INTERPRETATION OF WILL.

New Zealand Herald, Volume LXI, Issue 18662, 19 March 1924, Page 11

INTERPRETATION OF WILL.

PROPERTY AT AVONDALE. SUPREME COURT RULING. A written judgment was delivered by Mr. Justice Herdman in the Supreme Court yesterday, in an application for the interpretation of the will of Thomas Lukes Webb, deceased, of Avondale. Deceased's will was a home-made one, and with its various peculiarities of spelling and phraseology, read as follows :— " Avondale. November 19, 1885. After my dicease I leave all my property to my too sons Hienery Webb George Webb if the should not raarrey and have no children Henery Webb George Webb after thare' discease it shall be given to my sisters too sons Kickolas Hodge Jhon Hodge Probus Cornwall England. My property is not to be sold its to be . kept in the Family and may the Lord Prosper my too sons Henery Webb George Webb. Signed by me Thos. Lukes Webb this day November 19 1885." The matter came before the Court as an originating summons, Mr. A. Hanna, instructed by Messrs. Thome, Thorne, and White, appearing for the applicants, Henry and George Webb. The main point at issue was whether, under the will, the sons had an absolute or only a life interest in the property. Letters of administration were granted to the two sons on June 5, 1891. Dr. Fitchett, on behalf of the Public Trustee, appeared for Nickolas and John Hodge, nephews of deceased. The Avondale Jockey Club desired to purchase the property, which comprised 10 acres of land, for £3500, and the decision of the Court was needed to give a good title, and enable the transaction to be completed. His Honor said that plaintiffs were unmarried and .childless. > Unavailing efforts had been made ■to discover the whereabouts of the two Hodges. ; He thought it was plain that the will "created no unconditional absolute 1 gift of the fee simple in favour of the two sons, and that it. was just as manifest that he intended that they should take a life interest at. the very least. The burden of testator's song was that the property should be kent in his family and that his sons should benefit before anyone ; else. The will, although in form unsatisfactory, was far from being so unintelligible as to justify a finding that the gift over to testator's nephews was void for uncertainty. His Honor ruled that Henry Webb and George Webb took a life interest as joint tenants, provided that if they both married and had children they became entitled to the fee simple. Secondly, he thought that in the, event of one brother marrying and having a child, or children, the joint tenancy >was broken and such a brother took his moiety of the estate absolutelv, the other brother still ' retaining his life interest in the fculpn'c** cVf th estate until he : married and had a child. Thirdly, should both die without having a child, then the devise in favour of the two Hod pes of the whole estate took effect. lastly, should one son marry and have a child, and should the other son remain unmarried and die. the share of th- latter passed, lie thought, to Nickolas and •To^ t i Hodp<\ F's Honor allowed nlaintiffs £21 and disbursements for their costs. He alto the Public Trustee in Auckland £10 10s. and disbursements, and to the Public Trustee ft- Wellington £3 3s, all co * 1 ; to he paid o"t of the estate. His Honor said there could be no doubt that the proposed sale of the property would be: advantageous, and . there would be no difficulty in getting the Court's assent to' it.