COURT OF APPEAL.

Dominion, Volume 4, Issue 1096, 7 April 1911, Page 3

COURT OF APPEAL.

HOW FARE THE GRANDCHILDREN? UNDER A WILL. An interpretation nf tho will of the late Mrs. Kachael Collins, of Parnell, Auckland (as given by the Chief Justice in September last) occupied the Court of Appeal yesterday. ( The appellauts were Win. Samuel Collins and David Alexander Hay, trustees, and tho respondent was Harold Alfred Collin.'?, a grandson of the testator. Certain of dcceased's children wore dead at the time of the making of the will, and tho point involved was whether tho will provided for the offspring of these. In the course of the judgment, whicli was now appealed against, the Chief Justice said:—"One of the children, Alfred Edwin Collins, died before the date of the execution of the will, and the question, is whether the children of Alfred Edwin Collins take a share in the property." The essential part of tha judgment lead"Seeing that words equivalent to certain words in this will ("shall predecease me") have been held not necessarily to import futurity, I think it is sufficient for the Court to say that the children of the deceased son aro entitled to the share, that would have gone to their father, had he died after the making of the will, and I may add that, in my opinion, if I were not to so hold I would be differing from the decision'of Barraclough v. Cooper, and a long string of authorities." The grounds of the appeal were that the judgment was wrong in law, and that consequently the children of Alfred Edwin Collins were not entitled to inherit. The value of the estate was between JMOOO and iSOOO. Mr. T. Cotter, instructed by Mr. Mahoney, appeared for appellants, and Mr. E. W. Burton for the lespondent. In opening his case, Mr. Cotter, for the appellants, stated that the deceased Kachael Collins had left eight children. She hnd died on February 26, 1009, at the age of S3. Two of her children had married, and had died prior to the making of the will, but hnd left children surviving at the time of her death. Counsel urged that the language of the will, taken in its ordinary significance, and subject to the rules of law applicable to it, left no doubt about tho matter, and that it was clear that deceased, by the words used, did not include, as beneficiaries, children who were not in existence at tho time that the will was made. Mr. Burton, for respondent, argued hi-i ease at considerable length, and sought to show the circumstances which were before the testatrix when she made the will. She had made it in 1905. and an affidavit put in that morning indicated that she was fully aware at the time that Alfred Edwin Collins was dead, ns she had paid his funeral expenses. She was also fully aware that ,i\ daughter was dead, as she had taken charge of the daughter's child. But the old lady had apprently not been clear in the instructions which she gave to her solicitors as to the drafting of the will. Mr. Justice Donniston: "That is tho root of the whole trouble." His Honour added that he did not himself think that the old lady meant to disinherit these children. Seeing that the children living were over 21 years of age. Mr. Burton urged that the words "child or children" (in the will) must havo bc-er. intended to cover the. grandchildren. Tlies? words must, in effect, bo read, "grandchild and grandchildren." This testatrix, he thought, clearly intended to nrovide for all her grandchildren. The will had to be construed in the larger and wider sense. Mr. Justice Williams: • "That depends on the rest of the will." ■ Mr. Coi'.er, in replying, submitted that, although members of the Court might .think that they would not have made such a will, still they had no right to make a new will. To construe the will as he had asked, however, was clearly within the language of the will aiid the legal authorities. The Court reserved its decision..