DISPUTE OVER WILL

Rotorua Morning Post, Volume 2, Issue 327, 14 September 1932, Page 6

DISPUTE OVER WILL

CLAIM OF SECOND WIFE OF THEATRICAL AGENT. JUDGMENT OF CHIEF JUSTICE. Wellington, Saturday. The disposition of the estate of William Herbert Catterns, commonly known as Bert Royle, theatrical agent, Wellington, deceased, was the subject of a judgment given in the Supreme Court yesterday by the Chief Justice, the Rt. Hon. Sir Michael Myers. By the judgment, the widow receives the income from the estate, subject to a provision made in the will for Kate Royle, the first wife of the testator. The estate, after that provision, is to be distributed by the widow, "according to her sense of justice," among the relatives of testator and his wif'e. Plaintiff was Helen Stewart Catterns, widow, as sole surviving executor and as the widow, and defendant was Emily Agnes Clay, of Wanganui, who was represented on her own behalf and on behalf of the relatives on both sides. His Honour briefly reviewed the facts, which were that testator was twice married. His marriage with his first wife, Kate Royle, was dissolved in 1922 on his own .petition on the ground of separation. With his consent, testator was ordered to pay to Kate Royle alimony at the rate of £3 6s 8d per week, which payments he made regularly down to the date of his death. In November, 1922, testator married plaintiff, who survived him. There was no issue of either of the testator's marriages. Terms of the Will. The will was a short one, said his Honour. After appointing executors, etc., it provided: "I hereby give and bequeath everything I possess in any form whatsoever to my b'eloved wife Helen Stewart Catterns for her life, after which it is to be divided as she by will may direct and according to her sense of justice among her relatives and mine. Further I direct my executors to pay out of the income of my estate the sum of £100 every thirty weeks to Kate Royle during her lifetime." The first question asked was whether plaintiff was absolutely entitled under the will to the whole of testator's estate. Her counsel agreed that it should be answered in the negative. Tho other questions were: — What estate or interest plaintiff takes if she is not absolutely entitled to the whole estate?" and "Do the relatives of testator or of plaintiff talce any estate or interest under the said will?" His Honour said that in his op'inion, on the true construction of the will, testator had shown an intention to make a gift to, or to create a trust in favour of, a class. "I hold that the widow takes a life interest (subject to the rights of Kate Royle)," said his Honour, "with power to divide the estate by will according to her sense of justice among her relatives and the testators, and in so doing to select as the person or persons to whom the estate is to go; and that in default of appointment there would have to be an equal division per capita (subject to the provision for Kate Royle) among her own and testator's statutory next-of-kin to be ascertained as at testator's death as one class/' The Chief Justice proceeded that on the construction of the will the payment to Kate Royle was to be made out of income only. The exeeutrix, who happened to be the widow, was not entitled to use for her own occupation and benefit properties or assets belonging to the estate which could be used to produce income, and so deprive Kate Royle of the provision made for her by the testator. Referring to the income from the estate, his Honour said: "The testator clearly contemplated, I think, that the income would be a great deal more than sufficient to satisfy the provision that he made for Kate Royle, and that there would be a surplus which th'e widow was to have. His ealculations have no doubt been upset by the widespread depression, whereby all properties have been seriously reduced in value and all incomes in amount." His Honour said he believed the answers given would enable the parties concerned to decide as to their futux*e action.