SUPREME COURT.

Taranaki Daily News, 7 February 1918, Page 3

SUPREME COURT.

' YESTERDAY'S PROCEEDINGS. (liefore His Honor Mr. Justice Edwards) The sittings of the Supreme Court at New Plymouth were continued yesterday before his Honor Mr. Justice Edwards. INTERPRETATION OF A WILL. (i. 11. Bell (Air J. C. Nicholson) >. M. I. Courtenay (Mr. J. If. Quilliam) widow of deceased —an application under an originating Munitions for an order interpreting the will of Win. Courtenay (deceased). Mr. A. H. Johnstone appeared for the pecuniary legatees, and Mr. D. Hutchen represented the residuary legatees. Mr. Nicholson stated that the executors submitted to the order of tire Court. He sot forth the position of the estate at the time of the death of the testator, the assets of which were not sufficient to meet all the legacies in full, and the main question for decision was the. order of priority of the beneficiaries. Other matters turned on the actual wording of the will. Mr. Quilliam submitted that the chief question so far as the widow of deceased was concerned related to the devise of the Niger House property, the mortgages on which were a first charge on the testator's estate. There was also provision for the purchase of an annuity for tlio testator's widow, which should have priority over other legacies. Mr. Quilliam mentioned other pecuniary legacies, after payment of which the residue of the estate was to bo equally divided between Ave legatees specially named. He stated that when the testator appointed his executor it was his undoubted intention that his widow should receive Niger House and the one aero of "land accompanying it, that the psoeutor should pay off all mortgages and band over the property free of all enenmberances. The widow had been deprived of her benefit by the action of a creditor in having the property sold. Mr. Quilliam submitted authorities to show that where no actual expression of intention was made by a testator, it was necessary to discover 'the intention by a reading of the whole ! will. He stated that in the absence of a definitely expressed intention it must be taken that the testator would wisli to do what it was manifestly his duty to do, and first, make provision for hi-: widow. He had stated he "would wish his widow to have Niger House and that she should bequeath the property equally amongst her children," Mr. Quilliam also submitted authorities regarding the widow's claim in respect to the annuity which he claimed was a perpetual annuity. He concluded by stating that the widow was entitled to the value of the Niger House property as at tlie time of the death of the testator, and to the amount necessary for the purchase of the annuity.

Mr. Johnstone said lie could not agree that the refiithie of the estate was'to bs> charged with the mortgages on Niger What lie eonsidered the widow was entitled to was Niger House with the mortgages thereon, with the right to have the mortgages repaid out of the | residue if there was sufficient to do so \1» contended there were three classes of property from which funds could be had to pay the mortgages or other debts. There was the Niner House property there was the fund (if any) for the payment of pecuniary legacies (including the amount for the purchase of an annuity for the widow of the testator) and the residuary estate which in the present case wn« real estate. His submission was that the pecuniary legacies (including'the sum for the purchase of the annuity for Mrs. Courteray) went payable first out of the assets of the estate. He cited authorities to show that pecuniary legacies were not to be charged with the debts of the testator. His Honor said he did not think any business man could come to nny other conclusion than that the testator intended first to make provision for his widow, by providing her with a home and an income. Mr Hutchen admitted the pecuniary legatees (including Mrs. Couitenay as an annuitant under the will) had priority over the residuary legatees, but that they were equally liable with the residuary legatees to share in the payment of debts. He said in the present ease there was no personal property in the estate which consisted of real estate. DeW< had been paid and they must have been paid out of reality. Ho also claimed that although Niger House was a specific devise, it was liable with the residuary devises for share in the payment of debts, citing authorities in support of both contentions. Decision was reserved. ANOTHER INTERPRETATION CASE i Ada Sarah Sole (Mr. Quilliam) v. Henry Ward and others.—An order under an originating summons for the interpretion of the will of Joe Ward (deceased). Mr. Johnstone appeared for Sidney Arthur Ward, and Mr. Hutchen represented all the defendants except Sidney Arthur Ward. Mr. Quilliam said there were some small matters in dispute, and contented himself with referring to the clauses of the will affecting the disputes, and ask, mg for an interpretation of them. ] Mr. Johnstone said the matter to be decided was what was to become of the share of the estate bequeathed to Sidney I Arthur Ward. A clause in the will provided that if any of the legatees under the will became bankrupt before the filial distribution of the property, which was fixed to take place within two yearn from the death of the testator's w'idow the amount of the legacy to such beneficiary should pass to the children of such legatee. Mr. Johnstone submitted that as Sidney Arthur Ward became bankrupt before the final distribution of the estate, his final share under the will should go to his children. Judgments were cited to support the contention that! a bankrupt could not bo said to owe a! debt after bankruptcy. The sum of £4S3 had been paid by the executors in the estate to the National Bank to settle a 1 guarantee given by the testator on behalf of Sidney Ward. A lengthy argument ensued as to whether in consequence of Sidney Ward's bankruptcy, he actually owed that amount to the estate and whether his share under the will passed to the Official Assignee, to the brothers and sisters, or to Sidney Ward's children. Mr. Hutchen contended that Sidney Ward's share of the estate, as between his children, was vested in the Official Assignee, as he had been adjudged a bankrupt on February (i, 1910. He also cited authorities to support his contention. Judgment was reserved. IN DIVORCE, I In the divorce suit Ellen. McCracken (Mr. Quilliam) v. John McCracken, partly heard at last sitting of the Court, evidewe WW given *Bc*Wi^-.!Stelwl».^«>'

tli'' oiled Unit I'i'sjiuiiili'ul liail been living willi another woman al Whakataue, anil lliat lie admitted being the father of three children of which the woman referred to was the mother. His Honor granted a decree nisi, to be made absolute in six months. Petitioner was granted the custody of the children. Costs were allowed on the highest scale. , Louisa Mary Pearson (Mr. D. Hutchen) petitioned for a divorce from Robert Pearson on the grounds o'f his failure to support her. Petitioner in evidence said respondent had served a term ol six months' imprisonment for failing to obey n maintenance order made in her favor. She had made an agreement to accept a ■siiii] of money in lieu of maintenance money, hut lion-' of that money had been paid. .She had had two children by respondent, one of whom had died. Since she left her husband some nine years ago she had received no support from him, and had maintained herself and her child by her own work. Corroborative evidence was given by Emily Grant, whose husband was a brother of petitioner. •His Honor granted a decree nisi, to be made absolute in six months, and also allowed petitioner the custody of the child. Costs on the lowest scale weue allowed.