THE DOCK.

Dominion, Volume 5, Issue 1281, 9 November 1911, Page 3

THE DOCK.

SPECIAL CASE IN COURT AGAIN, JUDGMENT FOR M'LEAN AND SON. Further mention was made in tlio Supremo Court yesterday morning, before the Chief Justice (Sir Robert Stout), of the special ease bearing on an action for alleged broach of contract in connection with cessation of work at tho Wellington Dock. Tho parties to the action were Pitcaithly and Co., contractors, plnintiffs, and John M'Lean and Son, contractors, defendants. .Mr. H. D. Bell, K.C., with him Mr. F. G. Dajziell, appeared for plaintiffs, and Mr. C, B. Morison, with him Mr. A. \V. Blair, for the defendants. In the original action, Pitcaithly and b. claimixl .£20,000 as damages for. alleged loss of proEt. It had, however, been agreed that before hearing this case certain questions of law should bo fettled

l)v stating a special £ase for the Supremo Qourt.

Eight had been submitted to tho Court lor answers, but his Honour remarked at the hearing that the whole question seemed to be: Whether it was a contract to purchase a certain amount of gravel or to purchase according to requirements? Tho questions submitted to the Court wero in favour of M'Lcan and Son and >ir. llorison then asked for judgment for defendant?, in accordance with his Honour's decision, but Mr. Dalziell oppjsed the apnlicition. His Honour agreed to defer judgment, end adjournf-d the case until yesteid'iv, so that counsel for Pitcaitl^y "and Co. would ha'j) an opportunity to stato specific grounds as to why judgment should noLbo entered. Mr. Morison formally niovpd for judgment for defendants yesterday. He understood tho other side did not consent to judgment, but would not oppose it. The question of costs remained to be settled. Mr. Bell stated that he dii not acree that defendants wero entitled to judgment. They were going to appeal, but if his Honour thought that the.ro was sufficient in the special case to warrant him in giving-judgment no doubt he would do so. Counsel opposed tho application for special costs. His Honour entered up judgment for defendants as asked for, with costs speoified, second counsel not being allowed. Mr. bell applied for a stay of proceedings as Pitcaithly and Co. proposed to appeal. This was granted.

WIFE'S WILL. SHOULD SEE PROVIDE JOR HUSBAND? " An interesting action was heard in the Supreme Court, before Mr. Justice Chapman, yesterday, whpn Campbell Colquhoun, clerk of works, Wellington, proceeded against the Public Trustee, as exocutor of tho will of Ellen Geneva Colquhoun, the deceased wife of plaintiff, for a provision out of deceased's estate. The clain n.; made unde the Family Protection Act, 1908. upon the ground that Mrs. Colquhoun died leaving; a will without making adequate provision for her husband's maintenance. Tho Hon. T. W. Uislop appeared for Campbell Cnlquhoun. nn_d Mr. J. W. Ifacdanald for tho Public Trustee, and also for th-5 Kvnt Terrac-) Presbyterian Church, the Missions to Seamen, the Coys' Institute the Salvation Army, and the young Mon's Christian Association, residuary legatees under deceased's will. It appeared that deceased, aft;r giving sundry legacies, gave tho residue of her estate to the above institutions, who, after making inquiries, resisted the claim on tho ground that Colquhoun was not in need of maintenance, and also oii account of the reasons that caused his wife to separate from him, she having lived npnrt from him for. two years before her death.

Sworn affidavits were to the effect that clsimarit, who was recently clerk'of works at the Girls' College, is now imiloyed in a similar capacity at a salarv of £5 a wool: in the erection of the Union Bank, Palmerston North, which is exnected to occupy the next nine months in "building. Ho is 45 years of age, and allies that his hearing is badlv affected and i\as been so for U years. This has, and will, interfere with his means of earnin" a livelihood. He alleged that he was "of weak constitution. Deceased's onlv child died in 1303, aired 11 years. The" only property own«d by deceased wa3 nlaccd in her name by claimant many years ago. Ho filed recent references from >Wellington architects; Crichton and Mlvay, T. J. J. C. Maddison, and Edward C. Peers, testifying to his ability as a clerk of works, and recommending his services as fully qualified for his position, he having been employed in the erection of many public buildings in and around Wellington. He submitted evidence of his pood character, and claimed that he had lost employment by reason of his deafness and on account of his weak condition of health, ho could no longer work as a carpenter. He controverted the evidence submitted by the defendants relating to the causes o"f his separation from his wife.

