LAW AND POLICE.

New Zealand Herald, Volume XIII, Issue 4480, 23 March 1876, Page 3

LAW AND POLICE.

SUPREME COURT.—Ik Banco. Wednesday, March 22. [Before His Honor Mr. Justice Gillies.] The ordinary weekly sitting, in banco, was held this morning, and the following business disposed of: — Tapp and others v. Purciias and Armstrong. Will Case.) —This was a friendly suit, brought by consent of all the parties apparently interested, to obtain from the Court a judicial interpretation of the will of James McCutcheon, formerly of Onehunga, who died in the year ISGS, and made uiider his will the following disposition of his property. The will bears date the 23rd of February, 1565, and probate was granted in the month of March following. The defendants were appointed trustees under the will. The deceased (testator) left behind him a widow and two.daughters, who were the only persons entitled under the will to any beneficial interest in his estate. The testator gave all his property, of whatever kind, and wherever situated, I in trust to the defendants, " to have I and to hold, to let, sell, or exchange" the same, and "to apply the profits" in the manner following, after payment of all just debts and funeral expenses : —(1) To pay £1 a-week to his widow as long as she lived; to give to her the use of the house in which the testator was living at the time of making the will, together with an acre of land pertaining thereto, as long as she lived; and the " remainder" for the equal benefit of his two daughters, Sarah and Mary, so long as they should, remain members of the "United Church of England and. Ireland." (2) Provided that if either of the daughters should * marry any person of the Koman Catholic communion, she should be excluded from all participation of benefit under the will, and her share was to become forfeited to the other sister; and if both the daugh-

