SUPREME COURT.

Dominion, Volume 4, Issue 1017, 5 January 1911, Page 3

SUPREME COURT.

A TRUSTEE IS CHALLENGED. NEGLIGENCE ALLEGED. Yesterday Mr. Justice Cooper delivered judgment in a civil action brought by Mabel Cnrrington Hutchison against tho Public Trustee. When the case was heard oil August IS, 1910, Mr. S. Hutchison appeared for plaintiff, artd .Mr. A. Gray, with whom was associated Mr. M. Myers, for tho Public Trustee. , His Honour, in the course of a lengthy judgment, stated, inter alia, that piaintitt' was u daughter of the late \Villiam Booth, formerly of. Carterton, and one of three beneficiaries under his will. The defendant was tho executor, of tho will of ill*. Booth, and trustee- of his es'ato. The causo ot action alleged by plaintiff was substantially that the delendant had carried-011 the sawmilling and timber business, which 'formed part of the estate, improperly and negligently from the time of tho testator's death until April, 1003, lirst at a book profit and subsequently at an actual loss, until ultimately, in lOCS, tho value of tho business and assets had decreased to £7017 17--. Id., at which prico it was sold to 'William Howard Booth. Plaintiff asked for a decree directing the defendant to render accounts to her on the footing that the business and its assets at Iho time of the testator's- death, were worth ,£13,1-16 lis., plus <£12,000 for timber rights and .£4500 for goodwill, a grand total of <£'29,618 lis. Further, plaintiff asked that the defendant be ask?d to make pood that amount, and that tho plaintiff bo declared entitled to one-third of the nctt profit so lons as tho business was carried on at a profit, r.mi afterwards to one-third of what would have been tho income, of the whole ot tho capital of tho residuary estate—namely, <£12,2-10, which was not at the time of the -testator's death employed in tho business, and tho .£29,018 lis. which the plaintiff asserted was the value of the business—had been invested' in terms of the will.

, His llonour ruled' thai where, as in the present case,-a trustee was directcil to carry on" the business of his. testator either indefinitely or for a specified term, and to use tho assets of.the residuary estate in the business, he was. not liable if the business,was carried on- at a loss, provided there had been -no misconduct on fiis part. The defendant could r.ot bo Held responsible for business losses. In his Honour's opinion, plaintiff, had failed to establish any breach of duly on the part of defendant. The other two teueticiaries under the will-hjsd not only not complained of tho defendant's management of the business, but had approved oi' his conduct, and had ratified the sale and realisation of the business. Plaintiff hart .failed to establish any ease entitling, her to have accounts taken on J the basis she asked. She was technically entitled to have accounts of the defendant's administration of the residuary esb to and of the business taken by the Court, but for that- purpose the other beneficiaries ought to bo before the Court. At present, his Honour stated, he'would make-no order beyond declaring that the defendant was r.ot liable to make good the losses incurred in the carry-ing-on of tho business or in its realisation and that the plaintiff had failed to establish any ground for having the accounts taken 011 tho basis set out. If the plaintiff desired to move to have the accounts of the defendant taken 011 the footing of this judgment, lie would reserve leave to her to do so. Finally his Honour stated that he would reserve the question of costs and of general libei'ty to>either part)- to apply.