SUPREME COURT.

Evening Post, Volume LXXIX, Issue 68, 22 March 1910, Page 8

SUPREME COURT.

RESERVED JUDGMENTS. INTERPRETATION OF A WILL. The Chief Justice, Sir Robert Stout, delivered judgment in the case of Alfred John Litchfield and others, v. Charles Manby Walker and others — an originating summons. The case concerned the construction of the will of Thomas Carter, sheepfarmer, Marlborough, who died on the 27th March, 1900, leaving real and personal estate valued at over £149,000. His will provided that after making provision for his wife and adopted daughter, the remainder of the income was to be divided amongst certain grandchildren : — Those born in testator's lifetime and still alive ; those born in testator's lifetime and now dead ; and those grandchildren born since the death of testator. The question for the decision of the court was whether the representatives of the deceased's grandchildren were entitled to a share in the income ■; and whether tne grandchildren born since testator's death also were entitled to a share in the income. Regarding the grandchildren born after the death of the testator, His Honour said f&at the decision in the Crossland v. Hrtlliday case seemed conclusive on the points raised in this case. There it was held that a gift of income to children of a sister was confined to the children born at the date of testator's death. "I am, therefore, of the opinion," said his Honour, "that these three grandchildren cannot take, as they were not grandchildren at the date of testator's death. The construction of the will lent no assistance to a contrary interpretation." The other point raised was whether the representatives of the grandchildren who were alive at testator's death, but have died subsequently, could claim the shares that would have gone to the deceased if they had lived. His Honour considered that they were so entitled. Costs are to be allowed the parties out of the income, and are to be fixed by the Registrar. • Mr. A. W. Blair appeared for the trustees. Li f «fefield and others and Mr. R. M'Callum (Bieiiheim). appointed by the court, for the representatives of the grandchildren born in testator's lifetime and still alive. Mr. J. L. Stout, representing the Public Trustee, appeared for the representatives of the grandchildren born in testator's lifetime, and since dead: Mr. T. F. Martin appeared for the representatives of those grandchildren born sinoe the death of testator. ENCROACHMENT ON WINGFIELD STREET. THE CORPORATION SUCCEEDS. The Chief Justice also delivered judg.ment in tho case brought by the Wellington Corporation as plaintiffs against Italia Corich and the Government Insurance Commissioner, defendants. The plaintiffs claimed that the defendant, Italia Corich, was in possession of part •of Wingfield-street. At the west end the encroachment was said to be 2ft lOin, and on the eastern boundary about 3ft. The question to be decided was -whether the. defendant was entitled to the loud, or whether the court must declare it a part of Wingfield-street. Italia Corich was the owner, and the I 'Government Insurance Department the mortgagee. Plaintiffs claimed that a portion of the north end of the section was wrongly included in the certificate of title. For the defence, it was contended, inter' alia, that the street was uot a public street vested in the corporation, and that the fence enclosing the land was ou the correct boundary. " It was stated by Mr. T. F. Martin, -who," with Mr. O'Shea, appeared xor "the plaintiff, that in 1058 or a. year later the piece of land (two town acres) -was- cut up for sale. The owner dedicated 15ft each out of the sections to •Jlrbvjde for a 30ft road. The street was •jacbually only 29ft 4in wide. * In a lengthy judgment, his Honour "narrowed the dispute down to this : Is Wingfield-street to be deemed the piece of land, that was set apart as a street by the owners of the sections when they .v. - ere cut up and sold? '■' The defence contended that Wingfieldstreet did not become a public btreet till 1867, or in 1868, after the Municipal 'Corporations Act came into force, and that it was only then that the corporation accepted the of Wing-field-street. If this were so,, said his Honour, the question would be : What was the dedication that was accepted? Was it not a dedication of land set out on the ground by the original owners. Ati the lime of the acceptance of the street, iii 1868. asMimiug that that was the date that the dedication was accepted (it might well be that the dedication ■was complete in 1859). it could not be said that the persons who had fenced in the land were other than trespassers on this piece, for the true owners had not given them any title to it. In the court's opinion the unauthorised trespass on the piece of land offered for a street could not interfere with the offer of the owners of the land for the street, nor with the acceptance of that offer. His Honour took the view that if the dedication was not complete until 1868, still it must have reference to what was offered to be dedicated. In conclusJc - , the court held that the corporation \tz~s entitled to the land in dispute, as having been part of a street. Judgment was entered for plaintiffs, with costs according to scale as if £200 --had been claimed, witness's expenses and disbursements, and fee for second counsel. Mr. Martin Chapman, X.C, appeared for the District- Land Registrar, Messrs R. C. Kirk and E. Levvey for the defendant Corich, Mr. Kirk also appearing for the Government In.»urance Commissioner, i