SUPREME COURT.

Dominion, Volume 5, Issue 1245, 29 September 1911, Page 3

SUPREME COURT.

A LEGACY. HOW SHOULD IT Blv PAID? Sitting in Banco yesterday, Mr. Justice Edwards.heard an originating summons, in reference to the estate of John Carroll, settler, of Maurieeville, deceased, for the purpose of ascertaining whether a daughter of the deceased was ontitled to a sum of .£2Ol under the will of deceased, and, if so, whether the sum should bo paid out of the general residue of the estate or out of the share of Martin John Carroll, who had elccted to purchase a particular section of land under the option conferred on him by the will, having thereby, it was contended, beconio liable to pay tho sum mentioned.

Tlie parties to the action were Mary Ann Brcoks, wil'o of Richard Win. Yarc Brooks, farmer, of Mauricevillo, and daughter of deceased, plaintiff, and Richard Win. Yaro Brooks and Chas. Kdwd. Blewet, executors and trustees of deceased's will, and -.Martin John Carroll, labourer, of Maurieeville, defendants. Mr. C. ![. Tread well appeared for the plaintiff, Mr. I). Logan for the trustees, and Mr. A. R. Bunny for tbo third defendant, Martin John Carroll.

The plaintiff, bv affidavit, slated that at the time of the death of John Carroll, the parcel of land containing over 117 acres, being Section 95, Block 11, Kopuaranga Survey District, referred to in tho will of the deceased, was subject to a memorandum of lease for the term of ten years from October 1, 100S, at a yearly rental of XSS, so that when the testator died on May 11, 1910, there wero upwards of eight years of the lcaso unexpired. Thefo was a provision in the will, however, that, in the event of a sale being arranged, tho lessee (Richard Will. Yaro Brooks) should reliiujuish tho unexpired term of the leaso upon payment to him of .£151). On March 23, 1911. one of the defendants, Martin John Carroll (son of deceased), purchased the properfv at .£2O an acre, and paid the sum 0f".£150 in respect of the unexpired term of (he lease. Haintiff (Mary Ann Brcoks) was entitled, under tho will, to the sum of .£261 (three years'.rent of tho properlv referred to at .£BB per annum). " The trustees refused to pay her more than .£73, being the rent payahla on tho section for the period from tho death of testator until tlio disposal of tho properly to Martin John Carroll. It was for tlio purpose of having the i|uestion sell led that plaintiff brought the originating summon?. After bearing legal argument his Honour reserved decision. ADVERTISING SODA FOUNTAIN. IN CARROLL'S TEA-ROOMS. An advertising soda fountain was the main subject' of an action for alleged breach of contract heard in the Supreme Court vesterday before tho Chief Justice (Sir Robert Stout). Tho parties to Ihe action were Ilonnah and Jackson, advertising agent's, plaintiffs, aud Edmund Carroll, confectioner, deiendant. John Stephen Oliver, John Dwyer, and Richard Dwycr wero joined as third' parties. Mr. T. S. Weston appeared for the plaintiffs, Mr. A. W. Blair for tho defendant, and Mr. W. H. D. Bell for the third parties. Plaintiffs fn their statement, of claim alleged that on January 23, 1911, they entered into a contract with Edmund Carroll, whereby it was agreed that an advertising fountain should bo placed in Carroll's tea-rooms in Willis Street and remain there for live years, and become the properly of Carroll at the end of that period. Should Carroll sell his business within fivo years, the sale was to provide for the fountain remaining in place in the tea-rooms until tho five years had elapsed. On July 15 last, the business was sold and the soda fountain was included in tho deed of transfer, but no provision was mado for it' to be retained in place in the tea-rooins. It. had sinec been removed and as the plaintiffs, who had let advertising contracts, suffered serious damage, they brought tho present action against Carroll for breach' of contract, claiming JMOO damages (computed on the profits of the advertising for the first year, which plaintiffs stated were .£IOO iict) for loss of the rights for four years. As a defence, Carroll denied that ho had omitted to make provision for the fountain being retained in place. Though the agreement did not contain such provisian in writing it was contended that the purchaser of the business understood that the fountain was to remain in place. ■T. S. Oliver, J. Dwycr, and ft. Dwyer, who had boon joined as third parties, repudiated liability in connection with the contract. During the hearing of the case Mr. Weston intimated that if defendant could iret the fountain ' back in its place or find a stand fur it in some place ecuiallv suitable, the_ plaintiffs would bo satisfied. After hearing evidence and legal argument, his Honour reserved decision.