THE GILMER ESTATE

Evening Post, Volume CII, Issue 35, 10 August 1921, Page 6

THE GILMER ESTATE

INTERPRETATION OF THE WILL.

A in the will of the ]ate Hamilton Gilmer relating to a bequest to Mrs. Ziele formed the subject of an action between the Public Trustee 'and Hamilton Andrew Hugh Gilmer and. others, heard in Banco by the ActingChief Justice, Mr. Justice Sim, oh 4th August, for the determination of its effect. Judgment was delivered by his Honour this morning. The share of the estate bequeathed to Mrs. Ziele, it was 1 stated in the will, " shall not vest ab«olutely in her, but shall be retained by my custodian trustee (the plaintiff) " upon certain trusts. These were that the income only from the share was to ba paid to her, unless and until she became involved in any default through whicv such income would, but for this provision, become payable to or charged in favour of any other person or persons or corporation. In such case, '"such share arid the income thereof, shall go and accrue to the: shares or shares" of the other children. The Court was asked to determine (a) whether the capital or onl^ the income thereof during the lifetime of Mrs.'Ziele went to the survivors of the other children in the ovent of failure of tha trust; (b) whether Mrs. Ziele had a vested and transmissible estate in her iihare of the estate, subject only to the capital and income (or capital or. in-l come) of her share going over to the other children in the event of such failure. His Honour said that there was no' dispute as to the first' question; both capital and income went to the othei 1 children if the trust, failed. As to the eecond question, his Honour, having traversed arguments of counsel, stated .that the will made an absolute bequest of a •share, to each of the children, and tha subsequent provision relating-to the transfer of Mrs. Ziele's share did not diminish her interest: in it, but merely modified , and limited her enjoyment of it during'her lifetime. The testator did not declare that the share given to her was not, to • vest in. her at ■ all, out: that it was "not to vest in her absolutely. Mrs. Ziele took a vested and transmissible estate in her share, subject only to the capital arid income of her'share going over to the survivors of : the testator's other. children in case of the failure or determination of the . trusts ', expressed. The costs of the parties must he paid out of the estate.,

■Mr. P.. B. Cooke, appeared for the plaintiff; Mr. Rothenburg for the defendants, H. A. H. Gilmer and S. H. Gilmer; Mr. Buddie for the estate 1 of the'late Knox Gilmer; Mr. Myers for the defendant/Mrs. Herbert; and Mr. A. Gray, K.C., with Mr. Kennedy, for the defendant Mrs. ~Zi'el«. .■■■-.