SUPREME COURT.-IN CHAMBERS.

Evening Star, Issue 11168, 17 February 1900, Page 8

SUPREME COURT.-IN CHAMBERS.

Friday, February 16,

{Before Hia Honor Me Justice Willunvi.) The New Zealaud Agricultural Compxuy, Lunited v. Larnach.—Summons for security for costa (Mr Solomon).—Order accordingly.

Re Robert Findlay (deceased) —Motion mr remuneration to executor (Mr Finch) Order accordingly; report of regi trar approved.

Aitchiaon v. the Kaitaogxta Railway and Coal Company. Summons for discovery of ’ocuments (Mr James).—Accordingly ; affid 'o '•* midi. ' Ra New Zealand Dairy Farmers’ Co-opera-LiVu (iompuiiy, Li mi luu. Motion Jur !• avto official liquidators lo pass their final account (Mr VVoodhou-e). —Accordingly, L’e v. Lee (divorce) —Motion to°tettle questions of fact (Mr Solomon).— Accordingly.

Probate. Probate was granted in the following cases:—Rs John Hartlev (Mr Payne, solicitor), Robert Muir (Mr Finch). Elizabeth Condon (Mr Gallaway), James Elder Brown (Mr D. Reid), John Burns (Mr Hosking), Christina Fletcher (Mr Hanlon), Thomas Dick (Mr Webb). Letters of Administration.—Administration was granted in the following estates : Re Georgina Olson (Mr James), James Fahey (Mr D. Reid), Bridget Cotter (Mr W. C. MacGregor), and Archibald Livingstone. D. J. Larnach v. Sievwright and another. —Motion for settlement of costs (Mr W. C. Macgregor for plaintiff, and Mr F. R. Chapman and Mr A. James for .defendants). —Costs on the highest scale, as if £2,000 claimed, £lO 10s for second day; disbursements and witnesses’ expenses to be fixed by registrar ; £lO 10s from plaintiff coots of trustees.

C. S. Larnach v. Sievwright and others ; D. G. Larnach v. Sievwright and others; and Inder v. Sievwright and others.—Question of costs (Mr Solomon and Mr Gallaway for plaintiffs, and Mr Sim and Mr Woodhouse for defendants).—Costs of trustees (£ls 15s) to be paid out of trust estate by consent; order for payment of coats ; administrator entitled to hia costs of defending action ont of estate, as part of the costa of administration. Costs on judgment as if £6,000 claimed; disbursements and witnesses’ expenses ; second counsel, £8 8;; two extra days at £ls 15s a day. Re William Downie Stewart (deceased). — Writ of summons to decide who is liable to pay mortgage tax in respect of £5,000 sot apart by the testator to provide an annuity of £250 per annum. Mr Payne appeared for the trustees of the will, Mr Sim for Mrs Stewart, and Mr Wood bouse for the residuary legatees.—By the will the testator, after bequeathing some specific and pecuniary legacies, devised all his real property and bequeathed the residue of his personal properly to trustees upon trust to sell and convert the same into money, and to invest the proceeds upon first mortgages of land in New Zealand or in the Australian colonies, or in other specified investments, and out -of the annual income thereof to pay to bis wife, if and so long as ahe should continue a widow, yearly tbe sum of £250, and the testator declared that his trustees should within one year after his death set apart what was in their opinion a sufficient part °f_ the trust moneys, not exceeding £5,000, to provide the said yearly sum of £250; and he declared that if the

income of the sum so sot apart proved insufficient for the payment of the annuity the capital of the appropriated fund might ba resorted to to make up the amount. After the testator’s death the trustees set apart mortgagee to tho amount of £5,000 for the purpose of paying out of the income thereof the annuity bequeathed to the widow. The trustees having to pay the land tax, deducted the tax, and paid it out of the annuity. To this the widow objected, and ’he trustees brought the matter before the C turtby an originatingsummons.—The argumcnI', 1 ', which occupied a considerable amount of time, dealt largely with the construction of various Land and Income Assessment Ac;t«.—His Honor, in giving judgment, said ; I think there is a distinction between this case and the case where a life interest in a fund is given. Where a life interest in a fund is given, the tax would be payable by the tenant for life. That, however, is not so in this case. Here there is an annual charge on the fund, which extends not only to the interest, but also to tile capital. No duly is payable on the charge, qua charge ; but duty is payable on tho mortgages ihemselves. Mrs Stewart is entitled to £250 a year clear. If it cannot be got out of the • state, then it must bo got out of the capital. The trustees have to pay the mortgage tax, and they are entitled to take the mortgage tax out of the fund, which is subject to i he tax; but there is no reason why they should do that at the expense of Mrs Stewart’s income. Mrs S.cwart. therefore, is entitled to the net sum of £250 per annum. The trustees are entitled to charge against the fund which they have sot apart for any outgoing which they may have to pay. Bat they are not entitled to take this outgoing out of the funds of tho general estate, but out of the £5,000 only which has been set apart. The answers to tho questions will therefore be : (1) Whether the truitoes are entitled to deduct the tax on the mortgagee ? entitled to pay si.oh tax out of the capital or ’he surplus income of the £5,000!—" Yes.” (0) Whether the tax is payable out of the general estate ?-" No.” (jests of all parties to he taxed by tho registrar and paid out of the general estate.