COURT OF APPEAL.

New Zealand Times, Volume XXX, Issue 4422, 22 May 1875, Page 3

COURT OF APPEAL.

Friday, May 21. BRIDGE AND ANOTHER V. FOREMAN,

This was a special case, removed by consent from the Supreme Court, Wellington, into the Court of Appeal. The case arose out of the difficulty of construing the will of the late Stephen Foreman, of Wanganui; which difficulty led to a conflict of authority between the widow of the testator and the trustees under his will, who applied for an injunction to prevent Mrs. Foreman interfering in the management of the estate.

Mr. Hutchison appeared for the trustees ; Mr. Travers for Mrs. Foreman.

'Various sections of the will were conflicting in their terms, but the portion to which the argument was mainly directed was the following :—“ This is the last will and testament of me, Stephen Foreman, of the Grange farm, near Wangamii, former. I give, devise, and bequeath unto James Bridge, of Wanganui, salesman, and John Morgan, of the same place, fanner, all my real and personal estate, whatsoever and wheresoever, upon trust, to set apart such part of my personal estate as they shall find necessary, and devote the same—subject as hereinafter mentioned to the liquidation of the necessary expenses in and about the carrying on and managing of my farm, consisting of the Grange and certain land adjoining it recently purchased by me from Harry Macdonald. And further to hold my said real and personal estate upon trust to permit my dear wife,' Mary Foreman, to occupy the same, and to receive the rents and profits and proceeds arising therefrom for her fife, or so long as she shall remain my widow aud unmarried. Subject nevertheless to the trusts herein contained for the purpose of purchasing Grange farm. I direct my trustees, out of my personal estate, and if they shall find it necessary, but not otherwise, by the sale of certain of my real estate (not being part of my farm), which I empower them to sell for that purpose, to purchase the fee-simple of the Grange farm so soon as they can conveniently do so.” Mr. Hutchison, in opening the case, said the argument turned chiefly upon the interpretation to be placed upon the word “occupy,” which he contended, taking the context into consideration, meant that Mrs. Foreman was to he provided with a residence on the farm, but did not in any sense invest her with the management. The trustees were not ambitious to retain the management of the estate. They were quite willing to be relieved of it, and would be quite content to accept the opinion of the Court upon the matter; but still he felt bound to contend that the intention of the testator was, taking the language of the will, that Mrs. Foreman should occupy the farm under the supervision of the trustees. To his mind there was little doubt of that, because the clause which gave the widow the right to occupy was inconsistent with the previous direction that the trustees should manage the estate. They had managed it for six years, and now the farm was sought to he taken out of their hands by a lady Mr Justice Johnston : And a stalwart son, whose interest it is to make the estate valuable. Besides, there is much less likelihood of collision and discomfsrt if the widow has the management. Mr. Hutchison : But the trustees, in pursuance of the trust committed to them, have incurred an overdraft of £2OO, and there may be no more land to sell to liquidate that sum. Mr. Justice Johnston ; Then if they have sold all the land and are £2OO in debt their management must have been very bad. Mr. Hutchison ; Your Honor must consider that they have acquired the freehold of the Grange farm, as directed by the will. They therefore have not only the estate—they have a debt incurred in purchasing a portion of that estate. . A long argument ensued upon the legal bearing of the question, during which Mr. Hutchison quoted the case Whittem v. Lamb, 12 M. and W. 813 ; and Kirkman v. Booth, 11 Beavan’s Reports, 280 ; to show that unless the direction was clear and explicit that a trade should be carried on, the trustees were not authorised to carry it on or to permit it to be carried on, the language of the Master of the Rolls' in the latter case being this “ The Court cannot act on a mere conjecture, and I think it is here considered to be a rule that admits of no exception, that to authorise execu.tors to carry on a trade, the property of a testator which they hold in trust, there ought to be a most distinct and positive authority aud direction given by the will for that purpose.” Mr. Justice Johnston considered the latter case strongly in point against Mr. Hutchison. Mr. Travers said he had intended to cite the same case himself. The Chief Justice said the Court would not call upon him to argue the case, but would take his authorities. Mr. Travers said be understood the contention of -the other side to be that tlm term “ occupy ” gave the widow a bare residence on the estate. As opposed to that interpretation he would refer to the Court to “Jarman on Wills,” p. 757 ; Whittem v. Lamb, already referred to as being in Meeson and Welsby ; Rubbeth and Squire, 19 Beav., p. 70 ; Stone v. Parker, 29 D.J.Q.B. In the latter case there was personal estate, but it was held that the word “ occupy” did not carry the full import which it otherwise would, because there were other words in the will which restricted its meaning. Then there was another case, Mcl.aren v. Stenton, 27 D.J, p. H2, in which it was held that the word “occupy” had a more limited construction ; hut in Rubbeth and Squire, which was also reported in i Do Gex and Jones, the Lord Chancellor said the words relied on gave a clear interest to the objects of the devise for their lives. In this case Mrs. Foreman was not likely to injure the property. On the contrary, she had consented to a reduction from her income^ to make it more valuable to her children. The testator himself seemed to desire that the estate should come into the possession of the son, and that his wife should have an equitable interest in it during her lifetime, with actual management subject to the control of the trustees, who were to see that she did not improperly deal with it. The Chief Justice, in giving his decision, said ; I think the intention _ of the testator was that the trustees should in the first place exercise their judgment as to what portion of the personal estate would bo required for beneficially carrying on the farm. It seems also to have been intended by the testator that after they had done that they should take into consideration what arrangement they should make for acquiring the freehold of Grange farm. Then the testator intended that his wife should have the use and occupation of all his personal estate, except so much as was to bo applied to the purchase of the freehold estate. It seems to be pretty clear that the testator intended that his wife should have the use and occupation of it, and not that the trustees should have power to control her in the management of the farm. She is responsible to the trustees, who represent and protect the interests of the children ; she is responsible for injury to the stock ; and she is responsible for carrying on the farm properly. At the same time I do not seo that she is bound to account to them, as an agent, for the mode in which sho carries on the management of the estate, in any other manner

than she would he bound to account to this Court as an agent for life. Mr. Justice Johnston ; I consider the use of the word “ occupy” in this will as sufficient to trive, in its time construction, an equitable interest for life, including of necessity power of management, unless the provision that the trustees shall set aside a portion of the personality, in order to liquidate the coat of management, necessarily gives to them the exclusive right of management, and I think such an intention on the part of the testator is by no means sufficiently expressed within the doctrine laid down in Kirkman v. Booth. The injunctionwas, therefore, refused ; costs on both sides to be paid, by agreement, out of the estate. The Court then adjourned till Monday.