SUPREME COURT.

Dominion, Volume 1, Issue 30, 30 October 1907, Page 9

SUPREME COURT.

IN CHAMBERS. Mr. Justice Cooper held a sitting in Chambers yesterday'morning. Probates of the wills of Harriot Stamford and .Joseph Quaintancc. were granted, as were also letters of administration in the estates of Henry Carron, William Henry Mooncy, and John Robinson Barnott. A motion to place the estate of Catherine Mulligan in the hands of-the Public Trustee was granted. In re M'Konzie and another v. tho Presby-. teriau Church Trustees, consideration of an originating'summons, to determine to. whom a legacy of- £200 shall be paid was postponed, [lending receipt of. the Attorney-General's consent. An order, as moved, was made on a summons by defendant for further discovery in the case Bell v. tho Wellington City Council. In the matter of the Public Works Act, and re the Johnsonv'ille Town Board, a motion for an order to tax costs,was..granted, as moved. Defendant in tho case, Blake v. Clcater was granted two guineas costs in respect ot n motion to dismiss the action, plaintiff having discontinued. ' ( , . Consideration of a petition to appoint E. L. Stiiart Forbes as guardian ad litem in re Mildred Gwendoline Stuart.Forbes,.an infant, was postponed until her' consent has been obtained.

EXECUTORS' COMMISSION. His Honour delivered an important judgment in respect to a motion to .confirm the Registrar's report on, the question as to'pay-; ment of commission to. the executors in tho estate of Alfred Edmondsou (deceased). The Registrar recommended-that the sum of £357 was reasonable commission, and that that sum should be paid to two of the executors, Messrs. Allen and Dickerson, only. His Honour said that the will provided for the payment of ten guineas' per year- as commission to the executors.- Mr. Blair, counsel for Mrs Edmondsou (who was also an executor), had admitted that that sum was not a reasonable allowance, but had objected to that portion of the motion which asked :for an order that tho whole, of tho commission should bo paid to Messrs. Allen and- Dickerson. His Honour pointed out that-Mrs. Edmondsou had throughout acted as one of-tho executors, and had, as one of the executors, signed documents and cheques in connection with the estjate, although the major portion of tie work had been, done by the-other two executors. The accounts which.had been filed were tho/accounts of,the executors as a bod;'. In his opinion, the commission must be allowed to the oxecutors as a.body, and they must settle among 'themselves tho division of tho amount to be allowed.' As the'major part of the work had been dono by Messrs. Allen and Dickerson, it.would, he thought,,be a graceful'act. oh' Mrs. Edmondson's part,:<>sppcially. as she had, already stated, that sba did not desire to receive, any commission,,to agree ..to the 'commission being paid to t?io ' other two executors; but he could not make .any order compelling her to do so. The second objection was to a sum of £55 105.,-which' 1 the Registrar'had, reconimended should be allowed as commission upon, tlio payment by the executors .of a mortgage of £2775 owing by the testator to the • A.M.P. Society. His Honour said, that, if an allowance were made for mortgages paid out of tho assets, and a : commission also on; the gross value of the. assots, the-'.resiilt would be,a double con:mission, and that was precisely, what the eaecutors claimed in the present case. Tin's sum of £55,105.-had been recommended by the Registrar under a, misapprehension of tin'sdecision of Mr. Justice Williams-in re Lanj>lands estate (21 >N.Z.L.R.),.- and could not b'j allowed. The 'third and fourth objection, were to a sum of £03 9s. 7d., being commission at- the rato-of 1J per cent, on-a sum o; £5078 10s. od., interest collected by the executors from Mr. Dickerson, and a'sum'o; .€ls4;'ls. 6d.,. being -commission at tho sam.i : rate on a sum of £12,338'6a::6d:, hionoy paid by Mr. Dickerson to tho executors. l " Thi' testator and Mr. Dickerson woro in partnership as merchants at the date of the death o: the testator, whose will contained tho-follow- : ! ing provision: "I,hereby direct and empower my trustees to allow to remain in the partnership firm of Edmondsou and Dickerson 'all capitali or monies as shall bo invested or employed therein at the date of my decease untiltho expiration of tho existing partnership term, so long as; at the half-yearly balance provided to be taken by the deed of partnership mado between myself and Clifton Henry. Dickersbii, the partnership shall show a not profit of £5 .per annum' for each six months, during which the ;iame shall be car- 1 ried on." The executors of bis will wore also, the trustees of his estate... Acting under tins liower, the executors allowed the testator's capital'to, remain in the business, but tho business 'was thereafter carried on by Mr. Dickerson, there being no partnership between tho executors and Mr. Dickerson. Mr.'. Dickerson agreed to pay 8 per cent, interest on the capital .-which the testator had in tho business at the time of his death, and tho sum of-£so7B'los. 6d. had' been paid by him to the'executors in respect of such interest.■ The'£l2,33B'6s.- 6d. were the capital monies so retained by Mr: Dickerson, and theso monies were paid to the executors 'by-'Mr. Dickerson on July 31, 1907. Mr. Blair had objected to the commission recommended on tiiese two items on the ground that they re- - picsoilted monies due. by one of the executors and paid by him to the executors as a body.' Tho executors' as a body had collected these monies. It was a mere accident that ono of the'executors-was the partner of the testator; and ho could see no valid reason why commission at a reasonahlo rato should not ho allowed. If, at the death of the testator, the testator's capital had been withdrawn by the executors; there could have been no reason for disallowing a'reasonable commission upontho amount received by the executors, and the fact that, acting under the provisions of the will, the executors permitted the money to remain in Mr. DickersonV hands for the term agreed'upon could not, in his opinion, affect the question. The .£12,338 6s. 6d.was an asset of the estate 1 got in by the.oxecutors, and' the sum of. £5708 10s. 6d. was revenue received by the executors during- their administration of the testator's estate, which appeared to have been very well managed. Tho sum of IJ' per cent, recommended, by tho .Registrar was, in his opinion, a reasonable commission, and he would allow it. No objection was. taken to the other items recommended by tho Registrar.' The'result was that he would reduce the net amount of £357 2s. sd. recommended by the Registrar by deducting the sum of £55 10s.;. and allow a net sum of £301 12s. sd. as commission to tlio oxecutors under Section 20 of the Administration Act, 1879. Tho apportionment.of this, cum among the executors must be arranged bv tho executors themselves.

