Law Intelligence.

New Zealand Mail, Issue 209, 11 September 1875, Page 15

Law Intelligence.

SUPREME COURT. Tuesday, September 7. (Before his Honor the Chief Justice.) The Court sat at 11 a.m. EDUCATION BOARD V. HARRISON. Judgment on demurrer. His Honor said:— This was a demurer by John Ralph Rees, one of the defendants in ail action for specific relief, brought by tlie Education Board for the Province of W ellington against Henry Shafto Harrison and John Ralph Roes It was heard on the nth August last. It appears from the declaration that the plaintiffs are a bodv incorporated under an Ordinance of tlie Pniv.inco of Wellington, called ‘‘The Wellington Education Act, 1871.” The defendant Harrison is the surviving trustee under and executor of the will of one < feorge Rees, and the defendant John Ralph Rees is the heii-at-law of the said George Rees, who formerly lived at Wanganui in the said province. He died in October, ISSB, seized and possessed of certain real and personal property, having made his will dated February 4, 18.(7, whereby he bequeathed his household effects to his wife absolutely, but all the rust of his real and personal estate lie devised and bequeathed to his executors upon trusts to pay his wife and sister, respectively during their lives, the annual proceeds in equal moieties, and after their decease, “then upon trust to convey, Ac., all such portions of my real estate, and to convey, Ac., all such portion of my personal estate, which at tlie time of tlie decease of my said wife and of my said sister, shall remain unsold, and also transfer, Ac., all such portions of my said estate, as shall consist of Government debentures, and all other Government securities or other securities whatsoever, or money or other effects whatsoever unto the trustee or trustees, manager or managers, governor or governors, director or directors, committee or committees of any public institution or institutions as may then bo established in Wanganui under the sanction and authority of the Government for the province of Wellington for educational purposes, the property so transferred to be appropriated to the education of European children or children being the descendants of Europeans in any such institutions aforesaid.” And then, after giving to the survivor during her life the moiety enjoyed by the one who died first, he appointed tlie defendant Harrison and Thomas Harper executors and trustees of his will. The testator's wife survived his sister, and died in October, 1371. The defendant Harrison is the surviving executor and trustee. On tlie 2Sth June, IS7I, the Ordinance under which tlie plaintiffs were incorporated was assented to. but with tlie exception of tlie sections defining districts and providing for appointment of assessors and the making a valuation (which came in force on assent being given) it was provided that tlie Ordinance should not come into force until Ist July, 1.572. The second section relating to the repeal of former Ordinances did not therefore come into operation until Lst July, 1572, that is, at a time subsequent to the death of the testator’s widow. At the date of the death of the widow the Ordinances repealed by the Ordinance of 1871 were in force, but were repealed by the second section of the Ordinance of 1871. That section repeals those Ordinances, hut provides that ‘‘for the purpose of winding up the affairs of any school established under the said Acts; every school committee existing under the said Acts shall continue to exist, and to hold office, and to exercise all powers vested in them under the said Acts, as far as such powers shall be necessary for such winding up, as if this Act had not been passed.” It appears that at the date of death of the widow, and up the lst July, 1872. there existed a school at Wanganui established under the said repealed Ordinances, under the management of a committee elected under the Ordinances. The committee was subject to annual election. By the Ordinance of 1871 provision is made for the election of a Board for the management of schools throughout the provinces, lmt no provision is made for district or local committees. The Ordinance of 1371 does not provide for tlie transfer to or the vesting in the Board of properties or rights vested in or belonging to school committees under the repealed Ordinance. The plaintiffs are that Board. A Board was first elected some time after July, 1872. The plaintiff's have adopted as a school under the Ordinance of 1871, tlie common school which existed at tlie date of the death of the widow. In June, 187”, the plaintiffs commenced an action against the defendant Harrison for tlie administration of the estate, and tlie defendant Harrison appeared and admitted the facts, but on 2nd September, 1873, by order of the Supreme Court, it was ordered that the heir-at-law should ho made a defendant, and tlie prayer in the declaration amended, by pray ing for the establishment of the will, Ac. It was also ordered that a special ease should lie prepared, in order that the trusts should he ascertained, and the interests of all persons concerned ascertained. Accordingly the heir-at-law was made a party; he has appeared and lias demurred, not deeming himself bound by the order for the statement of the special case. The grounds of demurrer are substantially, that the plaintiffs arc not tlie proper parties to sue, and that even if they can sue the suit is defective for want of the Attorney-General as a party. At the argument, Mr. Brandon, for the plaintiff cited various authorities, which established that, though the particular object of the testator’s charity shall have ceased to exist, yet that if there is a general intention of charity the Court will execute his intention cy. pres. It was contended by Air. Bell, for the heir-at-law, that those authorities did not apply to the present case ; that the intention was not general but particular. and moreover, that even though there were a general intention of charity, and though the Court would in that ease execute the intention cy. pres., yct_ that tlie declaration was demurrable, because the plaintiffs were not the persons or body to whom the testator had directed tlie properties to be transferred ; that they did not in law represent either the trustees or th c cestui qae trusts, and could not, therefore, maintain the suit, and that it was necessary that tilts Attorney-General should lie a party to the suit, and that the declaration was therefore demurrable. It is clear from tlie facts stated in the declaration, that tho language of the testator’s will did not apply specifically to them, but did apply to a body of persons called a committee, elected under an Act now repealed. The learned counsel for the plaintiffs was