On behalf of the defendants, evidence n-as subraittcj by deceased's sister and brother-in-law, with vrhoni deceased lived for two years after she separated from the claimant, explaining the causes of tho separation and plaintiff's conduct in that connection. Evidence was also given innt tho alleged deafness was very slight, and was exasperated lor the purposes oi the claim and that when it was alleged to bo at its worst it had not prevented his obtaining employment. In opening the" case, Jtr. Hislop said the application rested on the necessities of the case and the fairness of tho rc'mest. Tho husband and the wife had agreed to leave whatever property they had to the other. The husband's will was unrovoked. but his wife had made a fresh will. This was set out in the plaintiff's affidavits. Mr. macdonald urged that there was no direct evidence that the applicant had lost employment through his infirmities. The Court should hesitate before disturbing the testamentary wishes of deceased. Defendant's conduct disentitled him to relief. His Honour: Has he any burdens? Mr. Macdonald: ■Hβ has only himself to keep. At this stage Mr. E. B. Brown entered tho case to represent tho Missions to Seamen and asked that, if relief were granted by his Honour, it should be in the form of an annuity. Decision was reserved. RATHER VAGUE WILL, ADMINISTRATION ASES RULING. A rather vague •will caused the administrator thereof to come t'o the Supreme Court for a ruling yesterday. The action was in the form of an originating summons heard before the Chief Justice (Sir Robert Stout).

The plaintiff in the action was Neil Small, farmer, of Marton, who was the administrator of the estate of. Alexander Cockburn, a deceased farmer, of Marton. The defendants were Alexander David Cockburn and William Cockburn (executors of tho will of Christina Cockburn, deceased), and also tho whole of the children (of Alexander and Christina Cockburn, deceased), who were legatees under the will.

Mr. F. D. Cook, of Marton, appeared for tho plaintiff, Neil Small, while Mr. Martin Chapman, K.C., with him Mr. E 13. Brown, appeared for the sons of the deceased, and Mr. C. B. Morison for the daughters of the deceased. It was set out , that Alexander CockInirn died on January 27, 1892, leaving his wife, Christina Cockburn, an absolute lifo interest in tho whole of his estate, subject only to a diversion in the event of her remarriage. The will, however, was silent as to how the estate was to be disposed of after the death of the wife and deceased thus died intestate regarding such disposition. Robert Cockburn, executor of the will, resigned, and Neil Small was appointed administrator of the estate. In 1905 certain deeds were signed, which still gave the wife a lifo interest in tho estate, but made it nn agreement that, on her death, the property should be divided equally among the twelve children. Christina Cockburn (tho wife) died on December 18, 1910, not haying uiaiiUd again, la Jict avlil sho

made certain gifts to her children nnd bequeathed the residue of her own estate to her sons to be divided among them equally. Certain complications then arose. For in the accounts of the estate of Alexander Cockburn, deceased, duly passed in the year 1892 appeared a claim for .£lOls 10s. allowed to Christina Cockburn for money advanced to her husband and interest. Mrs. Cockburn never received this amount and the question therefore aroso as to whether the sons were entitled to a sum of «£B7O, proceeds of the sale of their mother's furniture or to a third share of the whole of t'lioir fnther's estate (the widow'? portion) and the debt of .£lOls 10?. mentioned. The questions submitted to tho Court were:— 1. Could Neil Small, administrator nf tlio estate of Alexander Cockburn, pay to the executors of Christina Cockburn tho above-mentioned sum of .£lOls 10.-. or any portion thereof .with or without interest? 2. AJexandcr Cockburn having died intestate so far as regards his estate after tho death of Christina Cockburn, could the executors of her will claim one-t'hird or any share in the real and personal estate formerly comprising tho estate of Alexander Cockburn? His Honour heard argument in the cn.se and then expressed the opinion that without upsetting the deeds made in l!) 05 the widow's estate could not get the debt on tho third share of the property menfioned. no granted an adjournment in order that counsel might consider whether tho iCGTO mentioned should alone go to the widow or the case be proceeded WltD,