LAW REPORTS.

Dominion, Volume 2, Issue 561, 16 July 1909, Page 9

LAW REPORTS.

COURT OP APPEAL. ', INTERPRETATION OF A WILL. The Court of Appeal, sitting at Welling- / ton yesterday, heard argument rogarding "the interpretation of'the will of James Alexander, deceased, late of Wanganui. The ''Bench comprised their Honours, Mr. Justice 1 Williams (Acting Chief-Justice), Mr. Justice Edwards, and Mr. Justice Coopot. Tho appellant was Alexander Alexander, farmer, or New Plymouth, and the respondenti wero ■ Elisabeth Alexander, of Wanganui, and Ewon ' Alexander Campbell, former, of Wanganui (is trustees under tho "will), Ehzabotli Alexander, in her own right, and Thomas 1 Alexander Low, farmer, of Wanganui (representing all nephews and nieces and issue of ' tho deceased). l Mr. Martin Chapman, K.C., Mr. J. H. Hosking. K.C. (of Dunedin), and Mr. C P i Brown (of Wanganui) appoared for the I appellant. Mr 0. C. Hutton, of Wanganui, f appeared for the trustees, Mr. W H BarniI coat, of Wanganui, for Elizabeth Alexander, daughter of James Alexander, Mr. G. Hutcluaon, of Wanganui, for the nephews and nieces in the Dominion, and Mr G S Gordon, of Wanganui, for the Pubho Trustee, as representing tho nephews and niecos not resident in New Zealand , ' I The'facts, as stated before tho Lower Court, wero that James Alexander, who died 1 on July 14, 1895, devised his estate to trustees, to pay two-fourths of the income thereof to his wife during her widowhood, and, from , and after her death or re-marriage, to pay / one-fourth of tho income to his son, William i Alexander, during his life. Power was given i to William Alexander, in the event ot his leaving no issue, to appoint by will one- , fourth of the capital of the residuary estate of Alexander William Alexander predeceased James Alexander's widow, without issno. Alexander Alexander, the trustee, ' claimed that, by his will, William Alexander did exercise the powers of appointmont as to the one-fourth" of the residuary estate of James' Alexander, and that he (Alexander Alexander) was therefore entitled absolutely to" that share'himself. The trustees of the ' will then took out\ an originating summons to have this question determined. Mr. Justice Chapman had decided that the i will did not 'operate as to the exercise of tie power of appointment given William Alexander. In default of appointment by William Alexander by the terms of James Alexander's will, the fourth share would go i to 'Jamos Alexander's nephews and nieces. Alexander Alexander 'appealed from this docision. ' The Court was occupied all day in hearing argument for the appellant, and an adjournment was made until this morning. f SUPREME COURT. , ' IN CHAMBERS: ' A sitting in Chambers was held before his Honour, Mr. Justice Chapman, yesterday morning. THE HOROWHENUA BLOCK. ' 'in the matter of proceedings connected mth Horowhenua Blook, No. 11, instituted by Mr. 'Baldwin, of Palmerston North, on behalf of the Natives, to quash an order 1 of the Native Appellate Court, dated September 20, 1898, Mr. C. P. Skerrott, ,K. 0., appeared for Mr. Baldwin, j Mr. Menteath for the Natives interested under the order, and Mr. H. D. Bell, jun., for tho Crown These, proceedings had been removed into the Court of Appeal, and Mr. Baldwin, in order to' make certain amendments in the procedure, abandoned the previous proceedings, and commenced proceedings anew in the Supreme Court. Thereupon, the Crown, and counsel for-the Natives, drew up an order removing the case into the Couri of Ap- , peal, and desired to_ inßist that the proceedings i should go on in the Court' of Appeal A motion was how made to v dischargo the order removing the case into the Court of Appeal, upon the grounds that it was drawn up after the proceedings had been abandoned. 'Mr. Bell contended that the Court had not jurisdiction to'decide the motion, as the Court of Appeal was now seised with the matter. His Honour reserved'-decision. , RATING OP, CHURCH PROPERTY, THE-FEILDLNG CASE.- *- His Honour delivered his judgment in Te- ' gard to the appeal, John O'Meara v (Mr C P, Skerrett, K. 0.) versus , the Feeding Borough Council (Mr Martin), which had been previously mentioned uT,ChomboTS. The appeal had been heard by his Honour in the Supreme Court at Palmerston Northland had reference to a decision of Mr.'A. D. Thomson, S M The Magistrate awarded the boiough the sum of £8 2s. -10d for rates on certain property in connection with a Roman Catholio School, claimed to "be exempt under the Rating Act, 1903 The appeal was dismissed'by'tlie Supreme Court, with £7*7s costs, his Honour holding that the appellant had cot proved his right to the i exemption claimed. His Honour, in considering the application of ,the appellant for leave to appeal to the Court of Appeal, said' that, the questions raised before the Magistrate involved two or three distinct questions of law, which did not appear to bis Honour to arise fully from the case as stated, some of which could not be dealt with on the appeal The appellant asked for leave to appeal, on the ground that he represented the Church, which had many similar properties _ This was disputed by ( Mr Martin, and his Honour was inclined to think that the circumstances would vary in different cases If he thought that the > rights of the parties could be effectually ,' disposed of by an appeal, and' that other j questions were likely to bo settled by it, ho would grant leave to appeal. However, ' tho borough had an interest as well as the ( appellant, and its interest was, to have all the'questions that might arise in the action i disposed of together > His, Honour refused the appeal, as he did not think an appeal i would settle the rights of the parties. This refusal would not leave the appellant with- , out redress in,the future. He would, pre- ' sumably, have an opportunity of raising his , defence next year. 'The borough, if asked ■ to,do so, might see fit to sue him in the j Supreme Court, so that, after tho evidence ] was taken, the case might be brought be- i fore tho Court of Appeal, or a Court con- i sisting of more than one Judge If not, ] the appellant would not bo without means ( of obtaining the same end i If the case fell j ■within Section 58 of the Judicature Act, 1908. he might find means of going direct to the Court of Appeal. If not, ho might appeal to this Court in the ordinary way, and ask to have the case heard before tho < Full Court at Wellington.