WILLS CASES.

Taranaki Daily News, 11 April 1919, Page 7

WILLS CASES.

JUDGMENTS OP JUSTICE EDWARDS Two belated Supreme Court judgments concerning the interpretation of wills, which are regarded as Important in view of their ruling: on certain points raised, were recently delivered by his Honor Justice Sir Bassett Jidwards. The two originating summonses concerned were heard at New Plymouth in February, 1918. BELL v. COURTNEY AND OTHERS The case of George Bell v. Marie Isabel Courtney and others was on originating summons taken- out by the executor of the will of William Courtney, deceased, to determine several questions arising out of that will. The will, which was dated Niger House. New Ply; mouth, December 2i), UJUti, said, in one part: "1 wish my wife, Marie I. Courtney, to receive Mger House and the whole of-the land belonging to it, being a little under one acre and a half having frontage to Pendarves and JUiot Streets, the executors to pay off all mortgages on said property and to hand It over tree of all encumbrances. Also 1 wish them to buy an annuity of £l2O per year, either from tiie Government Life Insurance Department or from the Australian Mutual Provident Societyby pretereuce the former—the same to bo also given to Marie I. Courtney. 1 should wish her to will the property to her four children share and share alike. I would wish my executors to get all mortgagors to give twelve months within which to realise." The will proceeded iu direct that 500 acres of land should be given to Charles Hargrove Courtney (Auck« land), 4«iUQ to Kicliard ivlilllgan Courtney (Bydpey), i,ao to Hester Courtney (Dublin), £IOO to George Woodhouse (Parnell) and In case de ;! th to , ilis wife ' -AJwle Woodhouse; fclOO to George Bell; and that the l-eaidue of the estate should be equally divided between the testator's sisters (Mary Bell, Pltzroy; Thornaslna Dalton, Sydney; Martha Harding Tathape; Kate Courtney, Auckland), and his nelee, Lucy Bell.

Ihe facts were stated In the affidavit of the plaintiff as follows"At the date of the testator s death, on December 2, 1908, the property referred to in his will as Niger House was subject to six mortgages. On January 5, 1910, that property was sold at a sale conducted by the registrar of this court at New Plymouth, under the provisions of The Property Law Act, 1908, at the instance of the second ~^ig a 0 i-. a ,'l- n to '!'? , BeconU mortgagee, at the price of 4,13a0, winch was the sum estimated by him, pursuant to the statute, as the value of the property free from encumbrances. This sum was Insufficient to discharge the mortgage under which the saie was made. The Government valuation of Niger House at the time of the testator s death was £I6BO. The testaeStaie wa ? lnsolve "' at the time of his deatli and until recently has continued to be more or less insolvent. The testator's executors never at any time prior to the sale of nf r „Sr e J ,nort e«ece had any funds of the estate available to discharge the mortgages upon that property. . . The assets of the testator's estate are now sufficient to profit f T" " ec « s9 «y to indemnify the hrn wido , w for V'o loss of Niger House, !!n« ,1. are " lsu fflclent to provide In nnf»!i f h ®, alUn of . £ 185U which would be fequlred for the purchase of an annuity of £l2O hj? h£ nu ™n th i e teStator ' 3 widow as directed hmviit V ' consequently insufficient to provide for payment of that sum and the pecuniary legacies amounting to £520 also directed to be paid by the testator's will.' The property given by the testator by his will to n? i Court ney was sold by the testatoi In his lifetime."

Tiie questions proposed by the originating Judge°are Sffoltv SUt ""' ed " > ,he

(1) With reference to the devise of Nicer mied 6 to hj» Wl ??7' W^ ether the wWow H ' a3 e"titled to be paid out of the estatp nf tha testator cither (a, the value as STe tat. * the death, of the land as if free from encumbrances; or (b) a sum equal to the total ?ho 0U t n L "5 at the dato of ,ho death Of Jt testator under the mortgages the testator d reded should be paid off for the benefit of widow, or (c) any and what sun? by way of recompense for the said devise tltu!7n r h : Wld . ow . ot the t63tator '» entitled to bo paid out of the assets of the testawin nf ?h ! , l ,° other elalnla under 'he 9 am , t , eßtator "j 8 ™lue as oh December ni fhrni'irh « 5 WW'-y known as Niger House fpoa fro , I , at had been op that date free from all encumbrances. (2) With reference to the words "I should wish her to will the property to her four children, share and share alike," whether these any a ' ld What '™ 3t of

