CATHEDRAL FUND

New Zealand Herald, Volume LXXIII, Issue 22578, 17 November 1936, Page 13

CATHEDRAL FUND

BEQUEST OE £67,000 LEGAL DIFFICULTIES COURT'S DECISION SOUGHT WISH TO AVOID DELAY Certain questions of tin- interpretation of the will of the late .Miss M. T. Morton, who left a bequest of about L' 07,000 for the erection of a new Anglican Cathedral, were submitted to Mr. .1 ustiee Smith in the Supreme Court yesterday. Delays that were arising through difficulty in interpretation had made it necessary to apply for the interpretation of the Court. One of the chief difficulties arose from a clause which made it appear that the trustees were not authorised to pay over any part of the legacy unless they were "satisfied at the end of the said ten years that such building will be properly carried 011 to a completed state." Mr. West appeared for the trustees oC the estate, the New Zealand Insurance Company. Limited, ami Sir Henry Horton, Mr. Richmond for the General Trust Hoard 01 the Diocese of Auckland. and Mr. Preudcigast lor the Auckland University College Council, which would benefit under the will provided tlio bequest to the cathedral failed. By direction of the Court Mr. Prendergast also represented other organisations that would benefit in the same contingency.

Parties Not in Conflict Mr. West said the trustees of the will wore not in any way in conflict with tJio General Trust Board, but it was thought proper to have the Court's interpretation of certain conditions surrounding tho gift to tho Cathedral building fund. There were attached certain conditions, tho failure to observe which would mean that tho bequest would lapse and go to other legatees. Air. lliclimoiid said it was of the greatest importance to the Diocesan Trust Board to make the earliest possible use of this great bequest without, of course, disregarding tho necessity for assured finance to carry the building to a point where it would, with adequate dignity, fulfil the requirements of a cathedral for the diocese. Ihe r lrust Board should not be hampered as to tho particular part of the CJ acres, originally selected by Bishop Selwyn, it would use. it was particularly desired that tho board should be in a position to make an appeal lor a centenary fund and definitely to assure tho public that there would bo no delay in proceeding with the construction after the financial position had been made secure, said .Mr. Richmond. He urged upon the Court an interpretation of the will that would make it unnecessary for the trustees to delay payment once a commencement was made with the building. Defining the Site Mr. Richmond asked, "What is meant by the site originally selected and now occupied by the l'arnell iennis Club courts and the adjoining houses between the said courts and St. Stephen's Avenue?" What Miss Horton wan really coining at, ho said, was to identify Bishop Selwyn's original site. The site the Bishop had in mind was of G} acres, and under his direction the synod oi 1859 appointed trustees of this G acres 2 roods 7 perches. Mr. Richmond submitted that any church building capable of being used as a church was a cathedral immediately tho bishop's chair was moved into' it. Tho Liverpool Cathedral, for instance, was dedicated as such when only the chancel had been constructed. Tho significance of that was that a substantial portion of the design could be carried on to tho point at which it was a cathedral. Counsel said Miss Horton could have

had no purpose in curtailing the (liscretion of the trustees in selecting the exact site, and tlio significant words of the will were " the site originally selected." '1 he answer to the question was " all that piece of land situated in the suburbs of Auckland being suburban lot No. 8 and part of suburban lot No. 13, both of section No. 4, containing six acres, two roods, seven perches." Description ol Cathedral As to the question whether in order to comply with the conditions of the will the cathedral might be erected 011 anv part of the site selected by the Trust Hoard, Mr. Richmond submitted the answer was " yes." His Honor: There does not seem to bo any other reasonable construction. Mr. Richmond said 110 could find no attempt in any of the books he had read to define the architecture necessary to a cathedral. Some of them were verv small. Mr. West suggested the definition of cathedral as " the church in which the bishop will normally have his seat." Mr. Richmond said that size and design were entirely at the discretion of the Trust. Board. The next question was whether the bequest lapsed if the following three conditions were not fulfilled: (a) the design of the building accepted by the General Trust Board within seven years of the death of the testatrix : (b) the building to be commenced within ten years of her death; (c) the

trustees to bo satisfied at the end ot ten years that tho building would be properly carried 011 to completion. Mr. Richmond submitted that only two of these conditions required to be fulfilled and said the draftsman had misplaced the words " and " and " or." Question of Construction Upon one construction the board would have to wait ten years before it knew whether it would get the legacy or not, but ho submitted that, where there was more than one condition outlined by the testatrix, the j Court would only require the carry- ! ing out of one. Another way of get- j ting over the diflieulty was that the j last condition might bo interpreted as j meaning '' at or before tho end oi ten years." Mr. Prendergast said there was no ! desire on tho part of tho University j to place any obstacles in the w.-}- of j tho Cathedral obtaining tho early use of this fund, but it was, of course, desirable that the wishes of tho testatrix should bo carried out. He submitted the area she indicated was the tennis courts and the properties be- | tween them and St. Stephen's Avenue. I Not only must the building be commenced within the ten yjars, but the trustees must then he satisfied that it would ho properiy carried to a completed state. His Honor said ho would put his answers to tho questions in writing.