unable to point to any statutory provision which constituted the plaintiffs to be the representatives of that committee—he relied, indeed, only upon the authorities above referred to.

1 think that for the purposes of the demurrer it may he assumed, that the contention for the plaintiffs that there is a general intention of charity and that the Court will execute it cy. pres., and that the cases of I lay ter v. Trego. 5 Russell and others, hereafter referred to. apply to tiiis ease, can he maintained, lint allowing that.it does not follow that the plaintiffs are entitled to maintain the suit. In order to maintain the suit they must show that they represent in law the trustees, the School Committee, This they are unable to do. Nor do they represent the echini qm trusts, the Attorney-General represents the icshii <[ W- trusts. The suit should have been either by action at the suit of the trustee and executor under the will, making the heir-at-law and Attorney-Ceneral parties, or by information at the suit of the Attorney. General, making the executor and trustee and heir-at-law defendants. As the plaintiffs are compelled to invoke the principle of cy. pres, that I think conclusively shows that the Attorney-!leneral must lie a party. The Attorney-Ceneral was a party in the case mainly relied on (llavter v. Trego) As the plaintilfs are not the legal representatives of tlie school committee, and do not represent the CKxtui quo trusts, for, as already said, the AttorneyGeneral represents them, they cannot he parties to the suit. Kven if the school committee under the repealed Acts had been parties, still the AttorneyGeneral must also have been made a party, inasmuch as the particular school meant to ho favored by the testator had ceased to exist, and resort lias to be made to the doctrine of cy. pres. In the Corporation of the Sons of the Clergy x r . Mo.se (IX. Simons, 01:2), the bill was held demurrable, because the Attorney-Ceneral was not made a party. In that case the plaintiffs contended that they were the very body referred to in the testator’s will, but nevertheless the Vice-Chancellor held that the Attorney-Ceneral was a necessary party, because the trusts of the will were not identical with the trusts upon which the general funds of the body were held. “ In rc Mockett's Trusts,” ’2l) L.J., eh. 294, where the testator made a bequest to the treasurer of a school, in trust, to apply the yearly interest in the instruction of youth in the practical part of navigation and nautical astronomy, a petition was presented under the Trustee Act for the advice of the Court. It appeared that the school had ceased to exist during tlie life of testator. The Attorney-General was represented on tlie hearing of the petition but as it appeared that some of the persons who would he interested in the residue, if the gift to tlie charity failed, were infants, the Vice-Chancellor directed that a bill should he tiled by the executor, or the residuary legatee, instead of the petition, and this was done and the suit came on under the name of Marsh v. Attorney-Ceneral, 30 L..T., cli. 233. The AttorneyGeneral it was who contended for the execution of the charity according to the doctrine of cy. pres. I mention this case as showing what the course taken was in somewhat analagous case. The decision of tlie Court may also lie relied upon in support of the liequest in the present case, though tlie heir-at-law may also perhaps cite it as an authority on his behalf, as showing that the bequest in the ease now before this Court lias failed. In Marsh v. Attorney-General the purpose was general, as pointed out and relied upon by tlie Vice-Chancellor —the purpose was not instruction in the particular school; in tlie present case the language of the will is, “ in any such institution as aforesaid.” The lieirat-law will probably contend that these words are to be read as meaning, “in such institution as aforesaid (namely, under the sanction of the Provincial Government)as at tlie time of the death of tlie widow existed.”

