WILL CASE

Evening Star, Issue 22147, 30 September 1935, Page 11

WILL CASE

PRWISIOK FOR G RAHIWS HILDREM SUPREME COURT JUDGMENT Judgment was given by His Honour Mr Justice Kennedy this morning in the case in which interpretation was sought of the will of the late William Hoole, waterman, of Dunedin. The plaintiff in the action was, the New Zealand Insurance Company Liniited, and the defendants were James Hoole, shipwright, Melbourne; Wiliam Hoole, carpenter, ' London ; Frank Boole, gentleman, Liverpool ; Thomas Hoole, gentleman, Liverpool; Martha Rushton, married woman, Liverpool; Ethel Cum--mings, marned woman, Dunedin; and Frank C. Hoole, Hoy W. Hoole, George H. Hoole, and Ethel C. Hoole, infants, all of Te Kuiti. ; His Honour’s judgment read:—WU-, Ham Hoole, the testator, died in 1934, . leaving a will, made in 1930,. in which the following disposition appeared “ (b) To hold the residue of my said trust estate upon trust for all or any of my children—James Hoole, William Hoole, Frank Hoole, Thomas Hoole, Ethel Cummings, and Martha Rushton living at my death, and the children or child then living of any then deceased child of mine who attains the age of 21 years if more than one as tenants in common in equal shares, but ro that any grandchildren of mine shall take equally between them only the share which their parent would have taken had he or she lived to attain a vested interest.” „ ' ' In addition to the children named, the testator had a son Christopher Hoole, who died in 1929 before the will was made, leaving children who survived the testator. The question is whether those children are entitled to any share under the will of the deceased. Many cases were cited and I have referred to and carefully considered them all. In the end I have come back to the’ terms of the .will and to_ the ascertainment of the testator’s intention as there disclosed. Reading the will as a-whole, I think his intention is manifested.'and I know of no rule or principle of construction . to prevent that intention being carried-out. There is a gift to named children. Christopher Hoole is not included in the list. There is _ no reference to a class which might include Christopher Hoole if it were assumed that, instead of being dead, he bad continued to live. However long he be assumed to live, he would not take any interest under the will. He could never take a vested interest. This is important. The disposition is to the named children ‘‘ living at my death ” ami “ to the children or child then living of any then deceased child of mine who attain the age of twenty-one years if more than one as tenants in common ia equal shares.” The use of the word “ and ” is significant and it might point to an independent as distinct from a substitutionary gift. But whatever be the precise name to give to the gift to the children of any deceased child, the will goes on to define the quantum or shiire which any grandchild may take under his will, ft runs, “but so that any grandchildren of mine shall take equally between them only the share which their parent would have taken had he or she lived to attain a vested interest. The reference here is not restricted. It is “ any grandchildren of mine. Then we find that these take the share not which a parent would have taken but the share “of their parent. Now it is only the named children who may Eve to attain a vested or any interest. No other child ma\. ■ ingK it fallows tbnt n r *lnkl or c^v^ re of a decesead child will no mtei -

est unless one of his parents is a named child. . , , . It follows from what has been said that the proper answer to the first question is “ No.” The second question need not be answered. The costs of the plaintiff, taxed as between solicitor and client, will be paid out of the estate. I fix counsel’s fee at £5 ss. The costs of counsel for the infant defendants fixed at £lO 10s and disbursements and of counsel for the other defendants fixed at £lO 10s and disbursements will be paid out of the estate. . • _ . At the hearing Mr M. Joel appeared for the plaintiff, Mr J. S. Sinclair as guardian ad litem for the infant children of Christopher Hoole (deceased), and Mr J. M. Paterson for Ethel Cummings (representing the remaining defendants).