CONSTRUCTION OF A WILL.

Auckland Star, Volume L, Issue 202, 26 August 1919, Page 6

CONSTRUCTION OF A WILL.

VALIDITY OF A CONDITION". A decision was given by his Honor Mr. Justice Chapman :it the Supremo Court tins morning in reference to an originating summons to determine the true construction of the will of Jane Asliton, dated August 31, 1391, an.l particularly as to the validity of a condition attached to a devjse to the plaintiffs, Arthur Join, Lucas and Charles Henry Lucas (Mr Endwm) grandsons of testatrix. The defendant in the case was the trustee David (Joldie. for whom Mr. Mackv appeared. The property was bequeathed t,. plaintiffs only on the conditions that It should not be disposed of either by wa\ of mortgage or sale during the lifetime of either, except in so far'as one might sell out to the other, hut the monov so received must be puid over to the executor of the will to be invested by him for the children of the grandson" who had disposed of his interest. Arthur Luca* wished to sell his share to Charles for £125, but the district land registrar objected to register the transfer, on the assumption tlrat the devise was absolute and the condition invalid. His Honor said lie had come to the conclusion aftc a careful consideration of the authorities that the condition was void as bein~ repugnant to the estate on fee simpfe created by the devise. He therefore held that the condition was inoperative and that the property was vested in fee in the plaintiffs. The answers to the questions put by the summons would be- (1) the plaintiff, Arthur John Lucas, is entitled to sell his interest in the property in question. (2) The trustee, David Goldie, may transfer it to Charles ITenrv jjieas free of encumbrances, with the consent of Alice Eli™. Mitchell, daughter of testatrix. (3) The purchase money belongs absolutely to Arthur John LucaC and may be paid to him.