In “Tudor on Charities,” p. 101, it is said, “As a general rule, the Attorney-Ceneral must be a party to every suit or bill, when the subject matter is either wholly or in part appropriated to charitable purposes. So whore the next of kin of a testator files a bill to set aside a gift as coming within the 9 (icorge 11. c. 30, or where it appears in a suit by the heir-at-law claiming a resulting trust that there is a disposition in favor of a charity, the Attorney-Cenoral must be a party.” (.See also Daniell’s Oh. Practice, 135, and Weebeloved v. .Tones, 1, Simon's and Stuart, -13), where the general rule is stated.

Although I think it clear that the demurrer can be sustained on the ground of the defect in not making the Attorney-General a party, I should have allowed the plaintiff to amend by making him a defendant ’; but, as it appears to me that the demurrer can also be sustained on the ground of want of title in the plaintiffs, that course cannot be taken. A new suit must, therefore, I think, bo commenced. It may be open to question whether the Provincial Legislature had power to legislate so as to provide for the transfer of properties, rights, and interests vested in the committee under the Repealed Acts ; however, it did not do so by the Act of IS7I, and it seems, therefore, quite clear that, the Board cannot pretend to bo the legal representative of the committee, so as to maintain any suit founded upon rights acquired by that committee. The case seems one in which a special case may easily be'stated, and the opinion of the Court of Appeal obtained. The case is peculiar in this : At the time when, by the terms of the will, the property became applicable to charity, there was in existence an institution of the description specified in the will, and there were also in existence and in oflice a body of persons of the description specified in the will as persons to be trustees of the fund ; but by the repeal of the Ordinance under which that institution and the trustees had their exist'eneo they ceased to exist, for though kept alive for the purpose of winding up the affairs of the committee, they being elected for the year, ceased to hold office before this suit. The repealing Ordinances did not even provide that the schools under the repealed Ordinances should be schools under the repealing Ordinances. It seems to me. however, on the authority of the cases of The Incorporated Society v. Price. 1 Jones and Latouche, 40S: llayter v. Trego, 5 Bussell, lift ; Reeve v. Attor-ney-General. 3 Hare, 101 : Attorney-General v. Glyn, 12 Simons, SI: Marsh v. Attorney-General, supra., that this Court will execute the charitable intention, and treat the institution specified in the will, not as the object, but only as the favored mode of carrying out the object—that object being the instruction of European children at Wanganui. Ido not think that the case of Fisk v. Attorney-General, L.R. Eq., ;V2:5: and Clark v. Taylor. 1 Drew, 042; and Russell v. Kellett. 3 Sim ami Gift', 2(14, and cases of that class, apply ; in those cases there was no indication of a general intention. The benefit of the particular insti tuition mentioned in the will was held to be the object of the testator, and not the words indicated of a more general object. But to obtain such a decree there must be a properly constituted suit. Air. Brandon •requested to be allowed to amend, and the Chief Justice, after some argument, gave permission to mention the matter of amendment again. IN THE GOODS OF ATILT,AIt. His Honor gave judgment and said In this case Air. Hart, on behalf of the Curator of Intestate Estates, applied for an order to administer the estate of one George Alillar, who lately died at Invercargill, in this colony. On the application, a testamentary instrument, found amongst tiro papers of the deceased, and purporting to have been executed by him, was produced before the Court. It was submitted that the said testamentary instrument not being execut ed according to the law of New Zealand was invalid, and that George Alillar must be deemed to have died intestate. The questions are whether the said George Alillar is to be taken to have been at his death domiciled in New Zealand : whether his will, executed in the Scotch form, and not according to the law of New Zealand, is a valid will; or whether lie is to be doomed to have died intestate. If he may be taken to have died intestate, then administration without the will annexed may be granted to the Public Trustee, who, as Curator of Intestate Estates, makes application for such administration. So far as appears, it may, I think, be assumed that the deceased was a native of Scotland, and that his domicile of origin was Scotch. It appears that the deceased, after having executed in Scotland a testamentary instrument dated the Ist of December, 1870, left that part of the British dominions, and went to Alelbourne, in Victoria, and resided there for two years, being employed during that period as a teacher in the Scotch College; that in November, 1873, having been appointed master of the grammar school at

