LAW AND POLICE.

New Zealand Herald, 30 March 1876, Page 3

LAW AND POLICE.

SUPREME COURT.—Is Banco. Wednesday, March 29. [Before His Honor Mr Justice Gillies.] The ordinary weekly sitting in banco was held this morning. Bucholz v. Meyers.—Mr. Eliot Meyer applied for an adjournment in this case, the counsel on the other side being unavoidably absent from Auckland. It was probable the parties, would meet at Kelson, and the matters in difference would be arranged, so that the Court might not be troubled with it at all.—-Adjourned accordingly. Tap 3? v. Purchas and Armstrong (the Onehunga Will case).—This case, the facts of which were detailed in our report of the proceedings of the last Court-day, came on for argument.—William McCutcheon, who died November 3rd, 1565, made a will dated 23rd February, of the same year, by which he left the whole of his property to the defendants to be held by them (in trust) to let, sell, or exchange after his death, for the benefit of his wife and two daughters. The sum of £1 a-week, out of the "profits," was to be paid to his widow during her life, which he left to her with dwelling-house and an acre of land adjoining. The " remainder" was to be applied for the benefit of the two daughters, Mary and Sarah McCutcheon, so long as they should remain members of the United Church of England and Ireland. Either and both were to incur forfeiture in the event of their becoming Roman Catholics or marrying men of the Roman Catholic persuasion, and if either should die without issue, her share was to go to the surviving sister.- If forfeiture should have been incurred by both, or if both should die without issue, then the trustees were to be at liberty to apply the proceeds to some charitable purpose. The questions raised were : (1) Whether, according to the terms of the will, the estate should be divided between the two daughters who had married Protestants and who now had issue—each four children}? (2) Whether the daughters had other than a life interest in the estate ? (3) Whether the terms of the will affected differently tho devise of the real and personal estate.— Mr. Brookfield said he had carefully looked into the authorities to see in what circumstances a right would be raised by implication. The nearest case was Addison v. Busk. The testatrix -in that case,- Mary Tibitha Lee, by her will, after devising her real estate, gave her residuary personal estate, to John Addison and Henry William Busk, upon trust for John Lee, but if in her lifetime he should die without leaving any child or children him surviving, then she directed that the rest of her trust money should be iu trust for the Rev. Charles Lee. John Lee died in her lifetime, but leaving children who claimed to be entitled by " implication." The Master of the Rolls, in that case, said it was impossible for him, in face of the express decision of the authorities, to hold that the children took anything by implication. It was contended, on behalf of the children in that case, that there was no gift of any kind to Charles Lee, unless John Lee should die without children. Charles Lee's interest was postponed for the sake of such children. In " JBx -parte. Rogers" (2 Maddock, 449), the testator gave a legacy in trust for his niece for life, and at her decease without child or children, the principal sum was to go to her sister's child. Sir W. Grant held iu that case that the sister's child took the beaefit of the devise by implication.—His Honor : There is a distinction apparently drawn in some of the decisions between "without issue" and "having no child or children." Have you considered what the nature of that distinction is ?—Mr. Brookfield: I am aware that both phrases are used, but I am not aware of any distinction in any particular case. The case of Addison v. Busk is reported in 14 Beavan. —His Honor: I think it would be very desirable that the Court should know whether the testator left any other issue besides these two daughters.—Mr. Brookfield : I have ascertained that he left three other daughters —-one of these, I am informed, became a Roman Catholic, another married a Roman Catholic, and the other, I believe, continued a Protestaut, but whether a member of the Church of England I cannot at this moment say. But none of these three daughters appeared to take auy benefit under the will.— His Honor : You will find several important cases cited in Fairholt upon "Contingent Remainders." My present opinion is that this bill sheuld be amended, and that the other children should be made parties. There are two cases cited in Fairliolt, to which I would invite your attention, —the one is, " Lamprey v. Blower, and the other, " Ex parte Rodgers." —Mr. Brookfield: I think, looking at the will as it stauds, we must admit that the two daughters, Sarah and Mary, have only a life interest in it.—His Honor: That was very much my own opinion upon a careful perusal of the will. You will perceive that the Courts have generally been unfavourable, where there is real property, to raisiug an estate by implication, or doing anythiug that would affect the rights of the heir-at-law. Here there appears to be no direct gift except to the trustees, and it would be impossible for the Court to give any decision at present which might not affect the interest of the heir unless all the children were brought in as parties. For although the two daughters named in the will have each four children, yet the four children of either might die, and that one would still die without issue, and her share go to the other. It is not impossible that the two might still die without issue, and the position become something in the nature of an intestacy, where the question would turn exclusively upon the rights of the heir. The question raised is a very important one, and the subject matter is very intricate, so that I would not be justified in giving a decision to-day. Indeed I should like to reserve the chief point for the decision of the Court above, so as to have it settled. The Court will sit in May.—Mr. Brookfield: The only objection to it is the question of expense.—His Honor : It would certainly be better for all parties to have the matter decided once for all, rather than that it should afterwards become a subject of litigation between them. —It was ordered, accordingly, that the declaration should be amended, so as to make all the surviving children of the testator parties to the proceedings. Osborne y. Buchanan and others.— Mr. J. B. Russell, for the defendants, made an application under the 408 th rule to dismiss the action on the ground of non-prose-cution by the plaintiff. The declaration had been duly filed, and a demurrer was lodged to it, but no replication was made. Notice was given to the plaintiff that the present application would be made unless the plaintiff proceeded with the action.—"FT™ Honor said if a demurrer had been put in, that fact operated aa a virtual admission of

