LAW REPORTS

Dominion, Volume 7, Issue 2189, 30 June 1914, Page 4

LAW REPORTS

COUfc OF APPEAL

RESERVED JUDGMENTS '■A DEATHBED BEQUEST PUBLIC TRUSTEE'S INVALIDATION A fitting of tho first division'of''the Courj/of Appeal was hold in 'Wellington yesterday, when five reserved judgments' were; delivered.. The ■bench; was occupied jby tho, .Chief.. Justice- (Sir. 'Robert Stout).;; Mr.; Justice ■Denniston,-,-,Mr, Justice Edwards, and.Mr., Juetico Hoskreading of tho .judgments'oik cupisd-the C»urt v froni U o'clock in the mortjuig ÜBtil.;-nearly; 4 '.o'clock in tho sfteritoon. ~.>..„ '.>■:■.. ■ M DEiixHjßib BEQUEST. l|s VALIDITY QUESTIONED.. Tli'R3lirst.'<*!iSe !; ari'origlnating summons'-.taken .sunder ..the Dc- | claratory Judgments. Act,,-;1908,;.in. .the tho es'tato of the 'lato Samuel .'Huggart', fofii-Blenhoim, .va -retired farmer. Tho.plaintiff,was:Richard Webb•' Jenkliis, manager.'.of' .tlie 'Bank;of '<New SoufcteWalej?, afc'Btcnfl'dim,;and; th.o : defendant wtfsHKo i I > üblio l Trusteej;V'exepu-. torninder iho'nvillji Tho.'matter ; canie. befqjiE the Supremo Court .some time agogbut was removed into the Court of Appeal, where it was argued in April ■'. . .. ' ■': '".<:. ■ Byjplis Tast'Svill,'Samuel Huggart had allotted almost the- wholoof his estate to £is : brother, or. after the brotflier, to tlie?brother's daughter, i'Subsequently, ivhen Huggart pitalpho sent,iiPr v Jo|>l?i. n ? (tt*' plain-; had b^>his;banker»and^nan i; , ci_al£aavisor for«miny'wypafs,'--i«ndv'asked' him.-tfl find his worths ptt learning t¥at he was worth" remarked that he did not see why lie BhoukLleayo.so much money.to.,his-bror. therand niece, tlio matter of' m~alcing*''another-'!vi!l,- and' added; that' wheiuhe was'beiterh'e'rfoulii s'ißna new o'ne.~;His healtli. became, worse, however, find ;he told Jenkins that ho would like to mike a new will at once. . This, Tiow- ' ever ; \could not ibe done, biii:6n' the su'k-' gestion of 'Jehkfhsj , Hijggart drew. £2500 ujjon-the Public Trustee, Ctfd handed the withdrawal paper to Jenkins to furnish tho flatter out his ■)ri3hes.;.rln tho of, transactioit: Jenkins "tmdefstood that" certain' sums-would go to certain charities, and •• might:,',bo ; . given, to ,-four cousins in Ireland. Euggart died about 24 hours later. The: Public Trustee jfterwards declined to make payment of the .£2500, and the main question for tip .'Court', was. ] whether , -.he . mu.sjb' .pay over tie , 'amount'or not;' , ; A""'-::'--;'* ;. >, 'At tlio hearing, Sir John Findlay, K.C., mtii him Mr. D. R. Hoßgard, aopeaijed, for : ,.JeUdns,- and. Mr. C, T.' Skerrett;, JC.C, .with, .him ..Mr. M.'-.-.F.. fepresented tho Public Trustee. [ Th^'ir.'Honours were unanimously of had.'act- , ed vjjbTtih his'Tichts in declining to pay oyer stKe ajnoilnt, and ,, tho case , was decidedj.itt''liis favour.; , . ■ • Findlay applied for costs for tho gronnd ,-that he.had.nn interesfrjin tho o'asq' except that he hid enteredi'<into it' to carry oiit the wishes of tho deceased, find at the request of the ijulilio Trustee. Thlif Court allowed Jenkins Supreme , Court costs as between solicitor and clionl 1 , and also allow<s;h,irn costsjin tliO;| Court of Appeal on, 'tlie vjiighest scale, tho amounts to bo paid out'of the csta'te. ■ % ;-V . ':'., ■(■•' '■■:■:■ ■ . ••-( V; ' . j- ■'■■■' Rights of two natives. . S.N APPEAirUNHELD. / . B.t^4.'m ai ' or ' t ' Y ver .dict, the Co'urt upheldgthft appeal against the decision of . Air. 'JJus'tico Chapman in tho caso of RopatafjEanapiri .and ,Akuhata. Ranapiri>T. itho Public Trustee, which'icon-' corned jjhb !rights-of ; : tlio ■■ two Nativo appjjljants to.the.proceeds.of.thesale of , a pifecc-p land at Ohau. The land originally} bfelonged to Meropa Tima, a Maori' woman, who, some- time' before her ifileath, -became •■ of v unsound mind. Rop.a|a'fßanapiri: .(who'...was,:.in Nativt was., .appointed trustfiorftn respect of Iter interest in..this' land. In'vMajS K lolirKqpata Ranapiri 'trustee) sokrt'liq , f lniid'for £1200. Section wnß'Jltg2J; roT i^ o W l '^ 1 : 0 !? , ?' f°i', tlio mainteniince'"u ; ind support 'of .•Meropa"' Tima,. jclift. njo.uirod.caro and attentipn. and wni pblo to do very little or nothing for lie'r'sblf. ;,lrf:her''-will (madb" before tho i ,ea,lb};^lei , Tima had bequeathed her property',J:<!;,'R<ipata.; R,anap_u>,'^iw.'hi3' , piri,^.''^Q^)i'e^<rea'tK^«pa&'|.<!Jainie4-' of "th9..sale;,we're in th'c\7 anri'jjpassed to him;; and-Mns^imijunaei , tho'will. An'orisiri-. taken iii,..thp' Bn-' premo this point. T])S : caseVipV;tlVo;;Siirirenie Court , was heftrdiW-HisiHorMHr''*Mr.' Justice Chapagainst Ropata Rana-"piri^eniarking-tliat.'ivTicn the land was sold, it wds y goi«> jitst as. if-,-.the' owner }>a<t convei - te]Tit-i)ito' , money. •

