AN UNUSUAL CASE.

Stratford Evening Post, Volume XXIX, Issue 131, 26 July 1911, Page 7

AN UNUSUAL CASE.

NOVEL POINT OF LAW. QUESTION OF PROBATE. The Appeal Court delivered its reserved judgment on Thursday on an application, heard on 10 th May, fo»probate of what was submitted to be the will of James McDonald, lute of Hamilton, labourer, who di \1 on Oth October, 190 G, leaving an estate of the value of £l6O odd. The Court consisted of the Chief Justice (Sir Robert Stout), and Justice Denniston, Edwards, Chapman and Sim. Mr J. W. Macdonald represented the Public Trustee. The deceased died in the Hamilton hospital, having been an inmate of the Waikato Old Men’s Home. This application invoives a question, the first of its kind in New Zealand, and cm all fours with no previous case in England—namely, whether a document containing within itself a power of attorney and testamentary direction can be regarded in whole or in part as a will. This document ,dated 2nd May, 1902, and executed in conformity with the Will Act, 1837, was headed as a deed poll -—the usual form for powers of attorney—and appointed the Rev. Henry Mason, of Huatly, William Vant, of Ngaruawahia, and Edward Hall, of the came place, to he his attorneys to sell all his property, with full general powers, and apply the proceeds for bis benefit, and if any surplus were in their hands to expend and apply a competent part in and about hi,-' funeral and testamentary expenses, and to pay the balance to his brother, Thomas M‘ Donald, and if lie should lie dead, to pay the balance for the benefit and advantage of the Episcopal and Wesleyan Churches in Ngaruawahia in equal shares. Deceased’ further directed the powers to bo irrevocable.

The attorneys never acted under this document, Mr Hull predeceased the deceased, and at the death of deceased his estate consisted oi' land and cash in the "Savings Bank. Deceased’s brother, Thomas AS‘Donald, predeceased him, and the next of kin are not known. The attorneys, on the assumption that they were executors, according to the tenor, appointed the Public Trustee in their place. Application was made on behalf of the Public Trustee to his Honour, Mr Justice Cooper, for a grant of probate, but after bearing argument, bo reserved the whole question for argument before the Full Court. Justices Denniston, Edwards, Chapman, and Bim adopted the aigument of Mr M acdonald, and gave judgment that probate could be granted. The Chief Justice held the contrary