the facts alleged in the declaration. The defendants would be entitled to have the -questions-^'involved-'in'- the proceeding ..by demurrer argued, and they would be entitled ; to the judgment of the Court upon the points raised. The learned counsel would see the matter " referred to in the case 15 Russell v. Davy, in." Macassey's Reports." TJnder these circumstances, the application could not be granted.—Application refused. . Bankruptcy. Re Clement Wtthefoiud.—A meeting of creditors was held yesterday in this estate. The liabilities were set down at £260. The case is a little remarkable as the first under the new Act (Debtors' and Creditors* Act,* 1575) in which the liquidation resolution and discharge were negatived. - The circumstances in which the cause of bankruptcy originated are also peculiar. The debtor is a tin-worker and ironmonger in Parnell, and he sought the relief of the Act because of his inability to pay the costs of a suit in equity to which he was a party—Bond v. Witheford. Mrs. Mary Bond, under her will, left in trust to Witheford certain real estate for the benefit of her youngest child who should survive her. This land had been conveyed to her' jointly by her husband and Mr, Arthur, who sold the land to the husband in the first instance, the joint conveyance being necessary, in the particular circumstances, to transfer the property. The deed of conveyance set out that the object of the gift was "to make a provision for'the wife," and the question in issue was whether under the deed of conveyance the wife (Mrs. Bond) had acquired a separate estate in the land so conveyed. Acting upon the belief that she had a separate estate in the piece of laud in question, she devised it by will in the manner described. Mr. "Witheford, in his capacity of trustee under the will, supported the will on behalf of the child beneficially interested; but the answer upon the other side was, that Mrs. Bond had acquired only a life interest in the land, aud that upon her death it reverted to the husband and became a portion of his real estate. The facts ofthe will and the devise were not disputed, but only the right of the testatrix to make it. The case was argued at length before Sir George Arney (the late Chief Justice), who gave judgment against the trustee with costs. It appeared also that Messrs. Porter and Co. held a bill of sale over Witheforcls' stock-in-trade, including his personal estate, and they, upon the discovery that the debtor was unable to meet his engagements, enforced their bill of sale. The consequence of their action was, that the estate was divested of assets. Hence the opposition to the debtor. It appeared that of the five creditors who attended, either in person or by attorney, three were willing that the debtor shouJd have his discharge. This gave the majority in number in favour of the bankrupt's discharge. But the Act provides that the discharge can only be had upon a vote of the majority in number, representing three-fourth 3in value. The two dissenting creditors represented the majority of the debts in value, and consequently the discharge was refused.