A DISPUTED WILL.

Ashburton Guardian, Volume XXIX, Issue 7242, 30 July 1907, Page 1

A DISPUTED WILL.

I In the Supreme Court', at Chiistchurch, ou May 29, a case was heard before Mr Justice Chapman, Church Property Trustees v. Public Trustee, in which Mr Stringer and ill' Besw.ick appeared for the plaintiffs, Mr 'G. Harper for the Charitable Aid Board, and "Mr J. H. Williams for the defendant. Judgment was received by the Registrar yesterday. Tbe --ase was an originating summons to obtain an interpretation of the will of William' Lucas, of the Ferry Road, near Ohristchurch, farmer. The trusts of the will giving rise to the dispute, the judgment states. were "to hold all and singular such part' of my real estate as is situated in the County of Akaroa upon trust for the Church Property Trustees in ihe diocese of Christchurch, such lands to be held by the said Church Property Trustees m trust for general church purposes, for the Church of England in connection with the parish of Akaroa', and as to all the residue and remainder of my aaid real estate .... in trust for. the Orphan Asylum of the Provincial District of Canterbury.'-' Read literally, the construction of the will gave rise to no difficulties. It was, however, suggested that when the testator spoke of land in the County of Akaroa he meant 'to include land in the borough of Akaroa, that borough being, as, it 1 were, an enclave within the county. He possessed land in both; part of the land in-tho county was continuous with that in tho borough, and the other part lay at a ' distance. Testator did not live there, , and had not, at any rate for years, lived - there. The rest of his land was at a ] great distance from the locality, in Ashburton County. The land in the borough was worth £1000, that in tho county £4000, and that in the Ashburton County"about £6000. The parish of Akaroa was a district of the Church -cf England, comprising the borough and a very large part of the coy.::' ■. No doubt there was room for suggesting an ambiguity in such a description. TW grounds were put forward in support oi the suggestion, that was _aid to be a very common error, to describe a place as in a certain county when it was in fact within a .borough within the iimit). of the county, as the fact of a borougn being excluded from the county was not universally known. Counsel had siig-o-ested that there was a distinction between a county in tbe popular and geographical sense, and a county m tho sense of an area of"local. government. He (Justice Chapman) could not recognise that any such distinction was popularly recognised. He could not find anything in these considerations to suggest an ambiguity in the will. The only thing that could reasonably b_ looked on as a source of confusiowi arose _ut of the fact that the county and the borough bore the same name, but there was nothing tangible to suggest any confusion in the mind of the testator, or any real ambiguity in the will. When this was tho case, there was iio other _afc mode of interpreting the iustru■nent than to read it literally. Several authorities had been cited, but in a case of this kind, one neither obtained nor expected much assistance from authorities. Such assistance as was obtained in this case was of a negative character. The general course of authorities showed that if all the words of a description were true and correctly described a thing, the Court would not presume that there was any error in order to avoid inconvenience, such, for instance, as having to cut off land which had been qnioyed as a portion, of a named farm, because it was found to be outside th<_ parish in which the farm was said to lie. Indeed, greater inconvenience than this, such as having to divide a building re Bennett, Henderson and Bennett- (21 N.Z.T..R. 113), or even dividing _it by horizontal cleavage to one, giving en upper room to one devisee and a lower room to another. His .judgment must therefore be in accordance with the foregoing opinion. Looking at the circumstances, that the case was a contest between two specific devisees in which no one else was interested, he thought that the proper course was to leave both parties to bear their own costs.