The 'Chief "Justice, Mr. Justice Denniston, and Mr. justice Edwards delivered,separate, judgments, in -.vyhich they allowed 'the' appeal, hut Mr. ; Justices Hosking.dissest«l r: beius ,of opinion thai , tho'vappeaUshould be:dismissed;■'Ph© intimated that the question of '^JJowinti' ?.a|ainst,'.the" Public Trustee would''bo. considered..., . •Mnl C. 11. .Treadwell represented tho appellants. wKilevMrJ J.'.W. Macdonald' apHjjjfred fou-'-ihpiJZujßlift'' Trustee.! v .- • |!| INTEREST. ' FELL OF THE LATE .ALFRED 3*l HENRY< PRICE. '■ j,i ftlymc'ut-,-3v«f f a Iso ,delivered in.connection.' with Jiii ';«jjiciil .from' the deciswii ofUtfi»P)Tiisti«> (jhapiiiau, on an ixct-lou dealing with .a questipn. arising . oiiljbf thiS'ynll'oJ th'o';late Alfred-Henry , Price, of-.' Tangarewa, Tafeapau/i,Hiuvke's Bay. ; The plaintiffs iu j'Jthe origlilal-'iac'tion. iif«ro Charles Hill, sUeepfavmcr, of Poran-gahiiUj'-aiid Frank''White, sheenfarmer, ofj.Tanej trustees of the - will of the de<:ciu;ed. 'The defendants were Frad- , Aslitd'u'; Price, shncpfarnier; of Takapau three ' daughters of deceased (Jlhbel .'Nelson, Ellen Gertrude' White, an'rl.MaHih'iimia Price); and'live sons of thtii ;jdeceased' (Arthur Edward Price, Thpmas Godfrey Price, John Price, Harold -Vlasoa Price, and Arnold Mason Price). . ... •

