Will Case Before Court of Appeal

Horowhenua Chronicle, 22 March 1934, Page 7

Will Case Before Court of Appeal

INTERPRETATION SOUGHT WELLINGTON, Last Night. The Court of Appeal to-day considered an originating summons issued in pursuance of the will of Bert Trcmain, late of Petone, a builder, who died on or about July 22, 1931. Plaintiff was Linda Margaret Trcmain, the wddow, and the Public Trustee was the defendant. Tremain left a will appointing the Public Trustee - as executor and bequeathing the whole of the estate to his wife. At the date of his death he was indebted to the Commercial Bank for an overdraft, for which the bank held a mortgage over two pieces .of land and a life insurance policy in an insurance society, transferred to it. After Tremain’s death the bank did not realise its mortgage over the lands, but in December ,1932, received from the society £515 payable under the policy, and out of this sum discharged the whole of deceased’s liability to it, namely < ,£461. The estate proved was insolvent, there being a deficiency of liability over assets of approximately £5700. Plaintiff claimed that, by virtue of the protection afforded by the Life Insurance Acts, if the policy of insurance had not been transferred to the bank she would have been entitled to receive all the moneys payable in respect of the policy, notwithstanding the existence of unsecured creditors. Furthermore, in consequence of the bank having elected to realise its security over the policy (by which she had almost wholly been deprived of benefit from it), she claimed that she was entitled to marshall the securities held by the bank and require that the proceeds of sale by the Public Trustee of lands formerly held by the bank as security be applied in recouping to her the loss sustained by the bank’s election.

The originating summons asked whether her contentions were correct. The Court reserved its decision.