'J he c,ll i dren of the testator's widow 5 , Pities to the proceedings and it,? a t nno if decide this question. I think with some doubt that I may emrras' an opinion upon It, but it must be understood that It Is a mere opinion . . nn d win ~7,, bind the persons Interested. With this caution I may say .... that the words In trust in tho nreSelU ° ilSe d ° not create a

(3) Whether the gift of an annuity of £l9O per yoar m favor of Marie Isabel Courtney was an annuity for life or a perpetual annuity Answer : Tito annuity given to the widow Is an annuity tor her life only. (4) Whether the annuitant is ent'tled to be paid In cash the price which the executor would nuity '° Wln ° rder 10 purcha3e 41)6 an-

Answer: The value of the annuity given by the testator to his widow must be ascertained and such' value, so far as the funds available In the estate will suffice (after payment to her of the sum to which in iny answer to the first question I have held her to be entitled in priority) must be paid to her rateably with the pecuniary legacies given by the testator's will. (5) The estate of the testator being Insufficient to pay or provide for all the gifts antf bequests contained in the will, whether the pecuniary legacies are entitled to rank upon a distribution of assets in priority to all or any and what other gifts and bequests contained ln the will.

Answer: The pecuniary legacies are entitled to rank iu priority to the beneficiaries under the gift contained In the testator's Will of the residue of his estate.

(6) If the pecuniary legacies are not entitled to rank in priority to all otHer gifts and bequests, in what order are the respective beneficiaries, namely the pecuniary legatees, the specific devisee (of Niger House) and the resiestate and in what proportion must the deficiency duary donees, entitled to he paid out of the be borne as between the beneficiaries?

Answer: Summing up the results of this judgment, the answer Is that the order of payment of the various sums with which 1 have dealt is: (I) The sum representing the value of Niger House and the whole of the land belonging to it, as defined by the will of the testator; (2) the pecuniary legacies, including therein the sum representing the value of the annuity given to the widow; (3) the residue of the proceeds of the realisation of the testator's estate to the beneficiaries under the gift of the residue of the testator's estate.

Regarding costs, the Judge said that as the amount was small and a widow In poor circumstances was affected, he desired that the solicitors for the parties should confer and agree to moderate costs to be submitted through the registrar for the consideration of the court, and then allowed or modified as the court might seem just and reasonable. The solicitors who appeared in the case were Mr. J. C. Nicholson (for plaintiff), Mr. J. H. Quilliam (for the widow of deceased), Mr. A. H. Johnstone (for the pecuniary legatees), and 1 Mr. D. Hutchen (for the residuary legatees).