AlfiSd.Henry Price died cn Juno 1, 1901, "leaving tlio bulk of his personal ;hi.3 widow,' and ibis real were to admfiiister thb estato''aV /directed until ths youngest surviving child of testator atttvincd the a«e of 21 years, when distribution. woi)ld. tak.o pldi;fli;in; a manner spteifieiii'.lh August; 1 1908, His Honour Mf. .Cliapmoh) had :th'o will before him, when ho henrcl an originating summons to dotermino._tho, rights of parties and settlo questions a«' to' thd duties of trustees. These questions were raised on the application of;one of- the sops to obtain an advance oil his expectant share. In dealing. ;_with this' matter, His that the shares of the beneficiaries vested at least as.early as tho-youngest surviving

child should attain the ago. of 21. The question as to whether the shares vested at an earlier date (say, for instance, at tho death of testator) was reserved for argument should it' require ttt bo decided. Siuc'o then tho death of ouo of tho infant children (Arnold Mason Price) rendored a decision on the point necessary, Tho will therefore camo boforo His Honour Mr; Justice Chapman, who held that so long, as the annuity went to tho widow it was held by her on condition that slio maintained and educated tho children. Upon the fullest consideration lio had been able to give to that peculiar will, ho held that tho share of the deceased was a vested share.

From this decision tho defendants appealed, on tho ground that it was erroneous' in point of law. At tho hearing of the appeal, Mr. C. P. Skerrett, K.C., with.Mr. J'.' H. Gr. Murdoch, of Napier, represented appellant, F.. A. 'Price; Mr.v;H. Av Cornford, of Napier, appeared for.ilio trustees and infant; whilo Mr. E. F. Hadfield appeared for the threo daughter's of .tho -deceased. Tho appeal was unanimously dismissed with 'costs on the highest scale, •as from a ,distance. , .. . MAJOR KEMP'S MONUMENT. proMacted litigation. / A considerable amount of litigation hasyfolloTffil. tho efforts of Mrs. Bora Hakaraiai'-'of Levin, to- perpetuate the memot-j-'.'of" hor brother, the lato . Major Keiiip, wlio.was a notable figuro on the Britishi 'side in'the Maori wars; Ono i ofi%his . litigation .was settled by a judgment- of the Court of Appeal delive/ddyye'lierday, but other features of tho.'case"^iive_been, expressly left open by:,|he'.£6urt in. order that the" psrties further ..opportunity of es-' ;tablishJn'g;-rsluy/'right's 'they .have. ■■'-.It was'jMrS.. Hak'araia's wish to preserve Major !Kejnp?S memory by erecting a . monument at Wangunui. The matter'first came into the Law Courts in May,- 1013,' tho plaintiffs in the action being.'Frank Harris - and Co., liquidation), of Auckland, and Restoll (the liquidator), Auckland. Tho defendant was • Mrs;'HakaraiaA; Harris,and Co. alleged •'that ..they jhad- had the statue' executed to Mrs. HakaraiaV ortler for £1000. Subsequently,; inscriptions which were to cost £150 were ordered, ind thus .the total cost.was,to be £1150; A sum of £550 had been paid, loaving.£6oo unpaid, and this latter amount tkey now sought: recover. Mrs. Hakaraia'.s defence to this.claim" was a'denial that any such contract was entered into as alleged. She said that, >■ originally, sho had ordered a monument which was to cost £650, but that, when the-statue was finished,, she refused to pay for it, and'entered into; a tresh contract, under which'. Harris ;and Co. were-to re-erect the.monument and replace the figure with , a now one. When this lia,d lieon completed, Mrs. Hakaraia 'said that? she was' to''pay:£llso.;in full settlement. 1 At the same time: that Harris's "claim was heard, Mrs; iHaka•rtia counter-claimed "for the return of £550 which she had , handed over in part payment. ' * •• The action was heard at Palmerston North in May. 1913, before Hi's Honour Mr. Justice .Chapman and. a common jury of twelve. 