LAW REPORTS.

Dominion, Volume 7, Issue 1922, 3 December 1913, Page 3

LAW REPORTS.

-9 ; : SUPREME COURT. THE ESTATE OF MEROPA TIMA, POWERS OF TRUSTEES.

His Honour Air. Justice Cliapman de-liv-cretl his reserved decision in tho case of Hopala Itaunpiri and cthcre \. tho Public Trustee, in the cstato of Alcropa Tima, late of Alnnakau, deceased. Tho caso was an originating summons to enable the Court to determine whether tho sale of the land of an insane Maori had affected anademption of a devise of tho same land, file testator, Alercpa Tima, was married according to Maori custom, to the plaintiff Hopata. "There is no pretence," his Honour said, "for suggesting that mauiages not in accordance witn tho law of Xew Zealand have any validity. If tho -N'ntive Land Court recognises tho right of the issuo of customary unions, including thoso which are polygamous—a recognition which may w_'ll be necessary in the interests of' justice—this Court does not interfere, but that circumstance does not give to such marriages eveh» the colour of validity. Alcropa made a will dated July 3, 190G, whereby she iscd her interest iu a section of land to the first-named plaintiff, under the name, of Kobcrt Ransfield, and to his son, the other plaintiff, if his father should he dead. Jlcropa had no children. Akuhata is a son'of a former so-called Maori wil'o of the other phiintiif. Probate of tho will was granted to the plaintiff, li-opata Rnnapiri, as sole executor, on July 1, 1913. Meropa having some time before January 19, 1911, become insane, the Native Land Court.on that date appointed the plaintiff, IJopata, trustee for the purposes of the iS'ativo Land Act, 19CW, in respect of her interest in tlio piece of land in question. On May 8, 1911, Bopata, acting as trustee for Meropa, sold the land for £1200. That Sale was confirmed by the Ikaroa Maori Land Hoard on Juno 30, 1911, and tho laud was duly transferred to tlio purchaser. .Hopata says in his affidavit: The reason "for the sale of the said section by .me was to provide a fund, tho income of which would he available for the purpose of providing an income for the maintenance and support of the said Meropa Tima. who for sonic timo before the said sale and afterwards, up to tlio timo of her death, required care and attention, and was able to do \ery little or nothing for herself.'" His Honour continued: "The plaintiff's claim that as tho sale was not that of Meropa, but of a trustee, whoso position is the same as that of a committee of her estate, tho nature of tlio property is not changed, there is no adeni]> lion, and consequently tho sum of £1200 is impressed with tho trust of tho will. Tho fund is at present in tlio hands of tho Public Trustee, pursuant to Section 13j of tho Native Land Act, 1909, which dees not allow a trustee appointed under that Act to receiro a liquid fund produced by a sale of laud wit'hont the sanction of tho Court, a sanction which the Court certainly should not give in the caso of a solo trustee, whether Native or European. Under tho latter part of tho Section the ■trusteo so sinpointed is recoßiiised as retaining office and the Public Trustee is referred to as his agent, but nevertheless the Public Trustee is to perform the duties connected with the trust. Section 170 defines the status of the trustee with reference to the land. . It does not vest in him, but remains vested in'the beneficiary. The section goes 011 to declare that tho trustee shall, in the exorcise of all powers conferred on him by the Act, be deemed to be the agent of the, beneficiary. The trustee; so appointed is bv Section 180. Sub-Section (I),.clothed with tho very large power, oxorcssod in' the words, 'and may accordinglv exercise in the name and on behalf of tho beneficiary all powers in respect of the alienation or other disposition of any such laiitl or property which the beneficiary might himself have exorcised had ho been under no disability, and had no such trustee been ( appointed.' The. only restraint upon tho exercise of this power is that which arises from the necessity for obtaining tho confirmation of the Maori Land Hoard under Section 220, that hoard being iu the position of a guardian of tho interest's of Native owners."

