SUPREME COURT

Dominion, Volume 8, Issue 2339, 22 December 1914, Page 9

SUPREME COURT

MOTION TO SET ASIDE A SALE AND TRANSFER A motion for an order to eat aside as void a sale and transfer of a' bankrupt's property was heard in the Supremo Court yesterday before His Honour the Chief Justice (Sir Robert Stout). The proceedings were brought under the 1 Bankruptcy Act, 1908, by Mr. C. W. Nielsen, counsel for the Official Assignee iu Bankruptcy, of the property of Alexander Thomas >I'William, livory stablekeeper, of Cambridge Terrace, Wellington. Tha actual relief sought was "an order setting aside as void a sale and transfer from the bankrupt to Frank Bolfa, hairdresser, of Wellington, dated February 9, 1814, and a bailment from Frank Botfa to the bankrupt of certain plant and chattels (including tlirco landaus and seven horses) and declaring that the chattels referred to are assets in the bankrupt's,estate. I '"Tho grounds of tho motion were that the sale was not a transfer of property made in good faith,for valuable consideration, but was a fraudulent transfer by tho bankrupt of his property for the purpose of defeating the creditors, that the transaction was carried out for the purpose of preferring Frank Boffa (one cf the creditors), and various other grounds disclosed in tho affidavits of 0. W. Nielsen. and J. M. Ferguson, settler, of Wellington. The affidavit by J. M. Ferguson 6tated, inter alia, that on December 23, 1913, he had commenced an action against M'William to recover tie sum of £149 155., and on February 17 last he had obtained' judgment against M'William for £129 15s. and 12 guineas costs. On April 28 last, M'William was adjudged a bankrupt on Ferguson's petition. M'William, for whom Mr. H. L. Macbell appeared yesterday, raised opposition to the motion, to set aside tho transfer, contending that tho trans-, action with Boffa, was bona fide, and had 'been entered into without any fraudulent intention, and completed before judgment had been delivered in the action brought by Ferguson. After hearing of evidence, tho case was adjourned until this morning; in ordor that the par.ties might have an' opportunity to settle. His Honour suggested that a method of / settling • the difficulty might be tho payment or £50 to JBoffa. who might then transfer the business back and furnish proof of debt for the remainder ojf tho moneys owing to him.

A WILL INTERPRETED. Reserved judgment lias been, delivered by His Honour Mr. Justice Hosk--ing in tho caso of tho Public Trustee v. Alice_ Catherine' Macdonald and others, in which tho Supreme Court had been asked to interpret the will' of the late Alexander Macdonald. Tho testator by his will'declared that the* trustee should hold his residuary moneys and investments "in trust to pay the income thereof to my son and my two daughters in equal shares, and, from and after the decease of all' my children,. to divide the corpus equally among all my grandchildren, who, being sons, shall attain the age of 21 years, and being daughters shall attain that age or marry.", At the date of the death of the testator, he had one son and four daughters. Two of the daughters .at : tly) date of the will, an'd the' questions' for the opinion of the Court were:- (1) For what person or persons and upon what* trusts does the Public' Trustee hojd the income arising from tha residuary estate until tho arrival of the period of distribution of the corpus of the residuary estate P (2) Whether upon any of the persons, who maybe held to be now entitled to share in the income, dying before the arrival of the period of distribution his or., her 6hare of the income accrues to the survivor or survivors (if any) of the persons so. held. ts_ bo 'entitled or. whether such share is undisposed of, pending the arrival of the period of distribution? At the hearing,, Mr. J. W. : Macdonald, with Mr. F. Kelly, appeared for tho Public Trustee, and for the grandohildren, while Mr. J. Maclean appeared for the'children of the deceased.

His Honour held that the income arising from the residuary estate was held by the Public Trustee upon trust to pay income in equal shares to the son and the four daughters, or to such of them as should be living for the time being down to the period of distribution (that was the death of the last survivor of them), 6o that while two or more were living-the income would go to them in equal shares, and the last survivor would get the whole of the income during the period of last survivnlship. ■ An order was made for the cpst9 of the parties to be paid out of tho residuary estato.