'Hie jury found in favour of Harris and Co., and judgment ■was entered for that firm for tho £600 claimed, with £1819s; 9d. interest, and £162 14s. Bd. as costs of the action. • In. June Mrs., Hakaraia's ..solicitors moved for a new trial on the ground : that the .verdict of the jury was against ■the weight of evidence. Ms| Justico Chapman heard tlio motion, and. decided that .tho'verdict must be set : aside and a,Jiew .ordered, -Jfis Honouiybemg opjftioijjtliat' go the completion: "of the contract was ft'gainst the weight, of evidence. • ■ -i. Against' this decision of His. Honour, Harris and Co. appealed, on the ground that it'was erroneous in law ►and fact, • and that the verdict was not against the weight of evidence. r V-'ln-a judgment of-tho Court, ?: read yesterday by Mr. Justice Edwards, tho ■appeal, was dismissed, the Court expressing .the opinion that the learned Judge '151' tho Court , below was; quite justified in tho conclusions attyhicn he arrived./. ''Indeed" (said the judgment). "the . caso,; against the 1 appellants may "be put far more strongly thi\'n .It was put by him —so strpngly. indeed, that it' appears, to lis'that if the of-tho learned JifdM.. had been'drawn 'to'' the wholo of. tho ?acts the appellants must havo been nonsuited, or judgment 'must have boea entered for the respondent, at the . trial." . ' Tile judgment. in'thoVCourt bfelo'w was vailed by a dircctieiiiHlfat judgnjent bo ejitpredjor the restwfd<!Jit (4ef?ndant) wiilh coats in/jtio .Coili'tjbeldw $n the scale'arid with the gjranted to tplaintlffs) and theviisiial stllowajices' for witnesses' afidV-'ptlfer ["dishurse.;ne!its,''sjid also with ' the Vostsc'of the ■ motion for the newvtrinl fixed .by tlio Jearned Jiidge..dpd;'teserved.;;, the' Court., of appeal;' respondent was allowed the costs of the appeal on the ..scale as-.on. a case, from a dis.tunce.v ; 1 .. ■ ■•'■"' i . 'JA'nyfrights the' appellants may have tiiider-the substituted contract were exopen -l/y the Court of Ap- : ,w'er'e aiiy .rights,; which 'til^'rC^pgnflent-• (Mrs;.; Hakaraia) may tlie'tounterjclaimi .;■ ■ '^«Kr?s^|^Jy6rß , ''a'p'pearcd • for the appellants {(Harris and -Co;.'., and- Hestell), while:Mft As 6ray,':K-0./twith him Mr. •6'. H.-'FfilPappearecl for the respondent (Jlrs/'Hlilcaraia)'. v" '' ' & - .. ■ ■ ■■ , "an E>CCHAN(iE OF LAND. CLAIM FOR SPECIFIC PERFORMANCE. - Law questions, involved in the case of Arthur joKnston Huston, of Hamilton; v; Frederick Edivin Bishop Lovelock, of Jsureka,' wesr Hainil.ton, Wore .argued before tho Court of Appeal in April last, ■ and wereuinswered in a judgment of' the -Court-read) by the Chief Justice (Sir Robert ,Stqut\ yesterday afternoon'.'; 'iTho claifii was for specific performance of a contract by Lovelock to purchase certain lands, arid in return to: soil certain other lands. In-default" of specific performance tho plaintiif (Huston) cliiimcd £2000 damages. The transaction ■ contemplated was really .ono for tlio exchange of the lands mentioned. The defence was that Huston had misrepresented to Lovelock the character and value of Ills (Huston's) land.

Tlio pnso .lmd been removed .to .'the Court of Appeal for argument. At. the hearing Mr.'.J. R. Howl, K.C., of Auckland', with Mr; IV MacDiarmid,. of Hamilton, appeared for Huston, wjiile Dr.-H. D. flamford, of Auckland, with Mr. J. 15. Johnston, of Auckland, appeared for Lovelock. . , • Tlio Court decided that. Huston was entitled to specific performance, and.the case was remitted to the Supreme Court to enter judgment "accordingly, and to sc.ttlo the question of costs in the action. Costs in tlio Court of Appeal were allowed Huston on the.highest scale. Mr. P. B. Cooke, who received .judgment'on bohalf of defendant's counsel, mentioned that ho had been instructed to applv conditional leave to appeal to the Privy Council. Tlio motion was allowed to stand over..-, ~