ONEWHERO.

Pukekohe & Waiuku Times, Volume 5, Issue 228, 21 November 1916, Page 3

ONEWHERO.

A LEGACY TANGLE.

SUPREME COURT ACTION

A case was argued before Mr Justice Hosking, at the Supreme Court yesterday, in which the plaintiff, Catherine Cathcart (Mr M. G. McGregor), wife of John Cathcart, farmer, of Onewhero, claimed a sum of £75 out of the estate of the late Laurence Geraghty, the defendants being John Edmund Geraghty, of Onewhero, and Laurence Geraghty, of Manurewa, for whom Mr H. H. Ostler, instructed by Mr H. J. Brewer, appeared. The facts of the case, which were admitted by both counsel, were that Laurence Geraghty, of Onehunga, made a will dated September 12, 1889, in which he bequeated to his nephew, also named Laurence Geraghty, an allotment in the village of Onehunga for the term of his natural life, the property to revert at his death to the plaintiff, then Catherine Geraghty, daughter of Laurence Geraghty, the younger. On June 20th, 1904, the house on the land in question, and in which Laurence Geraghty the elder was living at the time, took fire, and was practically destroyed. After the fire the body of the occupant was found on the floor very much charred He was at the time 90 years of age, and had been living alone in the house, which had been insured in. two different insurance companies for £75 each. Both companies declined to pay the amount, but ultimately each agreed to pay £37 10s to Laurence Geraghty the younger, who was executor under his uncle's will. In August, 1904, the iusurance money, amounting to J375, was paid to Laurence Geraghty the younger. In 1907 this executor asked his daughter to join in the sale of the land in question, which she agreed to do, and instead of waiting till her father's death, she accordingly received the purchase money of the land, being paid about £3OO after the sale of the land. At this time no mention was made of the insurance money previously received by her father. On April 18th, 1915, Laurence Geraghty the younger died, and in his will, dated the same date, appointed the two defendants as his executors. Laurence Geraghty the younger never paid to the plaintiff the £75 fire insurance money, and claim for the amount was accordingly made against his estate. In the course of argument, plaintiff's counsel submitted that by the will of Laurence Geraghty the elder the house on the land at Onehunga was, after the death of Laurence Geraghty the younger, to revert to the latter's daughter, the plaintiff. He submitted, therefore, that as the house was burnt down the fire insurance money should rightfully go to her in lieu of the house.

His Honor remarked that it seemed to be a question whether the fire occurred before the death of Laurence Geraghty the elder or after his death. If it occurred before, the insurance money would, of course, go into the residuary estate, and as the residue of the estate of Laurence Geraghty the elder was bequeathed to Laurence Geraghty the younger, whereas the house and land were given to him during his lifetime only, the insurance would therefore become a part of his personal estate. Mr Ostler, for the defence, argued that the fire took place before the death of Laurence Geraghty the elder, and that therefore the insurance money became part of the residuary estate, and went to Laurence Geraghty the younger. He further submitted that plaintiff had the right to demand the reerection of the house, but that she had omitted to do so. He contended that the onus lay on the plaintiff to prove that the man died before the property was changed from realty to personalty by the fire. He contended also that by her bargain with her father the plaintiff had got the whole of the estate eight years before she was entitled to it, and that the value of the interest she received exceeded £75.

His Honor remarked that plaintiff received £3OO, interest on which for eight years at 5 per cent would be £l2O. But there was nothing to show that the transaction was a compromise.

Mr Ostler : No ; but- the fact remains that she never mentioned the matter for over eight years, until after her father died. She can only recover the amount on the basis that it is realty, and she must show, therefore, that the house was burned down after the old man's death. Counsel contended that to kill the man the fire must have already progressed so far that the house was potentially a total loss. Counsel contended that if plaintiffs were entitled to the £75 then the executors were entitled to demand interest for eight yoars on the £275 she had roceived. His Honor : But that was the result of a bargain by her fathoi'.

Mr Ostler : Yes, but there do not seem to bo many rnoritu in tho case.

Mr McGregor contended that it was only after tho tire was ended that the claim actually arose. Both counsel quoted extensively from authorities, his Honor, after hearing argument resorving judgment.