LAW REPORTS

Dominion, Volume 8, Issue 2318, 27 November 1914, Page 7

LAW REPORTS

SUPREME COURT WILL OF THE LATE W. H. LEVIN 'APPLICATION FOR SHARE OF CAPITAL. The will of tho late W. H. Levin,-who died in September, 1893, was before His Honour tho Chief Justice (Sir Robert Stout) in the Supremo Court yesterday, when one of the deceased's sons applied for an order directing that his share in tho capital of tho residuary estate should bo paid to him on certain conditions. The matter was brought before the Court in the form of an originating summons. Tho plaintiff was ltobert Lionel Levin, sheepfarmer, cf Taonui. Defendants were cited as follows:—Sir George M'Lean, M.L.C., of Dunedin, A. E. Pearoo, merchant, of Wellington, F. H. D. Bell, solicitor, of Wellington, and Gerald Fitzgerald, civil ongineer, of Wellington, tho four trustees of the Tesiduary estate of deceased; W. F. Levin, sheepfarmer, of Groatford, son of deceased; Elsa Jessie Goreldino Vogel, wife of H. B. Vogel, of Surrey, a daughter of tho deceased; Mona Beatrice Levin, spinster, of Surrey, a daughter of the. deceased;. Amy Levin, widow of deceased, of Surrey; Fanny Fitzgerald, widow, of . Wellington; and Captain Hugh Levin, of Guernsey, a nephew of the deceased. Mr. C. P.'Skerrett, K.C.', with him Mr. G. H. Fell, appeared for R. L. Levin; Mr. M. Myers represented tho trustees; Mr.' H, F. Von Ha&st appeared tor the two daughters of tho deceased: Mr. S. A. Atkinson appeared on behalf of Mrs. Levin and Mrs. Fitz-

Gerald; and Mr. E. F Hadfield on behalf of W. F. Levin and Captain Lovui. From the affidavits before the Court, it appeared that' the income from the property had to be divided as follows: — An annuity of £3000 to be payable to Mrs'. Amy Levin, reducible to £500 If 6he married; an annuity of £100 to Mrs. Fanny Fitzgerald; and subject to such annuities the income was to be held by the trustees for all the children of the deceased who had. attained the age of 21 years or married. The capital of' the estate was under, the provisions of the will to be held upon trust lifter the death or second marriage of Mrs. Amy Levin (a) to set apart a sum of £'2000 for Captain Levin, (b) to set. apart' a fund to provide for the annuity of £100 payable to Mrs. Fanny Fitzgerald; and (c) to divide the whole of the general residuary capital of the estate among the children of the de--ceased in equal shares, the shares of each daughter to be settled. The estate was at presont divided as follows:—Mrs. Vogel £73,420, R. L. Levin £53,423, Miss Levin £73,430, W. F. L'evTn £53,423. : The reason for the difference betwoen the shares of the plaintiff and his brother and those of their two sisters was that the brothers had each been advanced the sum of £20,000 out of the corpus of the estaXo in anticipa--tion of their respective _ shares in the residuary -estate, on which sums they were charged at the ; average rate of in-terest-earned by the estate of the year. The plaintiff (R. L. Levin) had been advised that the cost of administration of the estate "was at least £1230 per annum. Tho mortgage tax payable by the estate amounted to about £800. and there must thorefore bo deducted from the gross income of the ostate' a sum of about £2030 per annum, without considering legal expenses." Tho net income of the estate was thereby reduced to 4.2725 per oent., which it was subemitted was on tho low'side:for mortgage investment. An order 'of the Court was now sought directing the trustees to pay out to R..L. Levin his share in capital of the residuary' ostate, subject to the necessary sum boing retained by tho trustees to pay R. L. Levin's proportion (one-fourth) of the annuities and.- legacy payable under the will. .. . ■■ After hearing legal argument, His Honour reserved decision.

A FAMILY AGREEMENT. In the Supreme Court yesterday morning His Honour tho Chief Justice (Sir Robert ,Stout) delivered reserved judgment in the Wanganui case of George William M'Caul v. Donald Fraser, an action concerning the will of the late Duncan Fraser, farmer, formerly .of Rangitikei. The plaintiff in the astion is a son of tho lato Catherine M'Grogor, who was a. daughter _ of Duncan Fraser, and the' defendant is a son of' the latter. Duncan Fraser died in August, 1879, and loft a will of which the defendant (Donald Eraser)- was executor and trustee: In December,1901, the late Catherine M'Grogor received £100 and signed a deed releasing the defendant (Donald Eraser) from further (liability in his position as trustee. Plaintiff now alleged that this deed was signed without full knowledge of the facts, and prayed that-it should be declared, void. He further asked tho Court to remove the defendant from the position of trustee, to appoint tho Publio Trustee in his place, and to ordor that accounts be taken and tho estate of Duncan Fraser administered under decree of the Supremo Court. ' •The defence set out that the duties of trustee had been faithfully carried out and that tho will of Duncnn Eraser had been read over to the lato Catherine M'Gregor before she became party' to the deed of December, 1901. His Honour, in -the course .of his judgment, expressed the opinion that,. in a case of this kind, where neither fraud nor mistake had been proved, no Court of Equity could set aside | a familv agreement after a great lapse' of time.. Plaintiff .must fail in ..the. suit, and judgment would bo' given for the defendant with costs (as on a claim for £600) according to scale, £16 16s.'; a day for second counsel for two days, together with witnesses' expenses, disbursements, and interlocutory costs. At the hearing Sir John Findlay, K.C., with him Mr. C, B. Collins, of Wanganui, appealed for the plaintiff, while Mr. H. D. Bell, K.C., with him Mr. W. J. Treadwell. of Wangamu, appeared for the defendant.

DIVORCE PETITION. Before His Honour Mr. Justice Edwards and a common jury of twelve yesterday, William Percy Salmon petitioned for dissolution of Ins marriagq with Flora Fanny Salmon on the ground of habitual drunkenness and misconduct. Mr. W. Perry .appeared for the petitioner, while Mr. P. W. Jackson appeared for the respondent. _ From the petitioner's ovidenco it appeared that the parties were married in London on.October 18, 1898, and, after residing there for four years, came to Wellington. There wore three children of the marriage. At the closo of the petitioner's caso, Mr. Jackson submitted that there was no evidence to go to the jury. . His Honour declined to withdraw the Case from the jury, and the hearing will bo resumed this morning.

DECISION RESERVED. Hearing was concluded yesterday of tho civil action, John Eli Ellis v. Stevens and Co., which had boon commenced in the Supreme Court the previous day before His Honour tbo Chief Justice (Sir Robert Stout). Decision was reserved.