Invercargill, lie commenced to reside :it Invercargill, and continued to reside there till liis death, in April, 1875; that he was engaged to he married to a lady who lived in Scotland ; and that that ladv, with a view to the marriage, left Scotland, and arrived in New Zealand at the end of 1874 ; and that the marriage was prevented by the state of health of the deceased. The testamentary instrument above referred to was found in the possession of tlie deceased at the time of his death. It would appear from that instrument that the deceased had several sisters residing in Scotland, and was possessed of an interest in a house and moveable property there. No other facts are in proof. It does not appear what other kindred he hail, or whether the sisters were living or not. On this evidence Ido not think that I can conclude that the deceased intended to abandon his Scotch domicile and take a New Zealand domicile. I think that the absence from Scotland and the residence in New Zealand is too short to enable me to infer any such change of domicile. It is clear that the onus of proof is on those who allege a change of domicile from the domicile of origin. Though ordinarily the place of death may he taken pchna J'uc.ic as the place of domicile, it seems to me that where a testamentary instrument in fact exists that rule cannot be acted upon in the absence of the executor or those interested in establishing the validity of the will, if tiro effect would he to invalidate tiie will.

In this case there is an utter absence of expressed intention. In Douglas v. Douglas, 11 T.J., Ch. SO, which was elaborately argued. Vice-Chancellor Wickens, in his judgment, treats fully of the subject of the change of domicile, lie says, “It seems to me, as it did to V. C. dames in Haldane v. Kckford, that the intention required for a change of domicile (as distinguished from the action embodying it) is an intention to settle in a new country as a permanent home, and that if this intention exists and is sutlicientlv carried into effect, certain legal consequences follow from it, whether such consequences were intended or not. and perhaps even though the person in question may liavcintcnded the exact contrary.” And lie goes on to say, “Itmayperhapslieaddedthatto prove such an intention as is necessary to establish a change of domicile, and in the absence of evidence, that the intention actually existed (which can he shown by express declaration, and in no other way), the evidence must lead to the inference, that if the question had been formally submitted to the person whose domicile is in dispute, lie would have expressed his wish in favor of a change. Possibly, where the actual residence in the acquired domicile lias been very large, an unconscious change of mind may be inferred, though it may bo doubtful whether it would have been declared, or admitted, if the question had been actually raised. Such unconscious changes of opinion on the most important subjects happen not unfrequently in such a space of time as the thirty-two years of residence in England, which occurred in (Jdny v. Udny. But in cases not involving a very long time, I apprehend that in order to establish a change of domicile it must be shown that the intention required (1 have already stated what I consider that intention to be) actually existed in the mind, or was made reasonably certain that it would have been formed or expressed if tlie question had arisen in a form requiring a deliberate “or solemn determination” In the case before him the learned Vice-Chancellor held that there had been no change of domicile. In the present case the absence from Scotland is but four years, the residence in New Zealand but two years, anil was taken up apparently in consequence of being appointed to be master of a school here. There is no evidence of any declared intention to settle permanently and finally in New Zealand, or out of Scotland. The change of domicile must be established as an inference from facts, and as V. C. Wickens says in the case above cited, “without the important element of any such lapse of time as can for the present purpose be considered as a long one.” It is to be observed that the persons interested in setting up the testamentary instrument executed in Scotland are not in this country, and have not been represented or heard here. No proof lias been produced of the communications between himself and his relations in Scotland during his absence f rom Scotland. Under these circumstances I have no difficulty in coming to the conclusion that the Curator has not established a change of domicile, and the onus of such proof is on him. Amongst other cases, the following may be referred to as showing that residence in a new country, following a business, or performing the duties of an office, will not, in the absence of other evidence, and of itself, establish a change of domicile. In the case of Attorney-General v. Rowe, (1. Hurlsione and Coltman, .'ll) it was held that a person appointed to be Chief Justice of Cevlou had not, by accepting such otlice and a residence of three years at Ceylon, changed his English domicile. In Jopp v. Wood (20 L. J. ch. 400) a residence of nine years in India following mercantile pursuits was held, in the absence of other evidence, not to establish a change of domicile.

