LAW AND POLICE.

New Zealand Herald, Volume XVI, Issue 5494, 26 June 1879, Page 6

LAW AND POLICE.

• SUPREME COURT.—In Banco. [Before Mr. Justice Gillies.] Wednesday, June 25, 1879. His Honor took his seat on the bench at 10 o'clock. Ceaw v. Knigut (Demurker). —Mr. E. Heaketh for the plaintiff; Mr. Tyler, instructed by Mr. Cooper, for the defendant. This was a demurrer to the defendant's plea. The action was brought by the widow of a deceased partner for an account of the partnership estate at the timo of her late husband's death from the surviving partner ; also, an account of his dealing with the estate since her hnsband's death ; and she prayed that the balance —after payment of the partnership liabilities upon her husband's share—should be paid to her. The facts are as follow :— Robert Craw, thehusbandoftheplaintiff, was a member of. the firm of Craw, Knight and Co., asphalters, carrying on business under the name o£ Craw and Knight, in Auckland. On the 3rd of October, 1877, the firm entered into a contract with the corporation to do a large amount of asphalt work in the city. Robert Craw died on the 11th of October, 1877, leaving by will " the whole of his personal property," after payment of funeral and testamentary expenses, to his widow,

1 the plaintiff in the present action. By a second clause in the will, the «• partnership share" in the asphalting business was left to Robert Brown Craw, his eldest son, subject, however, to a charge of £3 a-week, payable by the son to hia mother. There were several children who came in with the widow as interested under the will. The partnership business was carried on in accordance with disposition made by the will, from the decease of the testator to the 14th of Jannary, 1878, the widow receiving £3 a-week. But at the latter date her son denied that he accepted thelegacy, and his mother, the present plaintiff, released him from any further payment. The son thereupon disclaimed and renounced, in favour of his mother, the bequest of the partnership share, subject to this weekly charge of £3, and the principal contention arose out of the effect of this disclaimer and renunciation. Upon the facts set out in the declaration, it was contended by Mr. Hesketh that the plaintiff had a right to the account sued for. The defendant's couneel (Mr. Tyler), on the other hand, set out the will of the deceased as a plea, and contended that the effect of the renunciation by the son, as residuary legatee, brought the interest in the partnership estate under the Statute of Distributions, and made it divisible amongst the next of kin.—Mr. Hesketh said the setting-out; the will as a plea was no answer to the action. Under the first clause of the will, the whole of the personalty was left to the widow ; by the second clause, the partnership share was left to the son, upon the condition of hia paying £3 a-week to his mother. But, by his renunciation, he gave her the partnership.—His Honor: Renouncing a thing is not giving it. It leaves the thing where_ it was. There was also a question upon which the court had a right to be fully informed—viz., whether the plaintiff was suing in her own right or as executrix under the will. She could not sue in both capacities, for it was clearly contrary to the rules of the court that a claim made as a right and a claim made as executor should be joined.—Mr. Hesketh : She sues in her own right. The plaintiff came in as legatee nnder the clause which left the whole of the personalty to her. But the will left the partnership estate to the son, upon the condition that he paid her £3 a-week. He said, " I will give this partnership estate to my mother." This he had a perfect right to do.—His Honor: He renounces the bequest for himself. He will have nothing to do with it. He will not accept, or he will not accept it with the condition of paying £3 for it. Mr. Hesketh: But he " renounces in favour of his mother." In effect, he gives it to bis mother, either because he will not pay £3, or otherwise. But, there was an assent on the part of the executors that she should become possessed of this partnership share, and the surviving partner had agreed to take her into the partnership. With the assent of the executors she became poasessed of the legacy, and by agreement to be taken into the partnership she became possessed of an interest. On both grounds she would be entitled to bring an action for an account. Mr. Tyler said (in snpport of the plea) that the setting out the will as a plea, was an answer to the action. For it would appear that the will was inconsistent with itself. The first clause left the "whole of the personalty" to the plaintiff; the second clause (after the whole of the personalty had been disposed of) left a part of it to the son. This was an inconsistency. Where a will was inconsistent with itself, the courts had held there was no will.—His Honor: The courts will not favonr an intestacy where there is a possibility of interpreting the will in accordance with the intention of the testator, if that intention can be gathered from the instrument itself. There does not appear to me to be such an inconsistency here as would amount to contradiction in terms. The testator may be taken to have contemplated leaving the whole of the personalty to his widow, and at the same time leave her an interest in a partnership business which was left to another. In this case, that other is the son, and the interest is £3 a-week. Mr. Tyler: With regard to the main contention on the other side, "that the renunciation by the son gave the plaintiff the partnership estate," and consequently the right to bring au .action for an account. But the disclaimer and renunciation of the legacy by the son had the effect of reverting the partnership estate into the whole personalty, and into the hands of the executors. It became divisible under the Statute of Distributions amongst the next of kin.—Hia Honour said he would take time to consider his judgment. Bankruptcy. Rk James Berguan.—Mr. Dufaur appeared for the debtor. The bankrupt came up for his discharge. The learned counsel stated that the applicant had been adjudicated a bankrupt at the suit of the National Bank, the principal creditor. On the 22nd of August he filed a statement of his assets and liabilities, the particulars of which havo been already published. The first meeting of creditors was duly gazetted, but no creditors appeared, and Mr. Thomas Macffarlane was appointed by the Registrar of the Supreme Court trustee to get in the estate. The trustee brought up his report, and no opposition was made to the order of discbarge by the trustee or the principal creditor. Mr. Dufaur said he made the application under the lOSth section of the Act. The necessary notices and affidavits had been filed. Hie Honor said the papers seemed to be perfectly regular, and made the order discharging the debtor from bis liabilities.