COURT OF APPEAL

Dominion, Volume 11, Issue 178, 17 April 1918, Page 6

COURT OF APPEAL

INTERESTING WILL CASE. An interesting matter affecting the interpretation of a will was tiio main point in dispuio in nn appeal heard by the Appeal Court yesterday. The Court comprised the Chief Justice (Sir Kobert Stout), and Their Honours Air. Justice Edwards, Mr. Justice Cooper, Mr. Justice Chapman, and Mr. Justice Sim, and they were asked to decide certain questioiis of law which had been removed from the Supreme Court for interpretation. Tho parties to the action were: Eleanor, (}. S., M. ,1., and E. B. Tarbutt mid Florence B. Donnelly and Mrs. Urethi Qußi'ee, of Wellington (plaintiffs) v. "Alfred Nicholson, Civil Servant, of Auckland, and Frank C. Long, clerk in. holy orders, Napier (defendants) as executors of the will of Patty Maria Nuttall, spinster, of Auckland, deceased. Under ti>e will of Miss Nuttall ono George Tarbutt, ')f Auckland, warehouseman, was bequeathed cortain farming property valued at about .£3200 at Panmure and ,£IOO in ensh. A number of other bequests wore made under the will, including the sum of JGSOO to tho Anglican Church authorities at Auckland. The residue of the estate was willed to decensod's sister, Rachel Jano Bradshaw. of Capo Colony, and Elizabeth Ann Nicholson, of Auckland, widow. George Tarbutt predeceased testator, dying on January 7,'191C. Testator -herself died ten days later. In tho course of the will it was set out that "should any of the beneficiaries named under the will" predecease testator leaving issue living at the time of her death, such issue should receive the benefits which their parents were Jiamcdito receive under the will. There wcro liviii" at the death of George Tarbutt six of his children, who were named as plaintiffs to the action. They applied to the defendants, as executors under the will, fov payment of the legacy of .filOO and for a ' conveyance of |the property. The defendants paid the legacy of .£IOO, but withheld the conveyance of the property, holding that under the ternw of the'will the issue of George Tarbutt, deceased, were not recognisable. The plaintiffs therefore sued for an order conveying the said property to them, and the matter vas now referred to the Court of Appeal. The contention set up on behalf of the defendants was that the next-in-succos-sion clause should bo -limited to the residuary legatees, after which clause it had followed in the will, and had i no reference to "tho clause donning Tarbutt's legacy. Mr. C. P. Skerrett,'K.C, and with him Mr. V. B. Meredith, appeared at the appeal for the plaintiffs, and Mr J. R. Reed, K.C., and with him Mr. W. J. Napier, for the defendants. It was contended by Mr. Skerrett that there was nothing except mere conjecture to justify the presumption that testator had desired tho gift to Tarbutt to lapse should he predecease her. The whole scheme of the will seemed to contemplate that all of tho legacies should be saved from lapsing. Tho Court reserved its decision.