LEGAL CONUNDRUM.

New Zealand Herald, Volume LIII, Issue 16408, 9 December 1916, Page 7

LEGAL CONUNDRUM.

TWO WILLS AND A FIRE.

CLAIM FOR INSURANCE.

PLAINTIFF'S CASE FAILS.

L NCSUaI legal problems were dealt with in a judgment delivered by His Honor Mr. Justice Ilosking at the Supreme Court yesterday in connection with a claim for the recovery cf £75 from the estate of a deceased person. The plaintiff was Catherine L'athcart (Mr. 51. J. McGregor), wife of John Calhrart, of Onewhero, farmer, and the defendants John Edmund Geraghty, of Onewhero, and Lawrence Geraghty, of Manurewa (Mr. H. 11. Ostler), farmers, executors in the estate o'f the late Lawrence Geraghty.

Death in Burning House. 1 he, facts as outlined at the hearing of the case were that Lawrence Geraghtv the cider, of Onehunga, made a will, dated September 12, 1839, in which he gave and bequeathed to his nephew, Lawrence ( leraghtv the younger, a section at- Oncliunga. for the term of his natural life, and after his decease to the plaintiff, then Catherine Geraghty, daughter of Lawrence Geraghty the younger. On June 20, 1904. the house on the land fit- Onehunga, in which Lawrence (leraghtv tho elder was living, was practically destroyed by fire, his charred body being found in a bedroom. A sum of £75 was recovered bv Lawrence Geraghty the voiinger in insurant e moneys. In 1907, tlio land at Onehunga was sold, and when the purchase price was handed oyer to the plaintiff 110 mention was made «f the firu insurance money. Since then Lawrence Geraghty the younger has died, and claim lor tho £75 was now made against his estate. Plaintiff's Interest. It was argued by counsel for plaintiff that after tiie. death of Lawrence Geraghty the younger the house and land at. Onehunga was to revert to the plaintiff, The former had an interest in the place only during his lifetime. As the house had been burnt down, the fire insurance money should rightly go to the plaintiff, in lieu of the house. Counsel for the defendants contended that the fire took place before the death of Lawrence Geraghty the elder, and therefore the insurance money became part of his residuary estate, which was bequeathed to Lawrence Geraghty the younger, 'lho insurance money, therefore, became part of the latter'? personal estate, against which tho plaintiff had no claim.

Moment of Death Not Proved. Tn his judgment His Honor held that the plaintiff was not entitled to recover the £75. If she acquired any rights' whatever in respect of the insurance ■ moneys the onus was upon her to estab-! lish that the testator survived the attachment of the policies to the loss incurred by the fire. This she had failed to do. I "One may conjecture," said His Honor,] " that the testator was probably dead be- i fore the fire had destroyed the house to an extent equivalent to the amount re- ] coverable under the policies, but there is no circumstance stated which one can lay hold of to convert that conjecture into a reasonable inference of fact. In a question of succession turning upon the survivorship of some person bevond a given point of time, those whose title as against the next-of-kin or residuary legatee depends on the fact of the survivorship must prove the fact. It is on them thattho onus of proof lies, and if there is no affirmative proof their claim fails. Judgment will be given for the defendants, with costs."