TESTAMENTARY POWERS OF MAORIS.

Evening Post, Volume LXIV, Issue 141, 11 December 1902, Page 5

TESTAMENTARY POWERS OF MAORIS.

The question of whether the Maori Lands Administration Act of 1900 take» from the Maoris the power to alienate, their lanM by will was decided by the Chief Justice this morning in the matter ■ of the will of Te Hiwi Pihama. Tha point was argued yesterday by Mr. Quick for the applicants for probate, and Mr. Menteath for the children excluded by the will. His Honour, in the courss of his judgment, said that before such a great alteration of the law as the deprivation of Maori owners of testamentary powers over their land could be assumed, } the'enacting provision must be clear and definite. Section 45 said : "Except as j>rovided by this Act no Maori owners shall alienate, charge, or otherwise dispose of his interest in any Maori land, or in the income thereof." The word alienate would no dflubt include a devise by] will, and when applied to land, that was, imcases in which native land was declared inalienable, a devise was held to be prohibited. They must look, however, to Uie statute in which this word appeared. The objects of the statute were stated ia the preamble, and the prohibition of ex* erasing a testamentary power could hardly be said to be a means of accomplish 1 ing any of these aims. If, however, the prohibition was clear, it would not' be controlled by the preamble. A dispositioa by will, however, was not expressly mentioned in the words " 'alienation,' and all references thereto include^ sale, lease, mortgage, charge, lien, encumbrance, contrad, exchange, and every other disposition, absolute or limited," and his Honour did not think it should be implied from the general words "every other definition." They should be. read as meaning alienation of a kind previously mentioned. Further, the restriction on alienation, il a Maori is a sole owner of a parcel oi land, is only till a "papakainga" certificate is issued certifying that lie has land suitable for hia support, etc. There is no need for such a certificate in the case of a Maori making a will. Further, thera were many provisions of statutes unrepealed that would, were the interpretation put on section 45 by the respondent held to be correct, be impliedly repealed, and implied repeals were never favoured. There was no need to take away, tha ■power of testamentary disposition to preserve the land to the Maoris, as by section 46 of the Native Land Court Act, 1#894,1 # 894, if land is devised away from successors according to Maori custom, tha Court may modify the will and gijint tha land to successors unprovided for by the will. His Honour was therefore ot opinion that the testamentary power of Maoris was not meant to be taken away by the Act of 1900, and a Maori owneic could, notwithstanding section 45, niuke a valid devise of his lands. '