean and you say, in evidence, devolved an immense amount of harassing work, everything one would almost believe, except keeping the books and receiving the pay, and against whom, during all these three years administration suit, not one single mistake is or can be indirectly chargeable, for him the judgments are profuse with reproof, he ought to have known how things stood," "he was a party to these alleged breaches of duty," &c. &c, while I, who have committed the one single mistake of trusting to what I had thought was your high-toned sense of honour, integrity, and justness, am punished with the most cruel severity, and a fresh will is made for my father, cancelling his instructions written by you, and given effect to in his last Testament.

Is not the tone of your complaints because you think Mr. Isaac writes my letters for me, very ridiculous indeed? I have a complete answer if I thought it worth the trouble to give, or that you had any right to ask it; besides, is it not descending to a very low standard of ethics to write to a lady of her husband in this strain of innuendo and Insinuation which you have lately employed without producing the scintilla of proof that it is deserved? Is it to be expected that I, a woman, should single-handed reply to letters which I am assured are often the joint production of yourself, Mr. Whitson, and Messrs Smith, Chapman & Co., and mostly poor at that, because the materials appear to be in revolt? Surely the question should be, are my statements and figures accurate ?—not who put them together. I assert they are true and faithfully presented, and are not mere marionettes made by me to dance upon the page of fiction.

Some day, Mr. Mills, sooner or latter, here or there, you too may be a suppliant; you, too, may have to crave an indulgence and will Dost certainly have to plead for mercy. I very earnestly hope that they will not be doled out to you in the same measure as you have page 20 in my sore need meted out justice to me and mine.

—Yours sincerey,

Eliza Isaac.