RESERVED JUDGMENTS.

New Zealand Herald, Volume LVIII, Issue 17776, 9 May 1921, Page 6

RESERVED JUDGMENTS.

SUPREME COURT ACTIONS.

MVERHEAD LAND CASE.

A number of reserved judgments -were delivered by Mr. Justice Adams in ths Supreme Court on Saturday. In the case in -which the executor and trustees of the -will of the late Thomas William Deacon, hotelkeper, formerly of Riverhead, sought a. decision as to whether two of the beneficiaries under the -will were entitled to receive a greater area, of land than that allotted to them under tha will, the dispute centred round the shares of Mary Kinioch and Arthur Deacon. The plaintiff was Richard Percival Kinioch '(Mr* Richmond) and the beneficiaries, to the number of seven, represented by five counsel, were as follows:—Mrs. Blanche Brigham and Mrs. Grace Tallinbrass (Mr. S. L. Paterson). the Public Trustee as the executor of the will of Mabel Thomasine Cahill (Mr. Meredith). Mary Kinioch, wife of plaintiff (Mr. A. E. Skeiton), Mrs. Sarah Griffin Mr. Osburne Lilly), Arthur Deacon (Mr. McVeagh), and Francis Deacon (unrepre >ented\-

The testator, who died in May, 1919, fivided his property at Kumeu and Biverlead between the members of bis family, index a will made in 1916. Mary Kinloch was left ■with " approximately 44 acres," and Arthur Deacon with "my 30 acres adjoining the Matua Estate." The former made claim to SO acres-of land situated at Kumeu, whereas other beneficiaries contended that she was entitled to only 44 acres under the terms of tbe will. Arthur Deacon, who had made claim to 44 acres adjoining the Matua Estate, should, according to other beneficiaries, only receive 30 acres. It was contended by the parties interested that the testator, in framing the will, had tn his mind not so much the actual areas as particular blocks of land contained within certain boundaries. His Honor said that upon the true construction of the will the defendant, Arthur Deacon, entitled to the whole of tbe piece of land belonging to the testator adjoining the Matua Estate and situated between the Matua Road and the Government railway, containing -*4 acres and 23 perches. The defendant, Mary Kinloch, was entitled to the whole piece of land situated at Kumeu containing 50 acres 2 roods 10 perches, as shown on tbe plan. The remaining portion of the block containing over six acres and separated from the 50 acres by a creek, had valuable buildings upon it. Mrs. Kinloch, by her counsel, had very properly asreed that this should not be considered as passing to her under the wilL The costs of all parties as between solicitor and client were ordered to be taxed by the registrar, and paid out of the estate

WATERSIDERS' FEDERATION. % ACTION FOP. NEW TRIAL FAILS. The application for an order removing into the Court of Appeal a notice of motion for a new trial in the case of Henry Green (Mr. Fleming) v. the New Zealand Waterside Workers' Federation (Mr. CaMll), was dismissed. The original action was heard last October, when a verdict was given for the plaintiff. The defendant filed notice of motion for a new trial on the ground that the Judge rejected evidence tendered by the defendant to show that the plaintiff had been guilty of conduct which the jury might rightly have regarded as destroying - his credit and reputation, and evidence which would show that the plaintiff would at most- have' been entitled to nominal damages, and did not allow counsel to cross-examine the plaintiff and his witnesses on matters going directly to'their credit and to the measure of damages. His Honor, in giving judgment, said the power to remove notices of motion into the Court of Appeal was discretionary. Before making such an order in any case the Court should be satisfied that some important or dimcult question of law or fact was involved,, and that no injury would be done to the other party to the action, or that for some other sufficient reason the order should be made. He was not so satisfied in this case. The questions raised were questions of the simplest character. The plaintiff was a wharf labourer and might not be able to find the money necessary to brief counsel in the Court of Appeal, and the order asked for might seriously prejudice him. Plaintiff . was allowed £2 2s costs.

Similar judgment was delivered in regard to the case of John Meikle {Mr. Fleming), against same defendant.

ANOTHER >WSLL CASE APPEAL. PERPLEXING CIRCUMSTANCES. A claim under the Family Protection Act, 1908, for additional allowances under the will of the testator, Abraham Fletcher, was brought by Abel Fletcher against Pereival Stanley Ussher and others. Mr. Dickson appeared for the plaintiff, Mr. Endean for the trustees, and Mr. Anderson for the beneficiaries. The estate was valued at £4200. Of "this sum about £2000 was given to testators sob, Abraham Fletcher, a small property, said to be worth £126, was given to the appellant, and the balance was divided between two daughters or their children, and the testator's son Thomas, who was in bad health.

His Honor, in giving judgment, said it was one of_ those perplexing cases which the appellant was admittedly wholly incapable of working, and was without means, but had been addicted to drink. It was alleged with apparent truth that he had wasted his earnings and neglected his wife and children, and probably this was the reason for the small proviljn made for him by the testator. The Court should take* such precautions as a prudent testator would in such a case. An order would be made for the payment out of the estate of £1 a week to the applicant during his life, upon condition that he shall abstain from the use of intoxicating liquors and that he shall concur with the trustees in the sale of the property given to him bv the will and execute all necessary documents for that purpose whenever requested. The allowance to be computed from the date of the testator's death, but the sum of the weekly payments accrued to dato of the order would be applied by the trustees in payjnent of such debts owing by applicant as ought to be paid. The order would be drawn up by the solicitor for the applicant and submitted to the solicitors for the other parties.