INTERPRETATION OF WILL

Hawke's Bay Herald-Tribune, Issue 39, 2 March 1937, Page 8

INTERPRETATION OF WILL

Case in Supreme Court at Napier GAVIN PEACOCK'S ESTATE That a sum exceedmg £2000, part of a legacy in the will of the late Mr Gavin Peacock, sheepfarmer, of Puketapu, should be paid to the National Bank in payment of a debt, is ' the effect of a decision reached by Mr Justice Ostler in the Supreme Court at Napier yesterday. He found in favour of the National Bank as one of the defendants in . an action brought by .Tulius Winifred Sandtmann, public acCountant, of Napier, as trustee of GavinPeacock 's will, for an interpretation of a clause in the will. Tlie question at issue revolved round the meaning of a phrase, "at any time of division," and it was contended that the interpretation of this phrase would determine whether the money involved should go to the National Bank or whether it should be distributed among the children of Mrs Eveline Uato, a daughter of the late Ellen " Peacock, who was the wife of the deceased. ' The parties were the trustees, represented by Mr L. W. Willis, the National Bank, assignee of Mrs Cato's sliare, represented by Mr A. L. Martin; ancl tho children of Mrs Cato, represented by Mr H. W. Wheaton, of Auckland, Mr Willis submitted that the question submitted to his Honour referreci to what could most conveniently be cabed "Eveline Uato's share" in' the testator's estate. Eveline Cato was the daughter of .the testator, Gavin Peacock.

The testator left eurviving Tiiru his wife., Ellen Peacock, and six children, Mr Willis continued. One child predeceased the widow, leaving no issue, and therefore took no share in tne estate, which became divisible into five equal parts. There was no question arising as to four of the five parts, but the matter at issue concerned the fifth part — Mrs Cato's share. "Ellen Peacock died ou October 28, 1927, and Eveline Cato, after her mother's death) mortgaged her share in the estate to the National Bank, onu of the first defendants," Mr Willis said. "The debt to the bank exceeds the value of Mrs Cato 's share in the estate. Eveline Cato was adjudicated bankrup.t on March 28, 1935, and she died in 1936, leaving four children— the second defendants. At the time of Mrs Cato's death the greater part of the corpns of the estate had not been distributed,." During Mrs Cato's lifetime, counsel continued, certain advances had been made to her under the powers in the will, and her share in sUch capital as had been distributed had been appropriated towaTds repayment of her advances. The will directed that the trustees should divide the whole of tha estate equally among the surviving children on the death of the widow. In the latter half of this clause appeared the words, "And in the event of any of my children predeceasing their mother or being deceased at any time of division of the trust funds and leaving lawful issue." The question was, said Mr Willis. what was meant by "at any time. oi' division"? If it meant the "notional" division — to be made on the death of Ellen Peacock — Eveline Cato had a vested share, as she was living when her, motlier died, and her share went to the bank. If it meant the time of actual division, Mrs Cato was now deceased, and the actual distribution had yet to be made. On that construction Mrs Cato's share went to h'er children. The whole position rested on thd meaning of the word "any," couusel said.