THE COURTS.

Press, Volume LXI, Issue 18545, 21 November 1925, Page 7

THE COURTS.

SUPREME COURT. (Before his Honour Mr Justice Adams.) A FRIENDLY ACTION*. Arising out of the will of the late 0. 11. A. T. Opic, ft friendly action was take:n. . declaration being nuked for. to alio sum of £325, regarding which a do"" h » d arisen in the ndministration of thees Mr Opie died on July 22nd. 192.->j • an estate valued at £13.128. olll ° , fred Joughin, widow, t'hristch' ui Charles Opie, farm manager of anganu . trustees of tile will of Charles Hen J.hus Truseott Opie (deceased), were >ne plaintiffs, and Ague* l»it» Truseott P . school teacher, of Chr'stchurch, and Otira Opie were the defendants. The statement of claim set out ~ hat the death of his first wife. Louis* T»j lor Opie, about June !'th, 3907, I • H- • ■ Opie became entitled to the income « his life from a sum of .£350, and it was 1 vid"d by a settlement that after the of C. H. A. T. Opie the. income cf the was to be divided equally among the female issue of Louisa Tiylor Opie. It was caimed that durin; his lifetime the testator allowed th» income from the £550 to accumulate. accumulation being now approximate^ Such accumulation was duly invested l>> ■ testator, who made an oral declaration that the amount of accumulations was to be in trust and for the benefit of his female children, and also made an entry in his 'rust ledger that the accumulations were tor girls" The plnintiffs prayed a declaration from the Court whether the accumulations ot approximately £32.1 were to be held in trust as part of the settlement, or whether for the female children of <\ H. A. T. Opie (deceased), or whether tlio accumulations were to form part of the zeneral estate of <. jiA. T. Opie. and for an order for costs to be borne by the estate. In her statement of defence. Agnes Kita Truseott Opie set out that. C. H. A. T. Opie believed the pum of £550 bec;mie payable to his female children upon his death, and made an oral declaration that he held the accumulations in trust ur.cl for the benefit of his female children. For a further and alternative defence it was claimed that the testator added the accumulations to the trust fund created under the settlement, and declared that lie had done so, and recorded such addition in the ledger used exclusively for the said settlement. In his statement of defence, Otira Opie denied that the testator made any oral or other declaration that the amount of accumulations was to bo held in trust and for the benefit of his female children, and denied that the testator made an entry to that effect in his ledger. *Por a further defence, it was claimed that, if any such declaration were made, snch declaration was insufficient in law to constitute an effectual trust in favour of the female children of the testator, because the testator retained an absolute and unfettered control over the accumulations of income; also that any declaration by the testator in regard to the accumulations was of so vague and indefinite a nature as not to constitute a valid declaration J of trust. Mr W. J. Sim appeared for the plaintiffs, Mr L. W. Gee, for the defendant. Agnes Kita Truseott Opie, and Mr R. 11. Livingston for i the defendant, Otira Opie. j TO SETTLE A DOUBT. I Mr Sim said the action was a friendly action brought by the trustees to settle a I doubt. The testator appeared to havo been I very much his own man of business. Tne estate had been proved at £13,128, and' deceased drew up his will himself. In tlje will ho left gifts to his sons and contributed a residuary estate for his four daughters two of whom were missionaries in India—for one son, Otira Opie. and for the children of another son, the late Ronald Opic. The question which came before the Court was whether or not a certain mortgage of some £3OO should be placed in the residuary estate or whether it should be included in the gifts to the sons. _ . Thomas Leslie Flans, builder, of Christchurch, a brother-in-law and close personal friend of the testator, and a co-trustee with him in a number of settlements, gave evij dence that he was appointed manager of testator's affairs early in the present year. He discussed affairs with testator, and on one occasion testator said that the £3OO mortgage would .go to the girls. 'Witness said, "You had better write it down, Charlie," and Mr Opie thereupon made a note "for girls" in the trust ledger. _ ( To his .Honour, witness said that testator s statement was that the £3OO was to bo paid to the girls at his death. This was the only evidence heard. . . j After counsel had addressed the Court, his Honour Baid that, while he accepted absolutely .the evidence of Mr Flaus, ' and had no doubt whatever tfcat he had done his best to give a clear statement of what passed between himself and Mr Opie with, reference to the provision to be made for' M"r Opie's daughters, lie thought it would be dangerous, after Mr Opie's death, to attribute to him the creation of a trust binding himsolf or his estate, without having clearer evidence than could be placed before the Court in this case. The declaration would bo that the moneys secured by the mortgage form part of the estate of deceased. It was ordered that the costs of the action be paid out of the estate. MAGISTERIAL. FRIDAY. (Before Messrs A. H. Holmes and G- E. ' Franklin, J.P.'s.) DRUNKENNESS. Sentence of fourteen days' imprisonment with hard labour was passed on Francis McClusky, who pleaded guilty to a charge of having been found drunk for the third time in Bix months. . . On a charge of having been found drunk while in charge of a horse and trap, Charles ■Neilson was cbnvieted and fined £5, in dofault 14 days' imprisonment. A labourer, charged with drunkenness for the first time, was convicted and discharged. SERIOUS CHARGE. A middle-aged man, John Robinson, was charged with having indecently assaulted a boy. a Robinson pleaded not guilty, and was committed to the Supreme Court for trial. Bail was allowed. BY-LAW CASES. On charges of having driven motor -vehicles without licenses to do so, the following were fined 20s:—H. Adams, C. Dorkman. H. Fitzgerald,' E. M. Gould. R. Hook. W. Haines. C. T. Wright, J. E. Southern, W. C. Pollard, and John E. Ensor. Tliomas Mooney was fined 10s. , For cycling at night without lights, T. H. Adams, H. J. Anderson, J. Holden, A. E. Langford, H. Fetberam, C. Ferry, S. Purvis, G. C. Toon, Robert Towart, and H-. Williamson were each fined 10s. N. Falloon was ordered to pay costs. Cycling on the footpath cost the following 10s each:—L. Garson, A. Chadwick, E. Cook, J. Harris, L. Moore, L. E. Smith, C. Snook, V. D. Smith, and B. Watts. For allowing a horse to wander, A. Rhodes was fined ss. Motoring at night without lights cost F. C. Mann, J. F. McKee, and P. Kirby 10s For leaving a motor-car unattended, H. G. Livingstone was fined 10s. The case in which .7. A. Daniels was charged "with negligent driving was dismissed. For having driven a vehicle past a stationary tram, G. Smith was fined 40s. Charged with having failed to produce a motor driver's license, Clifford Lee was ordered to pay costs. A charge of dangerous driving was dismissed. On a charge of having failed to notify disposal of a motor-cycle, Keith J. A. Mclivide was ordered to pay costs. A 20s penalty was inflicted on A. W. F. Jones for having failed to obtain a permit for the erection of a house from the Waimairi County Coiincil. "Ordered to pay costs," said the Bench when dealing with the case in which Israel H. Balkind was charged with having had no number on his car. Oliver Sutton wbs fined 20s for having constructed a septic tank without permission. Charged with having had no number on his motor-car, Patrick J. Limblin was ordered to pay costs.