SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXII, Issue 5035, 14 May 1877, Page 3

SUPREME COURT—IN BANCO.

Saturday, May 12. • (Before their Honors the Chief Justice and Mr. Justice Eiehmond.) Ilf THE MATTER OK THE CLIVE HIGHWAY BOARD. Mr, Travers moved for a rule nisi calling upon Frederick Sutton andothers to show pause why a writ of quo KcivvaiUo should not issue, calling upon,them to show by what authority they had taken upon themselves the functions and powers of members of the Clive Highway Board, Hawke's Bay. It seemed the motion was made at the instance of a member of the Board, one Lascelles; and his affidavit was read setting forth a number of facts, the effect of which was to show that the persons against whom the rule was asked for had been elected or gone through the form of election some months in anticipation of the ordinary time for election, although objection was taken to the proceeding at the time of its occurrence. These gentlemen were now acting as if they had been duly and legally elected, and they proposed to levy rates on the people of the district. The Court, after considering the affidavit, granted the rule as prayed. HiantOND V. THE PUBLIC TRUSTEE. The Chief Justice delivered the judgment of the Court in this matter as follows ; This was a special case stated for the opinion of the Court under the 441st section of the General Hide?. The question for the opinion of the Court is, whether a sum of money received by the defendant as administrator of the goods of one Robert Lowe, who died intestate, leaving a widow and children, such money having been received under a policy of life insurance effected by the deceased on his own life with an insurance company, is assets for the payment of creditors or not ; and it turns upon the construction to be put upon the 4Cth section of the Life Insurance Companies Act, 1873. We think that the provision in the 46th section—by which it is enacted, that the property and interest of the person who effects such a poiicj as that now in question, “ shall not be seized or levied upon by or under the processof any Court whatever”—must be taken to mean that such policy, or the moneys payable thereunder, shall not be made available by the process of any Court for the payment of the debts of or other claims against the assured or his personal representatives. The language is very general. The process intended is no doubt in respect of debts of or claims against the assured or his personal representative. This is nut so stated ; but follows from the fact that it is only in respect of such debts or claims that, but for the exemption, the policy could be seized, or the moneys applied. The process intended is not expressed to be inan action againstthe assured, nor is there anythin" limiting the provision to process issued during his life. The language is sufficiently general to apply not only to the case of process in a suit against the assured, but also to the case of process in an action against his personal representatives, who succeed to the legal ownership of the policy after the death of the assured. There is nothing in the 4Gth section which shows any intention that the provision should have any limitation put upon it. If, therefore, neither the policy, nor the money received •thereunder, be seized or levied upon, in any action whatever in respect of claims against the assured, whether the action be against that person during his life or after his death against his administrator, it must have been the intention that such moneys should not be applicable to the payment or satisfaction of such claims, either voluntarily by the administrator and without suit, or compulsorily under the order of a Court of Law; whether such Court enforces its orders by seizure of the moneys, nr by attachment of the person of the administrator. It was contended on behalf of the defendant that the effect of the 4Bth section was not only to protect the policy and the money received thereunder from debts of the intestate, but to create a tru-t for the next of kin. It was admitted that the trust was capable of being frustrated by assignment of the policy by the assured during ins life, but it was argued that it was not defeasible by his will. As we think that the policy is not assets for the payment of debts, by reason of ■ the express exemption in the Act, it is not necessary for the purposes of the present case to decide whether or not such a trust is' 1 created. We nevertheless think it well to state that it is our opinion that no such trust is created ; and that the assured in such a case may dispose of his interest in the policy by his will, as he may by assignment during his life.

The provision that the protection against seizure shall “accrue for the benefit only of the personal representative of the assured’' was relied upon as establishing such a trust. But the term “ personal representative of a deceased person ordinarily menus “the executor or administrator ” of such person, and that meaning must here be attributed to it, there being nothing in the context which shows that the Legislature used the term in other than its ordinary sense. The same expression is used in the earlier part of the same section in its ordinary sense. In other sections of the Act where a trust ■was intended to be created, express language is used for the purpose. The effect, therefore, of the 4Gth section seems to be that, subject to the conditions mentioned in the section, a life policy is not liable to claims against the assured or the personal representatives of the assured, but that the assured may dispose of the same by his will, and if he dies intestate as to the policy it will be distributable by the executors, as administrators, amongst the next of kin.

Judgment is therefore for the defendant. Hr. Travers, who appeared for plaintiff, made an imjuiry as to costs, and said lie certainly thought that in a case like this the

whole of the costs should not be thrown upon the plaintiff. Plaintiff had acted for the whole of the creditors, the majority of whom were probably just as pleased as defendant with the judgment; but nevertheless it was a case in which it was necessary that the ruling of the Court should be given, and it was scarcely fair that the whole of the costs should fall upon them. Mr. Hart, who appeared for the Public Trustee, reminded his learned friend that defendant was a public officer who had no funds out of which to pay the costs. The Court saw no reason why the ordinary course should not be followed, viz., that costs should fall upon the unsuccessful party. The Court thou adjourned.