After discussing at considerable length tho bearing of English' authorities on tho matter of lunatics' property, His Honour said:—"ln England a sale of property simpliciter with the concur-. 1 rence of tho Lords Justices would in former times havo effected an ademption. Hero wo have very simple machinery; the Trustee may sell, subject to the sale being confirmed by the Maori Land Board. The Legislature has declared (Section ISO) that when ho sells ho does so as the representative of the owner." It seems to me that I must therefore, look upon this sale, which was admittedly made for tho owner's benefit, as if it were'her sale. Mr. Trcadwell has argued that Section •194 w a s designed to preserve such property unaltered in quality. That section" was passed for the protection of the Native owner, not that ;of his devisee. ~lf he had sold, and'the proceeds were iu the hands of the Public Trustee, the Native Land Court would proceed to adjudicate upon it at his death, as if it were a piece of land, but in doing so, it would applv the ordinary rules; and lh<Mi it would bo found that the land which the Native had specifically devised was gone. So wh'9ll this land was sold with the statutory authority of tho owner, it was gone, jiist as if the owner had converted •it into, money. '' ' -

"I recret, to have to come .to,this conclusion." His Honour concluded, "as it really defeats the. last-expressed .wislion of tho testatrix, but I cannot see my way to any other."'. All other questions arising under the orii;iiiatini4 summons were reserved. The Public Trustee will nay tho plaintiff's costs £12'12s.,'and his own out of the, estate. At the hearing, Mr. C. H. Treadwoll appeared for the plaintiffs, and Mr. J..IV. Mwlonnlcl for the Public Trustee. (Mr. Trcadwell was granted leave to appeal, without security.) ANOTHER WILL CASE. A further decision was' delivered by His Honour on another originating summons Jiy which the plaintiff sought an order to enable .a capital fund to be paid out to her on tho ground that she has no issue, is unmarried, and is past chilti-bearingi Tho Public Trustee is the present trustee.under a voluntary, settlement mado on November 14, 1878, bv tho plaintiff's father. The fund was then a piece ofi; land; it is now a sum of money in the hands of the Public Trustee, tho land bavins been taken under compulsory powers. After providiiiLC for management the trust runs: "During such part of the life of the said as she shall continue, unmarried to pay. her.the rents and annual proceeds from tho same, and, after sho shall marry, then (luring coverture, to pay the same to lier far her own separate use, free from the debts and control of her husband, and without power to anticipate the name by sale, mortgage, or otherwise . . . and after the death of the said to hold tho same lands, hereditaments, and premises iu trust for all tho children of the said equally, and, if but one, for such child only." Mr. Ci'onibie, on behalf of the plaintiff, contended that it was a case in which the settler intended to part with his whole interest in the property, and as his bounlv only extended to his

daughter and her children she urn si. by construction be held In be entitled In the fund, in virtue of :■ resulting trust in her favour. "I can find no foundation for the nrminient," said His Honour. "'.I ho settlement in this case creates a mere life' estate in favour of the pniintifi. There is in it ilo manifestation on llio part of the donor of an intention to dispose of his whole interest, and 1 cannot find such an intention merely because .it is open to me to conjecture, that the omission, lileo some other sujjc.gested defects in the instrument, are the result of defective drafting "Another difficulty has been pointed out to mo, which seems to mo to he a serious oi:o. namely, tha.t if the teuan6 for life were to receive this fund and marry, the duty of the trustee to pay the income to her for her separate use without anticipation could not operate, and the donor's intention would be defeated. This being tho ease, the question of ordering a fund to be paid out to a lady aged* 51 does not arise, but I know of no case in which a woman of that age has been judicially determined to bo past child-bearing, and counsel inform mc that they know of none. Two years make a vast difference in applying the law of probabilities to such a matter. The application is refused, hut I think it proper to allow the plaintiff £6 6s. costs out of the fund. The Public Trustee is also allowed his costs out of the fund." Messrs. Macdonnld and Kelly appeared for the Public Trustee. DIVORCE CASE. On behalf of John Fuller, jnn., Mr. T. Young made an application that tlio decree nisi of divorce granted him recently should be made absolute. Mr. T. 31. Wilford, on behalf of the respondent, asked that the .application be adjourned. The affidavits in support of tlio application had been handed to him only on Saturday morning, and some of them required answering. He would lileo to file several affidavits in reply, hut he had not had time. His Honour said that it would be best to have all the affidavits before tho Court. He accordingly adjourned the application until Friday next.