SOLE v. WARD AND OTHERS. ' The case of Ada Sarah Sole v. Henry Ward and others was an originating summons to determine questions arising under the will of Joe Ward, deceased. The testator, by his will and codicil thereto appointed his wife (Thlrza Jane Ward), Ad* Sarah Sole (the plaintiff), And Sydney Arthur Ward to be executors and trustees thereof. After the creation of certain trusts and making certain gifts, which did not affect the questiosn to be determined, the testator directed his trustees to hold the part of his estate not specifically devised or bequeathed in trust for sale and conversion and out of the proceeds to pay the sum of £3O to. his grand-daughter, Eva Ware Sole. Then followed a trust in the following words: "And subject to the payment of such legacy to hold my estate upon trust for the following of my j children in equal shares and proportions, viz., Sidney Arthur Ward aud Isabel Clara Ward.' But, before either, of such children shall be entitled to participate and take his or her share in my estate payable at the expiration of two years from tho date of my wife's decease, when my estate is to be finally wound up as aforesaid, he or she shall pay to my trustees, at the time hereinbefore mentioned (namely,.. 23 calendar months from the date of my wtfe!s death) such sum of money as he or she maj* owe 6r be indebted thereto, and failing sUchv paymefit the share of the cliMd so making defayit be divided amongst the rest of jny v ctyldreij not being defaulters, but neither thls'ptovteion or anything contained in.this my will shall relieve my children from liability to to tees such moneys as they or either m ihem may be Indebted to me at my decease Then followed a substantial gift to the children of any of the testator's children who might die in his lifetime, and then came the following clause: "And I hereby will and direct that neitber nor any of my children named in this my wilt shall have power to sell, charge or in any way or manner anticipate or encumber his or her share or expectant share in ray estate (real, landecL and personal) prior to the distribution of my estate, namely, two years from the date of ray wife's death, aud if either or any of my children shall do so or if either or any of them shall become bankrupt he or she respectively shall absolutely forfeit all right and title to share in my estate and his or her share shall at the final distribution go to and be divided equally between such of his or her children ;is may he then living." The main Facts upon which the questions to be determined arose were that Joe Wfird. late of New Plymouth. made a will dated July 21, 1900, and a codicil thereto dated June 2, 1909, appointing executors as already mentioned,, ancf c?'ed on December IS, .190?; the will and codicir were proved on Febtuary 1, 1910; Tliifza Jane Ward (wife of the-testator)- died orii September 17 1915; tho tesyitpr-onyMarch 1,;.1001, had given to the National Bank of New 2ea)and : n suretv 'of £SOO at tW r#Queat of Sidney Arthur Wsfd

tat,- with Indebtedness by the latter qh current account; on April 2, 1913, the executors 'and trustees, pursuant to the conditions of the bond, paid to the bank £483, the amount in, which Sidney Arthur Ward was then indebted to the bank; ou February 6, 1910, Sidney Arthur Ward was on • his own petition adjudged & bankrupt, and at .the time.of the filing of the affidavit , of the plaintiff had not obtained his discharge, the executors had not received any repayment on account of the £SOO 6t Interest in respect of It; at the date fixed for the final distribution of the estate Sidney Arthur Ward had seven children living, all being minors. f The following questions wepe submitted" by th'e originating" summons to the court Wr determination i-*- 1 •

Whether the • phare of Sidney Arthur Ward, In thij residuary estate of (lie deceased had become vested In the Official Assignee In bajilcruptoy, ot the property bt iSldiiijy Arthur Ward? ......

(2) Whether, under , the circumstances. the other children of the deceased; namely, the plaintiff and:the defendants other than-fsidney Arthur W|ird, topk the share of. Sidney Arthur Ward in the residuary' estato or whether the the substitutional gift- to the children of Sidney Arthur Ward took effect f

I'J) It cither the Official Assignee or .He children of Sidney Arthur Ward tools his shark whether he or: they Testiectivel!Motilt ft--subject to a liability to.,account for.(hp sum of. £4BB paid by the, trustees to the hank and Interest, thereon?

The Judge quotet. authorities in regard t'6 each ot the questions. Ills angers to the suuorale Questions were, briefly,, as follow (1) The answer to this question aepends upon the answer to the second question, from which it follows that the shjfe of Sidney Arthur Ward in the residuary estate of the tntutor has not become vested in the Official aj. siffnee. The first "question Is therefore *l/wared accordingly.

(2) The answer to the first brancty'of the second question put by the. original" summoni il,;> The f la i ntlCt „» nli ., the "other than Sidney Arthur Ward tookytto interest in th» share of Sidney Arthur MrA.'in the residuary estate of the testator, The answer to the second branch of tho second question is ■ The substitutional gift to the children of Sidney Arthur \V:ird is valid and has taken efTeck. (3) The children of Sidney Arthur Ward living at the date fixed by the will of the testator for the distribution of his estate take the share of Sidney Arthur Ward frees from any deduction on account of the moneys paid 7'ln 'l iw etS «» Jhe Na,Umal Bank Of New Zealand, Ltd.. or the interest thereon. J3£ Ijtfwdfrecttd that the costs bt tluFitator P alt l ou' of the estate <>f. tin-;

„„ At ,. the , hearing of the case Mr." J. it.' Q'ulUlam Mr. A. H. Johnstone- for A ? 'hlldren of Sidney A. Wa M, and. Mr D