A DISPUTED WILL.

New Zealand Herald, Volume LXVIII, Issue 20882, 26 May 1931, Page 12

A DISPUTED WILL.

QUEEN STREET SECTIONS. RENTS FIXED IN 1854. SUPREME COURT ARGUMENT. The interpretation of clauses in a will disposing of flic rcnfs from a valuable Lower Queen Street property was argued liy four counsel before Mr. Justice Smith in the S'tipreme Court yesterday. The pro perfy consists of fhree lots on which stand

Hugh Wright's buildings, in (bo neighbourhood of (lie New Zealand Insurance Company's Buildings, and it was disclosed that in 1851 these lots were leased at rents

appropriate in those days for a period of 999 years. The annual rentals were then fixed at an aggregate of £206 10s and (lie Government valuation of the testators' interest in (he laud is £4120. The case firsl tamo before Mr. Justice Herdtnan in September last.

On behalf of the Public Trustee Mr

A. H. Johnstone represented (he plaintiff in an originating summons for I lie inter pretation of certain provisions of tho will of tho lalo Walter Richard MeElwain, who died in December, 1900, and whoso will has been administered by the Public Trustee since 1907. Mr. Leary appeared for Richard McEhvain and for Mary Ann McElwain as executrix of tho estate of Percy McElwain; Mr. 11. A. Anderson for (lie defendant, Maud Hanna, of Hollywood, California; and Mr. Norllicroft'for the grandchildren of the testator, being tho children of his sons Percy and Richard. Written argument on behalf of the nine children of a deceased daughter was submitted by Mr. North, of flawora. A 999 Years' Lease.

Mr. Johnstone said (lie sole remaining asset in the estate was a valuable piece of land in Lower Queen Street, which was leased for a period of 999 years from March 1, 1854. The rental of £206 ]os was free from rates, taxes and impositions of any kind. It was a definitely fixed sum throughout the term of the lease: The. testator left, four children surviving and his widow died in November, 1908. A clause in the will slated: "As to my property in Lower Queen Street, Auckland, left to Dio by iny late brother George aavd leased to John Williamson Thomas Ball and Goorgo Burgoyne Owen, I divVde as follows: Out of the rents and proceeds 1 leave to my daughter Louisa £SO a year and to my daughter Maud £SO a ycjir." The balance of rent he left to his wife during her lifetimo and after her death to be divided between his two sons Percy and Richard. The will went on to stiy: "Notwithstanding what is said about my daughters' part of the Queen Street property it shall be for their sole and separate use, froe from the control of debts and encumbrances of their husbands and at my daughters' death to be equally divided between their children." There was farther provision as to the shares of testator's children in the event of their dying without issue. Questions of Annuities.

Counsel said the first question was, what interest did tho daughters and their children take under the will? He submitted that the sums of £SO left to the daughters were .perpetual annuities. The testator intended to deal with the whole property, although he regarded it from tho point of view of rent only. The children's interests were only for life and the children of the daughters took tho corpus. Mr. Leary reviewed the history of the case to show that the sons had perpetual annuities and tho daughters and their children had life annuities. By the wording of the will it appeared, he said, that when the daughters' and their children's interests ended, the sons got the benefit. Mr. Anderson supported in the main the argument of Sir. Johnstone. Mr. Northcroft said ho was constrained to admit that tho particular group of grandchildren whom ho represented, the children of the two sons, could in no circumstances benefit. His Honor reserved his decision.