WILL AND CODICIL.

Auckland Star, Volume LX, Issue 228, 26 September 1929, Page 9

WILL AND CODICIL.

DOUBTS OF AN EXECUTOR,

QUESTION OF COSTS

Judgment in a case of interest to executors and trustees was given at the Supreme Court this morning by his Honor Mr. Justice Blair, the matter concerning probate of the will of Leopold Zeiss. Whangarei, retired farmer. The deceased made a will 011 January 31, 1928, appointing R. K. Trimmer his executor, and leaving his whole estate, sworn at under fSOO, to one R. P. Boag, a stranger in blood. On January 21, 1020, deceased executed a codicil leaving £000 to his sister, Lina Nortman. This latter document was'obviously the work of an uneducated layman. It was witnessed by two reputable persons in \Y hangarei. one being a medical practitioner. Deceased died 011 January 23. 011 February 11 a caveat was filed on behalf of ilrs. Nortman. On March 14 the executor named in the will, who is a solicitor, filed a motion for probate of the original will, and in the executor's affidavit omitted all reference to the codicil.

His Honor thought the proper course for an executor to take, when there was more than one testamentary document, was to disclose all- such documents on application for probate, even if he doubted the validity of some of them. In the present case the executor took what he honestly believed to be the proper course. He had what he considered reasons for doubting the validity of the codicil, and was aware that a caveat had been lodged and that , the interests of the caveator would therefore be looked after.

The codicil as well as tlie will had 1 - been proved valid, continued his Honor. The estate was sworn at under £800, and the specific legacy to Mrs. Nortman was £000. Her counsel asked for costs against the executor, and that'they come out of the residue of the estate so that Mrs. Xortman's share should not abate. His Honor ordered the costs to be paid out of the estate. The effect of the order would be to make the residue primarily liable, but the judge did not think he should make an order that would have the effect of indemnifying Mrs Nortman's share from all liability for costs should it happen that the residue of the estate was not sufficient to pay the costs.He did not hold that the executor should be personally charged with the costs. As for the case Wilkinson v. Corfield, quoted in support of that application, the judge pointed out that there the executor had set up a false defence—a clear case of misconduct. The order of the Court was tliat the costs of both caveator and executor be paid out of the estate, the residue to be primarily liable for such costs. Mr. A. Iv. Turner appeared for the executor and Mr. Kirker for the caveator.