A CURIOUS QUESTION OF PROBATE.

Evening Star, Issue 4092, 7 April 1876, Page 4

A CURIOUS QUESTION OF PROBATE.

{Auckland WeeMy News, March. 25.)

“Some men are bom Methodists, some Presbyterians, some Baptists, and they could not well be anything else,” said the Hon. S. I). Hastings, in a speech at the formal opening of the Congregational Church, Beresford street. It would appear, from a case which came before his Honor Mr JusticeGillies,- on Wednesday, that the same remark is equally applicable to some who belong to the ‘‘United Church of England and Ireland.” A settler at Onehunga, named M'Cutcheon, who was the owner of some real and personal estate, did what most prudent men similarly situated would do—viz., made a will. Being apparently of a far-seeing turn of mind, he sought in Tiis last will and testament to provide for a variety of possible contingencies, and, being also a staunch Protestant, as such strongly opposed to the “ damnable heresies of the Church of Rome,” he determined to prevent the possibility | of the nams of M‘Cutcheon being sullied by any apostacy on the part of his descendants. With this view he inserted a proviso in his will to the effect that his legatees (two daughters) should only enjoy the proceeds of the estate so long as they continued in the bosom of the fate of the McCutcheons, that if either of them entered into the hymeneal state with a Roman Catholic, she should forfeit all the benefits under the will, and, furthermore, if both exhibited such a predeliction for heresy as to prefer Roman Catholic husbands to the orthodox article, they should be debarred from all participation in the estate, which should be given over to some charitable purpose, according to the discretion of the executors. The testator, however, in his zeal for the “ United Church of England and Ireland” appears to have overlooked some other contingencies, and in consequence the aid of two gentlemen learned in the law, and a judge of the Supreme Court, has been called in to interpret the testator’s real intentions as to the ultimate destination of the property. Both daughters having married staunch Protestants, the soul of M‘Cutcheon may rest in peace, but the question now to be settled is this : did the testator mean that the daughters should only enjoy the annual proceeds of the estate during their lives, or that as soon as they were married in the orthodox manner the entire estate should be equally divided between them! Mr Justice Gillies thinks that at the first blush the former interpretation should be put upon the will, seeing that there is still a possibility, however remote, of one or both of the daughters being inveigled into Popery before death. Upon further consideration of the case, his Honor is reported to have said his opinion, upon a careful perusal of the will, was that the two daughters, Sarah and Mary, have only a life interest in the property. But as there appeared to be no direct gift, except to the trustee, it would be impossible for the Court to give any decision at present which might not affect the interest of the heir unless all the children were brought in as parties. For although the two daughters named in the will have each four children, yet the four children of either might die, and that one would still die without issue, and her share go to the other. It is not impossible that the two might still die without issue, 'and the position become something in the nature of an intestacy where the question would turn exclusively upon the reights of the heir. The question raised is a very important one, and the subject matter so very intricate, that he should like to reserve it for the decision of the Court above, and he ordered the declaration to be amended so as to make all the surviving children of the testator parties to the proceedings. The idea which the late Mr M‘Cutcheon hit upon is by no means new, but it shows that even in these days there is a more intimate connection between the vanities of this world and the preparations for the next than some couleur de rose theologians would have us believe. In these days, when so many ingenious methods have been invented of insuring all the risks that flesh is heir to, why has not someone started a “ Protes-tant-decendants Insurance Societv V We throw out the idea for what it may be worth.