SUPREME COURT.

Hawera Star, Volume XLVIII, 22 August 1924, Page 6

SUPREME COURT.

TERMS OF A WILL, VARIATION ASKED FOR, application wa s made before the Chief Justice, Sir Robert Stout, in tile Upi^ nie I Co , urt ’ ® evr Rlynioutn, under the family Protection Act, *or a variation of the terms of the will of Eliza J arms (deceased;. The apolic-inon was made by Mrs Mary Ann Maddock a daughter of the testatrix, for whom \ rr 1 • vuilliam appeared. Mr L A. laylor appeared for James Glashan Jams Mr A. A. Bennett for Mrs Harriet Evelyn Watts and her son lan George, and Mr F. E. Wilson, for the trustee under the will. Mr IJiiiliiam said the testatrix had live children, one of whom had predeceased her, and the will left the property, but not in equal shares., to the lour remaining children and to two grandchildren and to the Presbyterian Uiurch in several different forms. The V,!f estate was worth about i-oUUO. Hie different legacies were charged upon separate properties. Mrs ilJ l d lett the interest on idOUO lor her lifetime. She had two children, who were 13 and 14 years old lespeetively. She had 'been in difficult circumstances lor some time, her husband having had a long illness nrior to ms death, which took place prior to Lie death of the testatrix and to the making of her will, and she must have know n of all these circumstances when making the will. Plaintiff was about 40 years of age, and was in indifferent health because she had hacl to work to help earn a Jiving for herself and children. She received a widow’s pension amounting to £4 17s 6d a month, but that wouJd be reduced in a few months when the eldest child reached Lie age of fourteen and cease when the second child reached that • age Her medical adviser had stated that her strength was being overtaxed and her health undermined and he strongly advised a less strenuous life than she at present had to lead if she was not soon to become a permanent invalid. He also said that her children needed more of her care and attention than they were receiving. Two of the grandchildren of the testatrix hacl received Sl e l /vi e 6 a aies under the will and a sum of £I4OO had been bequeathed to the 4 lesbyterian Church, who also took the i esidue of the estateunder the will. It that in an estate worth .-11000 this amount ivas too much for the church for a family of this kind, and the. church was in fact ashamed to.take its share.

Mr laylor submitted a pronosal for the purchase of the freehold of the homestead farm at Fraser Road, a devised property under the will, by his client, conditionally upon £IOOO of the bequest to the church being transferred to Mrs Maddock, ivho should lend it to him on second mortgage on the farm lor a term of five years at 6 per cent, interest. If this wsvs done his son was prepared to forego his beauest under the .wall, and he thought the bequest to Mrs Matts’ Son might be forfeited to make up the amount necessary to arrange the purchase of the farm, Mr Bennett agreed with the other parties in the case that some assistance should be given to Mrs Maddock, but suggested it should come from the legacy to the church without- disturbing those to his clients. Mr V ilson said the trustee would submit to the order of the court. He pointed out that the assets’ in the estate, had been created by the whole family, who were entitled to share in them. All the family felt that the church had been prepared for at the expense of the children. His Honor asked Mr Bennett and Mr Taylor to put their proposals in writing, and they agreed to do so. Mr Quilliam said that although he had opposed the matter being adjourned, he felt lie would have to ask for time to consider Mr Taylor’s proposal in order to satisfy his client- that the security offered was a good and safe 0119. His Honor said he would undertake to give a. special fixture in October or November, and the parties agreed to an adjournment as suggested. BANKRUPTS DISCHARGED. Francis William Shackleton, soap manufacturer, Hawera (Mr R. H. Quilliam;, and Donald Alexander Dickson, drover, Stratford (Mr F. F<. Wilson), were granted discharge from b an k ruptcy.—Hera Id. AN IMPORTANT CASE. OWNERSHIP OF MILKING PLANT. CHATTEL OR, FREEHOLD. A case of some importance to Taranaki was argued in the Supreme Court at New Plymouth before his Honor the Chief Justice, Sir Robert Stout, respecting the ownership of a milking plant in a bankrupt estate, the question being whether the plant was a fixture to the freehold and passed to the mortgagee, or whether it was a chattel, and in the bankrupt estate became part of the estate. The case referred to the property of Thomas A. Bridge, of Mauaia, farmer, who went bankrupt-on June 26, 1924. Mr P. O’Dea appeared for the D.0.A., Mr J. Houston for the Loan and Mercantile Agency Co. (second mortgagee) and Mrs M. Sexton (third mortgagee), and Mr L. A. Tavlor for Miss Bridge (fourth mortgagee). The first mortgagee (the Public Trustee) was not represented. Mr O Dea said the case was one of great importance in Taranaki, where mortgagors w r ere walking off farms and the question of the ownership of the milking plant was in dispute.' In this particular case the engine was bolted down to a concrete foundation, which was sunk slightly in the ground, and it was attached to the milking machine simply by the driving belt. He said it "'as complicated by the fact that two decisions had been given—one by Mr Justice Stringer and the other by Mr Justice Sahnond—in which there seemed to be a conflict of opinion, but he thought they were distinguishable on account of the fact that in one case the matter was as between landlord and tenant and the plant was treated as chattels, and in the other it was a matter between mortgagee and mortgagor, and the plant bad been held to be part of the freehold. . tlie case was one of the utmost importance to the whole Dominion, it was agreed, on his Honor’s suggestion, to allow it to be removed to the Court of Appeal, and an order was made accordingly. the question of costs beinoreserved. n Jhe Appeal Court sits in Wellington on Septemher 29.