STRANGE TOLL CASE.

New Zealand Herald, Volume LXI, Issue 18690, 22 April 1924, Page 6

STRANGE TOLL CASE.

FATHER AND HIS SON. A QUESTION OF RELIGION. SUCCESS IN AN APPEAL. Judgment in the case of William Samuel Gower v. the Public Trustee has been given by the Court of Appeal sitting in Wellington. The case -was an appeal from a decision of the Chief Justice, Sir Robert Stout, in a will case heard in the Supreme Court in Wellington in October last. The appellant, on whose behalf the case was brought, is 13 years of age. The case as it came before the Chief Justice, was one in which the Public Trustee, as executor of the will of Samuel Gower, farmer, formerly of Patea, and testamentary guardian of Gower's son, sought the instructions of the Supreme Court in October last as to his duties regarding the boy's religious 'instruction and education. The testator left a valuable estate, consisting of land and personalty, and by his will the income was to go to his son for life or until he became a Roman Catholic. On the sou's death, or in the event of his becoming a Catholic, the land was to go to the son's children, or, in default, to certain nephews and nieces.

It was stated that the personalty itself, amounting to about £10,000, was also given to the son on his attaining the age of 21, if he had not then become a Roman Catholic. The will further appointed the Public Trustee as executor and also testamentary guardian of the boy, with the express stipulation that the son was to be brought up in the Protestant faith.

The testator made his will in 1914, the son being then three years of age, and died in December, 1922. It was also stated that a solicitor had called the testator's attention to the will frequently, and as late as January, 1922, the testator had replied: "Let it stand." So this would prove that he had not forgotten the will. He formerly was a Protestant, but embraced the Roman Catholic faith in February, 1922, 10 months before his death,* and actually consented to his child being baptised in that faith. Decision by the Chief Justice. The Chief Justice in his decision held that the condition attached to the enjoyment of a life interest in the estate given to testator's son, so long as he shall not become a Roman Catholic, was valid, and that this validity was not affected by the circumstance that the son had been brought up in the Roman Catholic faith, but the condition would not become operative before the son attained his majority.

His Honor also held that the condition of not being a. Roman Catholic, annexed to the gift of the residuary estate to the son on "his attaining his majority, was valid, and that the son, on reaching the age of 21, would have the right to determine whether he would thenceforth cease to be a member of that church. His Honor held that it was not the duty of the Public Trustee to observe the stipulation to bring the son up as a Protestant, but that this answer did not affect the son's right to declare his religion at ib,e age of 21„ Order Varied on 'Appeal. In the judgment of the Appeal Court, which was prepared by Mr. Justice Salmond. His Honor stated:—

"This appeal relates to the validity and operation of the conditions so attached to these testamentary gifts. The first question for determination is whether they are invalid as being contrary to public policy. It is contended that a testator is not at liberty thus to bribe or coerce his children or other beneficiaries into the acceptance or repudiation of a religious faith; that such testamentary provisions are prejudicial to the public welfare as interfering with liberty of conscience, and tending directly to religious hypocrisy; and therefore that all conditions so inserted in a will are illegal and void. This contention, however, is inconsistent with established authorities." His Honor considered accordingly that the condition of not being a Roman Catholic was a condition subsequent. "The doctrine therefore as to conditions subsequent being void for uncertainty and the gift, being consequently absolute, applies to the "gift of residue no less than to the gift of the life estate," the Judge said. "The result is that the appellant takes an absolute estate free from the condition of not becoming a Roman Catholic, and that he takes the residue subject only to the condition of surviving until he is 21, but free from the condition that he shall not then be a Roman Catholic." Mr. Justice Sim and Mr. Justice Stringer concurred in the decision. Mr. Justice Adams expressed his agreement with the view held by the Chief Justice.