SUPREME COURT.

Dominion, Volume 7, Issue 1895, 1 November 1913, Page 14

SUPREME COURT.

THE OLD SETTLER & HIS WILL. An interesting case was argued ycstorday before the Full Court. The proceedings concerned the will of Samuel Huggart, farmer, who died at the Blenheim Hospital on August 27. The questions to be decided were: Whether the document _, was a will, or whether it was a valid donatio martis causa inoperative by roason of non-payment in deceased's lifetime. His Honour the Chidf Justice (Sir Robert Stout) presided, and associated with him were Their Honours Mr. Jutioe Cooper, Mr. Justice Edwards, Mr. Justice Chapman, and Mr. Justice Sim. The plaintiff was Richard Webb Jonkins, manager of the New South Wales Bank at Blenheim, who was represented by Sir John Findlay, K. 0., with Mr. Hoggard; and the defendant was the Public Trustee (Mr. F. Fitehett), for whom Mr. J. W. Macdonald (solicitor the Publio Trust Office), with Mr. F. E. Kelly appeared. Sir John Findlay explained the circumstances under which the document in dispute was signed. He stated that the death occurred at Blenheim Hospital of an old man. (Samuel Huggart) who had made a will some three years ago, leaving about £7000'.t0 his brother and niece in Ireland. The old, man had met with an accident, and was dying. Ho several times expressed a desire to plaintiff that his will should be altered, and the day before his death he asked Mr. Jenkins what the position would bo, as matters stood. Plaintiff informed bim that, as his will left all his estate to his brother and niece, they would get the whole of the £7000 .which the Public Trusteo held for him. Thereupon the old man replied: "That's i'ust what I don't want," Ho asked plaintiff if anything could, be done at once, and Mr. Jenkins replied could then prepare a will or codicil, but suggested that the old man should sign a document in tho presence of witnesses, and, this was'done. By this document the testator desired that £2500 should be drawn from the Public Trustee by Mr. Jenkins, who was to divide it amongst certain/, charities. Mr. Huggart died nest day, but the-Publio Trustee declined to obey the order. Mr. Justice Chapman: If Mr. Jenkinß had got the money on the same day he would not have been a trustee but merely a banker. Mr. Justice Edwards: That does not make the document a will. Where is the declaration of trust by the creator P Sir John Findlay then quoted Boveral legal cases on tho same linos as this to prove that this document was a will. On behalf of the Public Trustee, Mr. Macdonald contended that thedocument was not a testamentary writing, but was intended as a step towards a donatio martis causa, which had failed by reason of non-presentation. The Chief Justice: You have to show that it is not a will. f Mr. Macdonald: Deceased intended, it to be a donatio; but it failed. Had it been: a cheque it would have failed by reason of deceased's death.before payment. The Chief Justice • thought that the document was the first stop towards a trust, and that this was a gift rather than a bill of exchange for value received. Mr. Macdonald said that the effect of this document was that the Publio Tiustee was asked to execute a trust not evidenced by any writing, and_ if that was done they would be | setting aside all the elaborate provisions of the Wills Act created for the estates of doceased persons; It would be a dangerous innovation to extend that principle, as it would throw over all the safeguards created by tho Wills Act. There was, ho evidence in writing as to what plaintiff was to do with this £2500. The Public Trustee had no idea what the charities were which were to benefit. In reply, Sir John Findlay argued that the document was of a testamentary character, thero being no time to make a will or codicil as tho testator was expected to die that day. .Judgment was reserved.