LAW REPORTS.

Dominion, Volume 7, Issue 2138, 2 May 1914, Page 14

LAW REPORTS.

COURT OF APPEAL.

CONTROL OF MISSIONS TO SEAMEN,

MR. MOORE'S POSITION.

MRS WILUAMS'S WISH GRANTED.

Judgment was given yesterday in the Court of Appeal in the case the Attorney-General and the Trustees of tho Missions to Seamen v. Mary Ann M illiams, relating to the Missions to Seamen. Tho judgment was delivered by His Honour Mr. Justice Sim, and was concurred in by tli'e other Judges who heard tlio caso. Tho caso turned on the intention of Mrs. Williams/ as donor of tho mission building, to so establish the trust that Mr. James Moore, in whom sho had full confidence, should bo and remain tho rnissionor. The actual wording of" the deed of trust was such as to permit of its being read •so as not to make Mr. Moore s position permanent; and, in fact, ho left oil account of illncss and on his return was not reappointed. It was clear from the evidence, said the judgment, that Mrs. Williams desired tho property to bo entirely uiidor lier control; and that slio desired Mr. Mooro to be the missioner during his life: but she was induced to consent to have nothing put tlio declaration of trust by tho production of a letter which she understood would procure tho same result. There was a difference between the draft deed and the signed ono, in that certain words in the former wero struck out by Mrs. Williams's solicitor. These words were put in to ensure that tho missioners appointed should liavo tho approval of tho trustees of tho mission, but they were cut out apparently because tlio solicitor, Mr. Brown, thought they referred to Mr. Moore only, and that that point was sufficiently covered by tho letter already referred to.

Thß Judgment, of the Court of Appeal. Ono of thequcstions decided early in the judgment of tho. Court of Appeal ■ was whether there was evidence to justify tile Supreme Court in rectifying the declaration of trust. . The alleged mistake, tho Court said, was unilateral, and in such a caso the proper remedy, if any, ivas rescission, not rectification; but'the Court 'had'power-to rectify a voluntary deed !).>• setting aside a part of it only, and allowing the remainder to stand, if the grantor agreed that such part of the deed ought to stand. That was what was done in the present case. It was clear, the judgment continued, from tho evidence of Mr. Brown (who drew the draft deed) and Mr; Moore (the rnissionor) that Mrs. 'Williams desired, in the first iustance, to have the control of the property in her own hanfrs, and to have it free from the control of any particular sect. According to Mr. Brown, she said repeatedly tliat she would not consent to anything that would take tho.control of the property out of her hands. It was clear, also, that slio desired to have Mr. Moore always in charge as rnissionor during his life. It was proved by cvidcncc that the words which were struck out of the draft had been put tliero to carry out Mrs. Williams's wishes. They ought to have remained there, and to have boon put in tho engrossment, unless it whs clear that sho had changed her mind on the subject, and authorised tho alteration. Mr. Brown said that she did change her mind. It was improbable that she Would do so, and the reason given by Mr. Brown for that change, viz., a wish expressed by the Rev. Mr. Glafeson, was contradicted emphatically by that gentleman. It was important that the hoard should have some control over tho missioner in charge of tho building, for, without that, it would be difficult for the board to secure that tho religious services would bo always'' conducted on evangelical lines, and this, •in tho view of Mrs. Williams, was of tho greatest importance. In .tlio circumstances the reasonable conclusion was that Mrs. Williams did not consent •to tlio alteration, and that Mr. Brown must have made it without her authority, probably through a mistaken notion that it was unnecessary rti consequence of tho agreement between the local committee of the Missions to Seamen and Mooro. Hie draft deed ought,'therefore, to he treated as correctly expressing tho intentions of Mrs. Williams.

The Order of th« Court. The result was that tho appeal failed, and tho Court made tho following order :— "If within seven days from this date the appellants by their counsel intimate that they accept the rectification made by tho Supreme Court, and undertake not to apply i'or leavo to appeal io tlio Privy Council, tiio appeal stands dismissed. If the appellants do not within the timo limited make such intimation and give such undertaking as al'oresaidj then the declaration of trust is set aside, and the Trust Board is. declared to he trustee of the trust property for tho respondent for her own absolute use and benefit. The prayer of tho statement of claim is amended so as to include a claim for this relief. Tito appellants in any event must pay the respondent her costs of the appeal 011 the highest scale." At the hearing of the appeal, the Huiicli consisted of Their Honours Mr. Justice Denniston, Mr. Justice Edwards, Mr. Justice Sim, and Mr. Justice Id asking.

BLENHEIM WILL CASE. DECEASED'S LAST WISH. Tho whole day was occupied in the Court of Appeal yesterday in hearing argument in a Blenheim will case, in which the plaintiff is Riqhard Webb Jenkins and the defendant is the Public Trustee. The action is brought by way of a summons under the Declaratory' Judgments Act, 1908, and is to decide a matter affecting the estate of the late Samuel lluggart, farmer. Briefly, the facta are that Mr. Huggart, by his last will, left almost tho whole of his estate to his brother, and, actor the brother, to the brother's daughter. Shortly before he died, however. lie desired to alter tho will, so as to j;ive money to certain charities, and probably to four cousins in Ireland. Mr. Huggart was then ill iii hospital, and he sent for his friend Mr. Jenkins, and told him of his desire. A new will could not be drawn Out just then, but Mr. Huggart decided to draw £2000 from the Public. Trustee, who was the executor of his estate, and hand it to Mr. Jenkins to distribute as he (Mr. Huggart) wished. Mr. Huggart made out this draw, and twenty-four hours later ho died. The Public Trustee now declines to make payment, and tho Court is asked to decide whether or not be must pay over the amount. Tho Judges on the Bench for this case are: Their Honours the Chief Justice (Sir llobert Stout), Mr. Justice Edwards, ami Mr. Justice ITosking. Sir John Eindlay, K.C., with him Mr. 1). Tt. Hoggard, appears for the plaintiff : and Mr. C. P. Skerrett, K.C.. with him Messrs, T. Martin and J. W. Macdonald represent defendant. Argument continued all day, and was

not concluded when tho Court rose, The case will be continued on Monday.

CONVICTION AFFIRMED. Judgment of the Court of appeal was delivered in tho case of tho King v. Alfred William Aldred. Aldred had been charged with setting fire to a building, and the jury had returned a verdict of guilty, with a rider to tho cffcct that Aldred was not responsible for his actions. Tho Crown contended 'that this finding was really a. verdict of guilty, but it was argued in Aldred's behalf, that the finding should bo taken as ono of not guilty, or that a fresh trial should bo held. The Court of Appeal's decision is an .affirmation of tlio conviction against Aldred. r , A*'., the hearing of the appeal the Solicitor-General (Mr. J. W. Salmond) appeared for tho Crown, and Mr. H. I l '. Von Haast for Aldred.