INTERPRETATION OF A WILL.

Taranaki Daily News, 31 March 1922, Page 6

INTERPRETATION OF A WILL.

CASE OF DIVE v. HARRISON. SUPREME COURT JUDGMENT. Reserved decision has been delivered in the Supreme Court case concerning the will of the late Albert Harrison, of Mata, the plaintiffs being Bradshaw Dive, of Auckland, and William J. Tristram, of Eltham, executor of the estate. The testator made a will on May IS, 1918, and died on Cctober 23, 1919. He divided his estate between three children--James A. Harrison, Gordon Harrison and Mrs. Ada Fitzsimmons, the division being subject to the payment of certain legacies. The court was asked to decide whether the will provided for the estate to be held under a joint tenancy or a tenancy in common. At the Supreme Court hearing Mr. J. L. Weir (Eltham) appeared for the trustees, Mr. C. R. Stead (Waitara) for Mrs. Fitzsimmons, and Mr. R. H. Quilliam (New Plymouth) for all the other beneficiaries. Under the terms of the will the bequest of the estate to the three children was subject to the payment of an annuity of £3OO to the widow for life, or until re-marriage, and to the following legacies: £lOOO to Albert J. Harrison, £lOOO to Mrs. Beatrice Walker (a daughter), £5O to Mrs. Florence Courtenay (a daughter), and £3OO to Herbert A. Craig (a grandson) when he reached 21 years of age, and providing he was in the service of the testator at the time of the testator’s death.

Mr. Justice Chapman’s written judgment is as follows: “The first question in this case is as to the true construction of tbe trust respecting residue. The gift is in the following terms: ‘ln trust after payment of my debts and funeral and testamentary expenses for my children, James Albert Harrison, Gordon Harrison and Ada Harrison as joint tenants in equal shares, provided that if any of my said children shall die in my lifetime, leaving issue living at my death, such issue shall take and if more than one in equal scares as tenants in common the share which their parent would have taken if such parent had survived me.’ This is followed by a charge on the residue of £303 for the wife. The question is whether this creates a joint tenancy or a tenancy in common,” continues the judgment. “I have come to the conclusion that despite the use of the technical expression ‘joint tenants’ the testator has created a tenancy in common.

. . . . The real question is what tbe testator himself had in mind when he made or assented to this disposition. I think that it is quite clear that he intended that the issue of a child dying in his lifetime should come into a share as tenants in common. This, according to possible events, might mean that such issue took the whole property or two thirds or one third. As matters turned out the event never happened, but we must resort to the will to ascertain the testator’s intention on aqy assumption, not as to what has happened, but as to what might have happened. What seems to be decisive is that if a third of the bequest had passed to such issue they as a group could not have held it as joint tenants with the other children, as they might in turn have died successively, transmitting their sub-shares by will or intestacy. The theory of joint tenancy is that all have equal chances. Here clearly the chances would not be equal. . . . . . For these reasons I come to the conclusion that this instrument creates a tenancy in common.

“The second question under the originating summons is whether the executors and trustees are at liberty to dispose of the personality of deceased’s estate without obtaining the direction of the court in view of the terms of the will which devises real and personal estate subject to encumbrances. The general residuary bequest and devise disposes of ‘all the real estate and the residue of the personal estate, which shall respectively belong to me at the time of my death, or over which I shall have a disposing power by w ” including any policy or policies of as ice upon my life or against injury or death by accident) .unto my trustees.’ Then follows the trust for children already quoted. I do not think that the circumstance that the whole fund thus created is charged with the annuity of £3OO to testators wife, and further charged with a number of legacies, does away with the ordinary rule which gives the executor full control over the personal estate, subject, of course, to their using due care in protecting the legacies so charged Subject to these observations I see no reason to doubt that the executors have plenary authority to deal with the personal estate.

“The other matter is a discretionary question in which the parties all ixmeur in askiirc the court to allow the testator’s dairy farm to be carried on under the management of James Albert Harrison, one of the sons of the testator, who is interested in the estate. Affidavits have been filed as to the fitness of the proposed manager, the propriety of paying him the suggested salary, the undesirability of letting the farm, and the desirability of carrying it on for a time until the youngest son comes of age or until what may be termed panic conditions as to land values in Taranaki have subsided. After an enormous and unnatural inflation in dairy farming properties arising out of conditions brought about by the war, and fostered by the given to vendors, there is at present something like a collapse of the market. Assuming that prices of produce will become steady at a reasonable figure—and there are at present, indications of that then it is quite reasonable to look forward-to a time when sales of and will take place at figures which may be said to be free of the influence of panic produced by exceptional financial stress By allowing the property to be earned on the youngest son, who will attain his majority in 1923, will be allowed a voice in the ultimate dealing with it. "Taking all the evidence before me I have concluded that this is a proper easin which to grant the leave applied for In case any question should arise as to the terms of the order it may be submitted to a judge in chambers. Order accordinglycosts of all parties out of the estate.” ’