LAW AND POLICE.

New Zealand Herald, Volume XVIII, Issue 6063, 23 April 1881, Page 5

LAW AND POLICE.

SUPREME COURT.—Jcdge's Chambers[Before Mr. Justice Richmond.] His Hovjor sat in Chambers and transacted some important business. Land Transfer Act.—ln the matter of the petition of John Goodall and wife and the District Land Registrar of the Northern District of the colony of New Zealand. Mr. E. Hesketh appeared for the petitioners, the Attorney-General for the Registrar. This was a proceeding of considerable public importance. The petitioner, John Goodall, purchased a piece of land from the Auckland Improvement Commissioners, and built thereupon a dwelling- house. Some time afterwards ho removed to Timaru, in the province of Canterbury, where he now resides. Upon leaving Auckland the petitioner, desiring jointly with his wife to make provision for their children, conveyed the property under the Land Transfer Act to F. M. P. Brookfield (barrister-at-law) and Charles Field Goldabro' (M.D.), to hold in trust for the said children. The trustees under this settlement made the usual declaration of trust, but it was found that ,the Registrar could not register a declaration of trust under the Land Transfer Act. The effect of the transfer was to convey the property to the trustees (minus a trust), and a caveat was formally lodged with the Registrar to prevent the sale by the transferees, if they should be disposed to sell. This was done apparently to secure the transferors, seeing that there could be no trust under the Act, and the property was conveyed. It appeared that Mr. Goodall desired to exchange certain lands in Timaru for the land and dwelling in Auckland, and for that purpose the caveat lodged with the Registrar was an impediment. He now, by his counsel, asked the Court to order that the caveat might be withdrawn, and that the Registrar might register the new sale and transfer proposed.—His Honor said that a caveat might be withdrawn. He did not see that there was any duty cast upon the Registrar to refuse to register the conveyance. He would, however, write his judgment, as this was probably the opening ot a series of cases under this Act. Ik bb the Will of William Potter, Deceased.—This was an application to the Court upon petition under the Trustees Relief Act. It has been before the Court on several prior occasions, and as his Honor expressed a doubt as to the power of the Court in this proceeding to deal with the questicn raised respecting the decree to Mary Chappell, one of the testator's daughters, the argument was now limited to the two other questions raised under the petition.—Mr. E. Hesketh appeared for the trustees under the will; Mr. Theo. Cooper appeared for the widow.—Mr. Hesketh reaa the petition under which it appears that certain Bank of New Zealand shares were given to the trustees upon trust to pay the income to the .widow, on condition that she supported, maintained, and educated the three youngest of the testator's children. He said that practically these children were named in the will, and were the three youngest at the date of the will, there having been two born since the will was made.—His Honor said there did not appear much difficulty about this ! point, which .was the.first raised under the i petition. He Sid not think it necessary to ■; put the parties to the expense of obtaining a guardian ad litem, which would be necessary to get the parties properly before the Court. It appeared to him quite .clear that the three youngest children at the date of the will were the persona, designates by the will. Mr. Hesketh could . confine himself to the question affecting the widow's interest.— Mr. Hesketh, contended that the words "on condition" raised a trust in the widow for the children, and that the trustees were bound to see that that trust was carried into effect. He quoted authorities to show that the trustees had a discretionary power, and if they thought the widow was not maintaining the children properly, they could stop the payments to the widow. He would not, however, contend that the widow was entirely without interest in the fund. He asked the Court to decide the second prayer of the petition, which was "That your Honor may declare whether the trustees are bound to pay the whole of the said income to the widow irrespective of the manner in which she applies the same, and if the trustees are dissatisfied vith her application, whether they can retain and apply the whole or what part thereof towards the maintenance of the children, the objects of the trust." He submitted that this should be decided in favour of the trustees. —Mr. Cooper submitted that the testator's intention was that his wife should have the application of the fund ; that it should be paid to her by the trustees, and she only had the discretionary power as to how it should be applied. He! quoted authorities to show that the fund in reality belonged to her, coupled only with an obligation to maintain the three children of the deceased so loug as they were living under age, but that she took a life interest in the income. He contended that the trustees were seeking to have judicial functions granted to them, and the powers of the Court delegated to them. The widow had a right to have the whole income paid to her, and the trustees had no power to withhold any portion of it. The Court alone possessed such a power. —Mr. HesUeth replied.—His Honor said he had already expressed an opinion on the first question raised. As to the payments to the widow, tho matter was of more difficulty ; but he thought the trustees were bound to pay the whole of the income to her, and that she had to support the three children. He did not think the trustees had any discretion as to withholding payment, and thst the Court was the authority to decide if the widow was misapplying it. There did not appear to be any suggestion ot misconduct on the widow's part. He would, however, take time to consider the authorities quoted, and would give his opinion in writing.