CASE HEARD BEFORE COURT OF APPEAL

Southland Times, Issue 24234, 18 September 1940, Page 3

CASE HEARD BEFORE COURT OF APPEAL

PAYMENT OF INSURANCE AFTER PROBATE (United Press Association) WELLINGTON, September 17. The Court of Appeal reserved its decision today in the case of the A.M.P. Society versus the Public Trustee. The case concerns the payment of the life insurance on William Alfred Joseph Suiter Montgomery, a baker, who disappeared while on his round at Ngatea, near 'Thames, on ; February 3, 1936. Montgomery’s van was found near a wharf on the Piako river, but no trace of Montgomery has since been discovered. ’

’ The Public Trustee, as holder of Montgomery’s will, dated 1925, applied in June last year to the Supreme Court for ,an order granting leave to swear the death of the missing man so that probate- could be granted and the estate administered. The application was opposed'by the A.M.P. Society, the Colonial Mutual Life Assurance Company and’ the State 'Fire Office, in ■ which Montgomery’s -life was insured for a total of £3OOO. Mr Justice Johnston gave leave to swear death, at the same time pointing out:that the insurance companies could defend the proceedings on the policy on the grounds that there was no evidence of death.

Mr T. Byrne, of the Public Trust, arguing the case for the respondent, contended that the law as to the effect of the grant of probate made pursuant to an order giving leave to sweardeath was; the same in New Zealand as England. The Court should apply the same test in determining whether or not the facts justified an order to swear death. '

Mr Byrne contended that the circumstances surrounding Montgomery’s disappearance were Such as to make death the only reasonable inference. The only other explanation was that Montgomery had voluntarily abandoned his wife and family. Such abandonment would be a wrongful act on Montgomery’s part and would ndt lightly be presumed by the Court. Decision was reserved.