WILL CASE

Evening Star, Issue 18392, 28 September 1923, Page 4

WILL CASE

DIVISION OF SHARES,

Hia Honor Mr Justice Sim delivered Is judgment this morning in the case betwea (■lie Perpetual Trustee■> Estate, and Agccy Company of New Zealand, Ltd., and Pic r Duncan (plaintiffs) and Donald IVijht Malloch (defendants). /

At the hearing i\|r J. appeared for the plaintiffs and Mr 1.8. Adams for tho Public Trustee ns tho exentor of the will of the lato Janet Dreacr

In the course of his judgment His Hqor said plaintiffs were the executors of die will of John Malloch. who died on Dcanber 16. 1914. By his will, bearing the 4 to April 6,1909, the testator, after hcqnothing sixty-three shares in the Bank of Nw Zealand to throe of his nephews and n's gold watch and wearing apparel lea nephew, gave ‘he residue of hia estate, bth real and personal, to his trustees ujn trust to sell nail rci.vcrt into money t<> same, and after paying his funeral ad testamentary expenses and tho cost of a-ministr-ring his estate (0 divide the piceeds into cue hundred parts or slum, and dispose of the same u- ;l,e man'ner J forth in the will—namely, by paying retain specified shares to certain specifhi persons and institutions. By a codicil t his will bearing the date January 15, 191* the testator revoked the bequests nr pr< visions in corfain clauses of his will. Aftr making a declaration as to the share of nephew under 11 danse of tho will, th testator in all other respects confirmed hi will.

ills Honor went on to state that tb effort of the codicil was to revoke the gifi of thirty of the one hundred shares ini which tho residuary estate was to k divided, and the question submitted by tb originating summons 'A*- determination km whether or not there was an intestacy is to these thirty shares. Counsel for tie plaintiffs had contended that there war ; ot an intestacy, and that it was dear tint lie tec tat-or in tended that the thirty sores should go to the persons and institiums to whom tho other seventy shares of (he residue were bequeathed by tho rib. Whore n testator made, a residuary burnt of all his persona] estate, tho gcnorabnile was Hi at if a gift of n share of tho redno failed it did not accrue to tho other sires, but wont to the next of kin. A/tor noting several will cases. llis Honor .wJdJiat, each person was to take, a definite epefied share of tho residue, and in order tojivo effect to Mr MacGregor’s argument it wild bo necessary to read tho will as lining directed the"trustees to divide the reskfory estate into seventy parts or shares ins,ad of 100. Thera was certainly nothing mho language of the will or codicil to juafv tho court in doing (hat. and he must 11 d, therefore, that there was an intestacy a to the thirty shares. 'Hie costs of all parties wore ordereeby Hie Honor to lie fixed by tho registrar nil paid out of the fund in question.