. Mi'. Peacock appeared in support of tlio motion. '-~..' -PRISONERS SENTENCED.' Three prisoners came up for sentence yesterday morning ,before Mr. Justice Buttou. ' '•..•.' THEFT'.OF LODGE MONEYS. ' i - William Douglas Aysou, who had pleaded guilty to'the theft of a sum of money belonging to the Stonehongo Lodgo, U.A.0.D., at Masterton, was represented by Sir. T. M. Wilford. Evidence as to character was given by Mr. A. W. Hogg, M.H.R., and Mr. A. J. Rutherford, Clcrk-Aiisistant to the 'House of Representatives..'. ■ . ' Mr. Wilford asked the Court to give prisoner the benefit of the First Offenders' Pror tuition Act. .. He said that tho members of the lodge did not wish to see tho young man imprisoned, as tho position in which ho had placed himself was a sufficient punishment, and the greatost sufferers would bo his wife and three young children.; Full restitution had already been made. Mr. Myers (Croivn Prosecutor)-stated that tho polico report was favourable. His Honour said that no prisoner could have had a hotter character given him. In his opinion, the case was one which the Probation Act was intended to meet. He. felt suro that the prisoner would not err in the saiuo way again. Some pressing claim had, ho supposed, induced the • young man to appropriate tho money instead'of. applying it as the rules of the order prescribed.—Afc'the time, prisoner no' doubt- intended to refund the-money before the discrepancy could bo

discovered. Numbers of young men had begun, .their., downward career in tlio same way: ■■• ■Ho -would' admit him to probation tor -six months on condition that lie paid the <?osts of the prosecution, £3 65.. within seven days. ""• BREAKING AND ENTERING. - •Tames Baldwin, who had pleaded guilty to breaking and entering and theft- at Hawera, was. not represented by counsel. lnsoner expressed sorrow for-what he had 1 dono and pleaded for another chance. " His Honour said ho was unable to admit prisoner to probation, as he had previously boon .convicted and-bound over to keep the-, peace for six months for assault. ' Then,-' again, the police report was not at all favourable. He could not understand what had -led prisoner to commit - the offence.-■ ■> Theyoung man had broken into a house during" the absence of the occupier and.removed anumber of articles (which he, bad concealed ma ditch and in a hedge), and then left the district. In his confession, ho had implicated another' young man. - 13y .o doing, . prisoner had 'not'in;any way lessened hia: r ■ guilt;-indeed., in- the eye of tile law, the fact . ; that more-than • one person had been' con-.",' •c'fci'iied aggravated the crime,' because tho'"' fact that an agreement was entered into to '■-' commit the offence was in itself a seriousmatter. He would impose the most- lenient sentence ho could feel justified in passing,, ' via., six months, with hard labour. '',';• BREACH OF PROBATION ACT. .--'"•-.• David Davis trow,-who had been committed at .Napier; for disobedience -of. a--license issued under the First Offenders'' Probation Act'was .represented by Mr. Toogood." His Honour said it would be better to'' postpone sentence as prison -r was awaiting'' trial on another charge. - It was a pity hobad been brought -down' from Napier. He: , would be remanded'back, and sentence,ill iho t; present case would,.be .postponed. '" This morning, at 10.30 o'clock,'Mr: Justico - Cooper will dcliv-ir judgment in the case in.*, which James' Hunter, of, Hukanui, challenges,-.., tho validity.of n..heavy traffic bv-law made by,' the Ekctahuna County Council "in 1901."" . At 10.30, this morning, Air. Justice Cooper, v " will 'hold a sitting in Banco: