Decision Reserved In Rhodes Will Hearing

Press, Volume XCVII, Issue 28536, 15 March 1958, Page 4

Decision Reserved In Rhodes Will Hearing

Decision was reserved by Mr Justice Adams in the Supreme Court yesterday at the conclusion of a three-day hearing of legal argument on the interpretation of a provision of the will of Sir R. Heaton Rhodes regarding the residue of the estate.

The Court’s interpretation wafc sought by the trustees, M. H. Godby and J. H. Rhodes, who were represented by Mr R. E. Tripe, of Wellington, and Mr A. F. Wilding. The defendants were D. E. Willes and others (Mr B. McClelland), P. D. Blythe and others (Mr G. H. Gould), V. C O’Rorke and others (Mr J. G. Leggat), P. A. Innes and others R. A. Young), E. J. O’Rorke and others (Mr P. H. T. Alpers and Mr J. N. Matson). Persons entitled under the provision on total or partial intestacy were represented by Mr P. T. Mahon, with him Mr P. Feenstra. The residue of the estate was divided into 11 parts, one for each nephew and niece in the will and their issue. Counsel’s arguments concerned the meaning of the term “Issue” and the possibility of an infringement of the rule against perpetuities if “issue” included not only children but also remoter issue. Submissions on behalf of the first four defendants were heard on Wednesday and Thursday. For the fifth defendants, the children of nephews Sind nieces who died before the testator, Mr Alpers submitted that unless the qualifying clause in the provision was void for remoteness, it could and must have effect given to it as cutting down the apparent absolute gift to the nephews and nieces to a life estate. Two of the fifth defendants having died before the testator, the persons entitled in the remainder to the share were promoted to take an immediate interest where they were 21 years of age, and a contingent interesi where they were under 21, in the capital of the parents’ shares on the death of the testator. “Not Void’’ The qualifying clause in the provision was not void on the ground of issue including remoter descendants because issue mean) children, said counsel. Mr Alpers said that the testator was aged 72 when he made the will in 1934, and at the time his nephews and nieces were generally speaking, 30 to 40 years younger than the testator. The next generation, the children of the nephews and nieces were then, in one case aged 27 and unmarried, and of the others the eldest was aged 13. Only two others reached the age of 10. There were no remoter issue of the nephews and nieces, the first having been born in 1948 It was unlikely that the testator was considering remoter issue than children.

Two of the four local nephews and nieces were sheep farmers and one was the wife of a sheep farmer, Mr Alpers said. The very

bottom of the depression was reached in 1934 as far as wool was concerned, and the hotchpot provision regarding possible advances to the nephews and nieces was of more than passing importance. Counsel commented that he had been surprised at the extent to which the draughtsman of the will had been referred to by counsel when it was the will of the testator. He said that the qualifying clause, though difficult of construction, was more consistent with “issue” meaning “children” than otherwise. “If issue in the first place means issue of all degrees it follows that issue of all degrees take equal shares concurrently,” said counsel. Further Submissions In further argument for the fifth defendants, Mr Matson submitted that even supposing that “issue” did include remoter issue the classes to be considered here for the purpose of the rule against perpetuities were the issue of each nephew or niece. There was an immediate gift to the parents of his clients upon attaining the age of 21 or marrying, and since in both cases at least one of the issue had already attained that age, the class to benefit closed at the death of the testator, so as to include those already 21 and those living and under that age, provided they later attained 21 years, and the date of the testator’s death was the time for distribution. Whether “issue” meant children or remoter issue, the result would be the same for the fifth defendants, as the gift would be to the persons named only. Mr Matson said. Representing persons entitled in the event of intestacy, Mr P. T Mahon said he was satisfied that he could see no intestacy, partial or total, under the will. The only circumstance in which intestacy could possibly be argued would be if one or more of the trusts for the issue was void for remoteness Mr «Tripe addressed the Court briefly in reply on behalf of the spouses of the nephews and nieces.-