LIFE INCOME PROTECTED

Sun (Auckland), Volume II, Issue 501, 2 November 1928, Page 16

LIFE INCOME PROTECTED

SECURE AGAINST SEIZURE IMPORTANT JUDGMENT That a son’s life Interest in his father’s estate is secure against seizure by a creditor when the will prohibits alienation, has been decided by Mr. Justice Blair in a judgment delivered in the Supreme Court in Auckland. The judgment has been given in such a form as to allow of appeal. The parties concerned were Clarence Alfred Palmer (Mr. Cooper) and Alfred William Wright (Mr. Uren). both residents of Manurewa. In 1925 Palmer sued Wright' for damages on account of a fire which he alleged had been lighted by Wright, and had spread to his property and burned a shed and motor-truck. Palmer was awarded £565 , damages and later obtained a charging order nisi against Wright’s life interest under the will of his father, the late William Thomas Wright, of Pukekohe. Recently he moved to have the order made absolute, and the motion was resisted by Wright on the ground that by tire terms of the will no valid charge of the kind could be made. At the hearing it was stated that Wright, sen., who had been a stern disciplinarian, had bequeathed only life interests to his children. The will, made in 1909, provided that the income from the residuary estate should be divided equally among the testators, four sons and two daughters, during their respective lifetimes, and that it should be paid “so that they shall not, nor shall any of them have power to anticipate the same."

His Honour stated the question was not whether the restraint was valid but whether the use of the words quoted was a sufficient exercise by the testator of his power under section 24 of the Property Law Act, 1908, to prevent an execution creditor from Se T^r ln& any °f the children’s income. Mr. Cocker maintained that the words power to anticipate the same,” meant a prohibition only against voluntary alienation. His Honour said a PPears to me that section 24 authorises a father or grandfather to do for a son or grandson that which formerly could be validly done for the benefit only of a married woman. If the restraint imposed protected a married woman’s share, then since the passing of section 24 a like restraint will protect a son’s share.” The charging order nisi was set aside with costs against the plaintiff