SUPREME COURT.

Hawera Star, Volume XLIX, 5 December 1929, Page 2

SUPREME COURT.

INTERPRETATION OF WILD An originating summons to determine the interpretation to be placed on the will of the late Eliza Jarvis in con. nection ‘with a legacy granted to Mortimer Troup Jarvis, of Hawera, a minor, came before His Honour Mr Justice MacGregor in the Supreme Court at New Plymouth yesterday. Mr L. A. Taylor appeared for the plaintiff Mortimer Troup Jarvis. Mr A. K. North appeared for one of the residuary legatees, and Mr R. H. Quilliam appeared for the trustees and the other residuary legatee. Mr Taylor submitted that the true interpretation of the legacy, which provided that a sum of £2OO should be paid to his client on his attaining the age of 26 years, was that it was a vested legacy and consequently he became entitled to all the accumulated interest in respect of same, which was a serious matter from his client’s point of view by reason of tho long accumulation. He pointed out that the cases were very conflicting as to exactly what was required to create a. vested legacy and that the court was entitled to consider the will as a whole and that if this 1 was done lie submitted that the conclusion would be that the legacy was vested. Mr Quilliam, for the trustees, submit, ted that the legacy had not vested but was contingent. Mr North, for the remaining residuary legatee, also submitted that the legacy was contingent and that, the line of demaca.tion between the case where a legacy vested and was contingent. was not iwell defined, hut that that if the present legacy was treated as vested it, would mean the end of the rule on the subject. His Honour, after reviewing the facts of the case, said he had come to the conclusion that the legacy was contingent and not vested and that the construction of the legacy was such as to bring it -within the general rnle that -where the bequest was contained merely in the direction to pay the legacy, then in the absence of any bequest apart from the direction to pay, the legacy remained contingent. Applying the cases, he came to the conclusion that the legacy was contingent and made an order to this effect. £ls 15s costs and disbursements were allowed to the plaintiff. The trustees were allowed solicitor’s and client’s costs out of the estate and £lO 10s costs and disbursements were allowed to the residuary legatee. APPEAD PROM HAWERA MAGISTRATE’S DECISION. In September last H. F. Dornauf, of Hawera, milk vendor, commenced an action against David Macvean, formerly of Eltham, but now of Auckland, farmer, claiming a total amount of £33 6s Bd, moneys alleged to be flue to him in respect of his sharemilking contract.. The defendant denied the claim, hut admitted that there was £l6 18s lid balance of milk moneys retained by him and .claimed by way of counterclaim the sum of £3O, being the value of a shed removed from the property, and the sum nf £54, being the proceeds of melons, pumpkins and potatoes wrongfully sold by Dornauf and a further £8 for cow- skins not handed over to him as provided by the agreement. At the hearing the plaintiff Dornauf) abandoned his claim over and above the amount admitted by the defendant. ana toe counterclaim only was proceeded with. At the end of the hearing the magistrate found that the plaintiff Dornauf was entitled to remove the shed, but awarded the defendant (Macvean) the sum of £43. holding that this was the value of the pumpkins, melons and potatoes and skins disposed of or not handed over to the defendant, and that Dornauf had acted wrongly. From this judgment the plaintiff (Dornauf) appealed and the appeal came before Ilis Honour, Mr Justice MacGregor, at New- Plymouth yesterday. Mr A. Chrystal appeared for the appellant, Dornauf, and Mr A. K. North for the defendant, Macvean. Mr Chrystal submitted that the judgment of the magistrate was unfounded on fact, that there was no evidence to support his finding of £43 damages and that the judgment was perverse. He submitted that the magistrate had ignored the evidence and had given judgment for £43 without any evidence to support such a finding. He further submitted that whatever the original position ‘was the defendant had waived any claim to the vegetables sold by his client by reason of continuing the sharemilking agreement without . lodging any complaint as to his claim in this connection for a further period of 12 months.

Mr North, for the defendant, submitted that there was ample evidence to support the magistrate’s finding; that however meagre the evidence as to the value of the vegetables was, there was evidence to support the finding; that Macvean was not in a position to discover the value of the vegetables sold and the best he could do was to state the value as it appeared to him when standing in the paddoclc and that the onus w-as on Dornauf to have proved clearly that he had not sold vegetables to this amount. The fact that Macvean claimed that the value was £54 and Dornauf claimed that- all that the value of the vegetables sold amounted to was £5 or £6. The magistrate, on the facts, was sitting as a jury and it was competent for him to bring in a finding as to the value of the vegetables and that his finding could not be disturbed. On the question of waiver, Mr North submitted that the appellant had never directed his case proving waiver; that the onus was on him to establish that Macvean had waived the wrongful act of Dornauf and that there was no evidence to support. such a finding. It was now too late to raise this argument, which should have been raised at the time. Hsi Honour stated that he had considered the matter carefully and had come to the conclusion that the appeal

must be dismissed. The magistrate was entitled to come to a finding as to the amount of damages on the evidence that -was before him, however meagre,, and that his verdict could not be disturbed. He bad the witnesses before him and was able to form a conclusion from their demeanour as to whom he preferred to believe. It was clear that most of the argument in the lower court had been directed as to the question of the value of the shed, but there was evidence supporting the magistrate’s finding as to the value of the vegetables and he would not disturb this verdict. On the question of waiver His Honour considered that there was nothing in the notes of evidence to suggest that Macvean had waived his rights and that lie could not at this stage conclude that he had. The appeal would be dismissed with costs £9 9s.