ters should marry persons of the* .Roman I.Catholic communion, then the whole of the ' property was to be at the disposal of the trustees for " such pious and charitable purposes as to them should seem meet." (3) If either of the daughters died without issue,- the surviving' daughter ; would' be ntitled to her sister.3 "share." The will was proved" on ~ the 24th of March, 1565, and the exact date of the testator's death-was the 3rd of November, 1565, or nine menths after the will bore date. There was no codicil altering or revoking an3 r of the above dispositions. The trustees having performed all the" obligations devolving upon them in virtue of their trust, still hold the real estate, and the trust money in their hands (deposited in the Bank of New Zealand) amounts to £450. The two daughters, by their husbands who are the nonnnal plaintiffs, bring the action to compel the trustees to divide the property between them. All the facts alleged by the plaintiffs are admitted by the defendants, namely, the will, the disposition as set out in terms of the will, and the accumulation of the trust nionej r s to the amount of £450 ; but the defendants say that the will is capable of another interpretation than that put upon it by the plaintifls. They are willing to discharge or be relieved from the trust, but acting under legal advice, they refused to divide the estate or the money without the sanction of the Judge of the Supreme Court; hence all parties agreed to submit the facts to the learned Judge for his opinion.—Mr. Brookfield appeared for the trustees, and Mr. Kissling for the plaintiffs.—Mr. Brookfield stated the i:>osition of the case, as follows :— The question raised by the interpretation of the will was, whether it gave the estate to be divided between the daughters in the manner described. The widow of the testator also died in 1565, so that any question in respect to her rights to participate had disappeared. The two daughters had married, and each had issue four children, so that the question of any failure of issue also disappeared. Both the husbands were members of the Church of England, so auy question of forfeiture was also eliminated. The difficulty, however, lay in the clause of the will, which set out, " I hereby give all my property, &c., &c., in trust to A.8.," to hold, let, sell, exchange, and apply the profits." This appeared to imply that the estate was to be held "in trust" by the defendauts, and the "profits," or increase, to be appropriated to the objects iuteuded by the testator. But the trustees were to apply the "remainder," that is after the provision made for the widow of deceased, for the equal benefit of the two daughters, under the restrictions contained iu the other clauses. But, then, in these clauses it appeared that if either of the daughters should marry a Roman Catholic, or die without issue, then her "share" would be forfeit, or revert to the other. The question was how these words " remainder and " share " were to be interpreted, for they seemed to imply that not "profits" merely, but the proceeds of the realisation of the estate were to be divided, forfeited, or devised, according to the maimer described.—His Honor said the case came before the Court in a rather unusual way, and the course adopted looked as if the parties wished to throw a responsibility upon the Court without taking the ordiuary meaus, by petition, of submitting the case. The trustees might relieve themselves from the trust under the Act of ISG2.—Mr. Kissling said that had been thought of, but brought a decision upon the points in question no nearer. The husbands of the two daughters might be appointed trustees.—His Honor : It is not alleged that there are no other heirs or next of kin. For, looking generally over the will, it appears as if he intended that the provision he made was to be for the life time of the persons named, and then the real estate j would go to the heir and the personalty to thenextof kin. Tliereinaybeatliirdpersonto claim as heir. It is not alleged thattlie testator had no other children.—Mr. Brookfield : I have heard there was a third daughter, and that some of the i>rovisions of the will were made in consequence of sometning she did. —f lis Honor : Either daughter was excluded from all benefit under the will if she ceased to be a member of the Church of England, or if she married a Roman Catholic ; both together were excluded in the like circumstances. Consequently, if the estate were divided between them, either might cease at any time to be a member of the Church of England, and so defeat the express intention of the testator. Or the husband of either might die, and, supposing the estate to bo divided, she might again marry a second husband, who might be a member of the Roman Catholic body. Either, or indeed both, might be guilty of the misfeasauce which, in the view of the testator, disentitled them to share any portion whatever of his property. Was it the inteution of the testator to leave his property in such a way that the parties might act contrary to his express intentions, and yet share the property which was to depart from them if they did those acts. My present opinion is, that the trustees, having regard to the restrictions, arc to share between the two daughters, during their lifetime, all proceeds arising out of the conduct and administration of the estate, which at their death would go to the heir at law and next of kin. Ido not pronounce this opiuion as a judgment, but rather from the view of the case at present before me. I would be glad if learned counsel would, by next court-day, look up the authorities bearing on such a case, and bring the matter on for argument. I think the Court is entitled to all the aid counsel can give before deciding such a matter.— Adjourned till next court-day. Bankruptcy. His Honor sat in bankruptcy jurisdiction this morning, and disposed of the following business :— Re George W. Friend (Deceased). —Mr. E. Meyer applied for an order to examiue A. F. Friend, a son of the bankrupt, who is at present residing and carrying on business in Nelson. The application was made at the previous sitting of the Court, but His Honor was of opinion that, unless some very strong grounds were shewn, it would be a hardship to bring a man a distance of 200 miles in respect of a bankrupt estate in which he might have little or no interest.—Mr, Meyer said that three months before the baukniptcy, the bankrupt sold to his son—whom it was now sought to examine before the supervisors of the estate—about £700 worth of property. About £500 of that amount was given to the son, it was alleged, in payment of wages. The bankrupt, now deceased, was bliud for a considerable period previously to his death, and the son kept all his books, so that, in point of fact, the son was perhaps the only person who could give full aud complete I information as to the position of the estate. | i —Mr. J. B. Russell said the young gentleman was in town only last week, and the i creditors might have examined him if they thought proper, without waiting to apply to the Court to compel him to come baclc from Nelson. —Mr. Meyer : We certainly did not know that he was in town, or we would very gladly have availed ourselves of the opportunity.—Mr. J. B. Russeil: He came up" to attend his father's funeral.—His Honor was of opinion that as no fraud was shewn, and no conduct which would I bring the young man within the penalties of j the Act, the Court would hardly be justified in making an order to compel him to come a distance of over 200 miles, to attend and be examined by the supervisors. He would grant a commission to examine young Mr. Friend, at Nelson. A commission was directed to the- Registrar of the Supreme Court at Nelson, ordering him to make the

requisite examination. Re Saiiuel H. "Webb.—ln this case the bankrupt had come up for his last examination at a previous sitting of the Court, being then actively opposed by Mr. G. S. Graham, for law costs arising out of litigation respecting the block of buildings known as "AVebb's Buildings," Fort-street, which were destroyed-by fire some years ago. —Mr. J". B. Russell now appeared for the debtor, and said that all opposition of every kind had been withdrawn, and he (Mr. Russell) was now the principal creditor, Mr. Devore being the

other, ile asked for the order, declaring that the bankrupt had' passed his last ex- _ animation, and that he bo discharged.— Ordered accordingly. POLICE COURT.— Wednesday. [Before J. M. Daigaviilo and C. McMillan, Es.js , Justices.J DkuNKenness.—Three persons were punished and one discharged with a caution for offences of this character. Vagrant Act.—Anne Crawley pleaded guilty to a breach of this Act by mailing use of obscene language in Chancery-street, within the hearing of persons passing by. Detective Jeffrey stated the facts of the case, and the prisoner was ordered to pay a fine of £1 and costs, or undergo 14 days' imprisonment with hard labour. This was all the busiuess.