LAW REPORTS.

Dominion, Volume 6, Issue 1685, 27 February 1913, Page 3

LAW REPORTS.

SUPREME COURT.

(Before His Honour Mr. Justice Sim.) "MY LAWFUL HEIR." " THREE WORDS IN WILL. Three words—'"my lawful heir'Vwhich appear in the- will of a settler; who died nearly forty years ago, have given rise to an action, which carno on for hearing in 'the Supreme Court yesterday, before Mr.: Justice Sim. . The action was brought in the form' of an originating summons to obtain an interpretation of the will of the late Charles Rushbrook, settler, of Port Albert. The parties' were Charles/Thomas Eushbrook (son of deceased); civil servant, of Wellington, plaintiff, and Alfred Edward Pkar'man, farmer, of. "NVellsford, : defendant. . Mr. E. F. Hadfield appeared for Eushbrook, while Mr. R. C. Kirk appeared for Pearman.- . " It appears that Charles Eushbrook died in 187 C, leaving a farm of 163 acres, at Port Albert. His widow, Louisa Eushbrook', was administratrix of the will, which directed , that the estato bo held in trust'by her for the members of the family, and upon lier marriage or (kr.t'u to revert to "iny lawful heir." Mrs. Eushbrook: has since died. On December 22, 1911,/ Charles Thomas Rushbrook (eldest ] son of the deceased)ythe, plaintiff, entered . into an agreement with Alfi'cd Edward ] Pearman, the defendant/for the-sale of : the farm. Subsequently the question of ( the meaning of the words "my lawful heir" was raised, Pearman being anxi- < >ouj to. know what his title to'the land I would be worth. Questions were submit- 1 ted to the Court in the following form:—• , Is the .'plaintiff the eldest son of the tes- ' tator? .' ! Is defendant, entitled to require that the 1 deed of conveyance carrvinj the agree- i ment to sell into effect should be. ex- ' ecuted by members of the faftily of ■ the testator? '' The administratrix being .'dead,'should'a . further grant of with the will annexed, be made, and the 1 deed of conveyance bo executed by ,such administrator in order to convey. ' the beneficial and. legal estate in the said land, or does the legal and beneficial estate:rest-in the lawful heir of . deceased by virtue of the terms of the will ? ' : ' ... Who is the 'lawful heir,", according to the true intent -and meaning of the ■ will ?. j Is. the 'defendant entitled to have the deed of conveyance, executed by any person other than the plainfiff.? ■ M:\ Hadfield stated that the other rncni- ' bers of the family .had been served and had all put in "consents." Counsel said his client .was born in England and there were difficulties.'in''the 'way ; of getting certificates'of'birth. He put in the family .Biblejiyinu names and dates of birlh ol members of. the -family and furnishing proof'that-plaintiff ■ was,the eldest son. Mr. Kirk, in the, conrso of argument, submitted that the eldest son was not an .heir/ but that'.the /property should'' vest .in ail administrator (to bo appointed), "who would"' convey all the legal estate to the t •defendant to the members of. the family fgr.-the money.. His .Honbnr,'reserved decision. ' EC EI y,ER*'AP POINTED. APPLICATION NOT OPPOSED. An?application to appoint'a receiver in connection with the business of, L.;. Caselb:rg aiul C 0.,, Ltd., came bc-foie Mr.-, Jus. tice -Sim-'in tlip: Supremo Court yesterday. Thb Sp'plicatipiU-Was in the formof \ nn originating .'summons in the matter'of -ft mortgage debenture (on which the siim'.of i; 500 v.-as no\v.due)'datcd"October 10, 1911, mado W L; Caielbcrg 'and Co., Ltd. Tho parties -,to 'this summons were-the Bank of Now South Wales, Ltd., plaintiffs, and L. C'aselberg'and Co.; Ltd., manufacturersof ICop's Ale, Wellington. ; - ■ • Mr. : 'IV C. A; Hislop-'appeared for-the Bank df New South- Wales, but there-was no appearance of the defendants. 1 His Honour made an order appointing George: Lambert, receiver and nianager'(in' terms of the apDli<aifion),and directed 'that accounts .should-be .taken'before the Registrar,*'who';woiild adjust costs. | " ' . ' ■■ . I ' ■ FAMILY PROTECTION ACT. 7 CERTAIN, BENEFITS.. ; , , .Mr. Justice Sim yesterday heard an application under the Family Protection Act, 1908,-when Emily Annie Jack, widow of tho. late Andrew Jack, of Palmerston North, .applied for certain, benefits other, than .these devised to her under the will. The parties joined as defendants to the action Svere the Public Trustee, executor of the will; lan Jack (nephew of deceased), a minor; John Jack, of Dnnedin; aiid Elizabeth Chilton, Lily Branton; and Mary ASJylie, sisters of the deceased. v ' Mr. n. ,I'erry appeared in support of the application. The Public Trustee/who did not oppose the. applicant, was represented, by Mr. J. W. Macdonald, solicitor for,tho Public Trnst Office, while Mr. T. Ncave appeared for lan Jack, who opposed only so far as interest in the estato was concerned. After tho case had been partially heard, it was. adjourned to see if the parties could come to sonte arrangement, his Honour suggesting this course.