INTERPRETATION OF WILL.

Auckland Star, Volume LVII, Issue 157, 5 July 1926, Page 9

INTERPRETATION OF WILL.

CANCELLATION OF DEBT. i RESERVED JUDGMENT GIVEN. An originating summons to determine certain questions which had arisen as to the interpretation of a will came before Mr. Justice Stringer in the Supreme Court last week, and on the questions raised reserved judgment was to-day given. The matter was that in regard to the estate of the late Joaquin Eernandez Loza. and the plaintiffs were Andrew Joseph Loza i known as Fernandezi and Samuel Hesketh i Mr. Meredith and Mr. Leary). an i the defendant, were Peter Fernandez, .loin Alphonso Fernandez and Fernando Fernandez -Mr. Richmond). His Honor said: "The testator, aftermaking --ert.iin specific devises and be quests, devised and bequeathed the whole or the residue of his real and persona! estate to trustees upon trust for such or" his eight named -liildren t four daughter- and four son- . as -hould survive

him and attain the age of 2.5 years, or. being daughters, should attain that age or. with -he consent o: the trustees, should marry before attaining that age. All the eight children of the testator survived him. and have attained the age of i. years. A portion only or" the estate has been realised by tbe trustees, and out of the proceeds thereof a sum of £4100 has been paid to each of the testator's two sons. Andrew Joseph and Fernando, who alone take absolute shares in the estate. A portion of the estate consists or" the Br : tomart Hotel. which is held under 'ease from the ..ueklami Harbour Board, which has about :>■> years to run a _,_ j- ;,_ r_ e ._j re ,_ :iv __,_, trustees to -e!l this property upon terme which will ena ; --le the best price to be obtained. The first question submitted tr ' t- 1 " "'"' r is «heth»-r. in riie circumstances above sr a red. tiie iienetb-iaries. Andrew Joseph Fenaudez and l-'ernar.do Fernandez, arc en-:rh-,J to interest on their -hares until payment thereof; and. ii so. from what iare should such interest run, and on una: ba.-is should their respective s.jares !>_ e-tim_-e-i. havin_ regard to tiie unrealised assets.' "The next question submitted ariseunder clause 11 0 f the will. ~.-_ 01i _ above, and is as follows:—The beneficiary, John Alphonso Fertiande/., n.inj. unable to pay to the e-tate the sum ot fW) ovvini; by him to tiie deceased, can rhe trustees accumulate tbe share of tiie income ; ayaole to tiie said John Alphouso Fernandez, and apply tiie sanie towards tbe Ii [uidation of the -aid -urn of £m-i- if not. can the trustees deduct

tor such purpose .my. and If -.». what, portion oi income payable to tin; -.t.d John Alphoti.o Fernandez! "In m_. opinion both branches of this question must i>c an--wered in tiie negative. The laii-ua-e of the cla i-e it clear to my mind that the si.are or the estate bequeathed to John Alphonso -eruande- is one-eighth share of the whole, less the sum of £-0<) mentioned in the ela_se. and that it was not intended that he should be called upon to pay up this -urn or to cring it into account until the final diatriuution oi the estate, lv other words, tlie te.tator has cancelled the debt mentioned by an anticipatory deduction oi an equivalent amount from t.ie share of t;:e e.-tate be queathed to the son. It was, ::i effect, an advance for the purpose, and had the effect of discharging the de.'t. The re maining qtiestiou ;.- as to the proposed sale ot -lie Britomart Hotel.

"Having regard to the fact- that Che hotel property repce_en:s a very con siderable part of tiie t. tal lalie of t.ie estate, that the trustees are given the widest discretionary pow.r* to postpone tiie realisation of the estate, and that they arc authorised to lea.-c any part of the estate for any term cot 21 years; and that a sale of the pro perty is much more desirous iv the inter ests of the beneficiaries than the lea_im; of it. I think tiie trustees therefore are justified in selling the property on the terms usually adopted in dispodng of such _ property. "Cosr e of the pla.ntilfs including second lounseli to oe taxed as 1 etween solicitor and client and pad out of the estate. I osts of the defendant. John Alphonso tYrnande/. ti.\ed at £10 In to be paid out of ' tw estate.