CONSTRUCTION OF A WILL.

Auckland Star, Volume LVII, Issue 142, 17 June 1926, Page 11

CONSTRUCTION OF A WILL.

QUESTION OF DIVISION. RESERVED JUDGMENT GIVEN. An action arising out of an originating summons to determine certain questions which had arisen as to the construction of the will of William McCutcheon, who died on February 25, 1565, was the subject of reserved judgment in the Supreme Court this morning by Mr. Justice Stringer. The plaintiffs were William College and William Matthew Tapp (Mr. Prendergast), and the defendants William College, William John College, John Francis College, Frederick Robbin College, and 14 others. By the will the testator left the whole of his estate to trustees in trust, the remainder to be divided in equal interests between his two daughters, Sarah McCutcheon and Mary McCutcheon, so long as they remained members of the United Church of England and Ireland in New Zealand. They would forfeit all benefits if they married persons of the Church of Rome. In December, 1886, the testator's daughter Mary married the plaintiff William College, who was not a communicant of the Church of Rome, and there were issue of such marriage eight surviving children, who were nominal defendants in the present proceedings. Mrs. College died on December 20, 1922, having, all her life, remained a member of the United Church of England and Ireland in New Zealand. Sarah McCutcheon, the other daughter of the testator, was, on July 3, 1865, married to William Tapp, who was not a communicant of the Church of Rome, and there were ir.rue of the marriage eight children who were also nominal defendants in the present proceedings. Mrs. Tapp was still alive, and had remained a member of the United Church of England and Ireland in New Zealand.

In these circumstances the following questions were submitted to the Court: (1) Whether under the will of the testator, his daughters, Mary (Mrs. College) and Sarah (Mrs. Tapp), acquired and absolute interest, and in what shares and proportions in the remainder of his estate, on the termination of the life interest of his wife? (2) Whether the said Mary (Mrs. College) and Sarah (Mrs. Tapp) each acquired a life interest only in such remainder, and if so; (3) whether the children of the said Mary College and Sarah Tapp acquired the remainder of such estate upon the termination of such life interests, and, if so, in what shares. " I am of opinion," said his Honor, " that the proper construction of the will is.that (subject to the annuity to his wife) the testator's daughters, Mary and Sarah, took the whole of the estate in equal shares, and that such shares were absolutely vested, but liable, in each case, to be divested upon the happening of any of the contingencies mentioned in the will. This being so, it was impossible to distribute the estate while both daughters were alive. Now, however, that Mrs. College is dead, without, so far as she was concerned, any of the divesting contingencies having happened, her share being vested, and therefore transmissible, will pass under her will, by which all her property, both real and personal, was devised to her husband. With regard to the remaining halfshare, that must remain in the hands of the trustees until Mrs. Tapp's death (she, of course, receiving the income in the meantime) because, until then, it is impossible to predicate that her share may not be divested. " The gift to charitable purposes is no longer operative, as it has not become impossible that the contingencies upon the happening of either of which the gift was to take effect, can occur. This, I think, disposes of all the questions submitted which are therefore answered accordingly. Costs of all parties to be paid out of the estate."