SUPREME COURT.

Dominion, Volume 7, Issue 2164, 1 June 1914, Page 11

SUPREME COURT.

A BELATED JUDGMENT . WELD AND OTHERS V; DILLON In the Supreme Court' on Saturday morning His Honour Mr. Justice Hosking delivered judgment in tlic case of I£. A. Weld and others v. Francis Noel Dillon, heard in Wellington ou February 21 and, 24 last. At tho heaving plaintiff was represented by Mr. C. P. SUerrott, K.C., and Mr. Kennedy, whilst Mr. H. D. Bell, K.C., and Mr. Fell appeared for defendant. \ Tiie question at issue Was the interpretation of a provision of a. will. The testatrix was the owner of Leefield sheep station, and in her will she provided that her son (the defendant) upon attaining the age of 28 years should be permitted to purchase tlio Leefield property and to become the absolute owner thereof (subject to certain cucumbrailces) upon paying to the trustees tlio sum of £26,288. Tho encumbrances which were not to bo extinguished by tho purchase money were described- as "all charges, mortgages, and encumbrances to secure any moneys to which I may be directly or indirectly entitled." At the date of tho will there was a mortgage on tho property to the A.M.P. Society. This mortgage, was originally effected for £11,000, but at tho date of the will, tlio sum of £2225 only was owing on account of the debt. There was also existing at the date of the will a mortgage which tho testatrix had effected in favour of tho trustees of her marriago settlement for the sum of £6731 55., being a sum subject to the trusts of that settlement and which the trustees had advanced to her. Under tho trusts of that settlement, tho testatrix was entitled to the income of the settled funds for her life. The balance duo on the mortgage to the A.M.P. society was paid off in the testatrix's lifetime shbrtly after the date of tho will, whereupon that mortgage was released. The mortgage to the trustees of the settlement continued in existence lintil, and was in existence at the date of her death for tho full amount', for which it was given. Interest under this mortgage had not been formally paid by the. testatrix because of. her right to receive the income under tho settlement. For this reason the interest was treated as paid by her to the trustees and an equivalent sum treated as paid by the trustees to her as the income to which she was entitled under the settlement. The son had attained tlie age of 28 years at tho date of his mother's death, and in terms of her will he eleotcd to purchase the property. The trustees oamo to tho conclusion on the construction of the will that the , mortgage to sccure tho settled moneys was not a mortgage to secure moneys to which tho testatrix was directly or indirectly entitled, and therefore discharged the mortgage debt out of tho residuary estate. There was 110 other encumbrance then existing on the property.

It was the construction which the trustees acted upon wliich was challenged. '

In tlio course of a leagthy judgment His Honour said: Noiv, as stated, the position of the testatrix with regard to the funds wns that at the date of her will her sole interest in them was.that, of being entitled to the .inoomo • therefrom for Her life. "Entitled" is 110 doubt a term of the widest to indicate ownership. Its sense is, if possible, widened by the use of the words "directly or indirectly." Giving the widest meaning which the word "entitled" appears to me to be capable of in its connection, I am of opinion that it does not. even with the addition of the words "directly or indirectly," describe the relationship in which the testatrix stood to the settled funds. She certainly was not entitled (<5 those funds directly, nor, in my opinion, war she entitled to them indirectly such as through the medium of a trustee if that can be said to be an indirect title, or upon a contingency, or in any other relation to which the word "entitled" would be applicable.

In concluding, His Honour said it was noteworthy that the will spoke of "charges, mortgages, or encumbrances," although at that time there was nothing moro than an ordinary mortgage in existence, thus emphasising, in his opinion, the intention to provide in the widest terms for possible future burdens in respect of moneys to which she was entitled, and in terms which at anyrate would be perfectly adapted to any of the methods suggested as metlhods of creating or maintaining such burdens'oll the property as she .desired should be borne by the property, as against the rest of lie'r estate. In His Honour's opinion, therefore, it was quite possible for a class of encumbrance to have been in existence at testatrix's death to fit which tho words in question would have been perfectly apt. The question put by the special case must therefore he answered in favour of the defendant. Judgment was entered accordingly for defendant.

A QUESTION OF DOMICILE., RESERVED DIVORCE JUDGMENT. When tho case of Savilo v. Savile, a wife's petition for divorce 011 tho' ground of desertion, was heard on May It), Mr. Justico Hosking reserved decision ill order to consider two points: (1) From what date the desertion commenced; and (2) whether at the commencement of tho desertion the husband had abandoned his New Zealand domicile. In 1893 respondent who had been in business as a builder, got into monetary difficulties and went away from Now Zealand to Western Australia) where petitioner subsequently went to him at his request. Later 011 respondent and petitioner went to South Africa where tho husband worked as a carpenter at the mines at' Johannesburg, whilst the wife lived at Bloeir.fontein, being visited there from time to time by her husband. In February, 1908, the wife returned to Now Zealand. Respondent did not accompany her, but gave her money and told her to go saying he would follow very soon after her.

In giving his reserved decision 011 Saturday His Honour snid that after considering all the matter involved, he was enabled to draw the inference (although the ease was somewhat on the border-line) that- the respondent's mind, when sending his wife 011 to New Zealand, was to do without her in the future, and i'hat therefore the desertion dated from February, 1908, and, therefore,, more than live years before the filing of the petition. His Honour also held that respondent had not at tho date of desertion abandoned his New Zealand domicile. A decree nisi, to be made absolute after three months, was ordered. Mr. T. M. AVilford appeared for petitioner, there heinc: 110 representation on behalf of respondent.