If there has been no change of domicile, then the testamentary instruments executed in Scotland is valid, and administration could not he given to the Curator without the will annexed. If. on the contrary, there lias been a change of a domicile, then the testamentary instrument executed in Scotch form, but not according to law of Mew Zealand, is invalidated by the change. In a note to Williams on Executors, p. SCO, the opinion of Story to this effect is questioned, Put the third section of tiro 24 and 25 Viet., cap. Il l (known as Lord Kingsdown's Act), expressly provides that no will shall be held to be revoked, or to have become invalid, by a subsequent change of domicile of the party making it. And. in the (lends of Kcid, L.lt., Probate and Divorce, Vol. 1., p. 75, the learned judge, Sir .T. P. Wilde gives it as his opinion that but for that Act a will valid according to the law of Scotland would by the testator’s change of domicile have become invalid. He says: “The question is whether the deceased, being a domiciled Englishman at ttie time of his death, his will is valid, although it is not executed in the manner prescribed by the Wills Act. And there is not, probably, any doubt that hut for Lord Kingsdown’s Act the will would be invalid.” There seems but little doubt that the opinion in

“ Story's Conflict of Laws,” sec. 473, correctly states tlic law as it is in New Zealand, for Lord Kingsdown's Act docs not apply to the colonies, and the law in New Zealand is on this subject what the law was in England before that Act. The effect of that Act appears to be that even if it should appear in this case that there has been a change of domicile yet that in an English or scotch court the testamentary instrument executed by the deceased before that change would not be thereby invalidated, and effect would be given thereto in those courts. But I do not think that the combined effect of the second and third sections of the Act referred to is to alter the law of New Zealand. The second section of the Act provides that every will made within the United Kingdom by any British subject (whatever may be the domicile of such person at the time of making the same, or at the time of his nr her death shall, as regards personal property, be held to be well executed, and shall bo admitted in England and Ireland to probate, and in Scotland to confirmation, &c., Ac. The Act does not provide that such instruments shall be admitted to probate throughout the British dominions, but only in the United Kingdom. I think that the second section is to be construed as if the language of the first section of the Act had been followed. That section deals with the same subject, but applies to instruments executed out of the United Kingdom, while the second section applies to instruments executed within the United Kingdom. The first section provides that “wills made out of the United Kingdom by a British subject (whatever may be the domicile of such person at the time of making the same, or at the time of his or her death), shall, as regards personal estate, be held to be well executed, for the purpose of being admitted in England and Ireland to probate, and in Scotland to confirmation, Ac. It seems to me, therefore, that the second section is to be construed as if it had provided, as does the first section, that the testamentary instruments referred to shall be hold to be well executed for the purposes of probate in the United Kingdom. But although the Act has no operation in New Zealand, it has an important bearing on the subject. The third section is a legislative recognition that, according to common law, the change of domicile would invalidate a testamentary instrument, if the instrument were not valid as to form according to the law of the place of domicile at death ; and, moreover, the Act clearly renders the instrument a valid will in Scotland whether there has been a change of domicile or not since its making.

I do not dismiss the application, but adjourn it, and suspend judgment until the persons interested in supporting the validity of the will are represented, or fail to .appear after notice of the application ; and evidence must be obtained as to the domicile of tbe ntestate. As the case stands at present it cannot be determined whether the Curator is entitled to an order to administer with the will conveyed, or to administer as in the case of intestacy. It is not to be inferred that in the ordinary case of a settler dying in New Zealand or any other colony, though after a short residence, any doubt exists that prima facie his domicile will be taken to bo the place of his death ; but that rule cannot I think be safely or properly acted upon, in the absence of all other evidence, and in the absence of all those who are interested in setting up the instrument, and where the effect would be to set aside a testamentary instrument found in the possession of the deceased. (See Coote’s Probate Ed. ]>. 72, 7.'!.) In the present case the Curator has obtained authority to realise the property, and it is now in the Public Trust olliee. I have thought it necessary to go somewhat fully into this matter, as I have reason to believe that similar cases have arisen and are likely to arise. I am inclined to think that the adoption of provisions similar to those of Lord Kingsdown’s Act would be calculated to carry out the testamentary intentions of deceased persons ; for it can hardly be thought that a man will preserve a testamentary instrument except with the intention that it shall, and in the belief that it will be executed ; and perhaps it may be safely assumed that if the law was considered necessary in the case of tbe man removing from Edinburgh to London, it is no less necessary in the ease of the man who removes from .Edinburgh to Wellington or Dunedin.

BANKRUPTCY COURT. Tuesday, September 7. (Before lii.s Honor the Chief Justice.') IX KE THOMAS AXI) AXXE MUI.LIXS, BAXKKEI’TS (SUMMOXS.) Thomas Mullins, one of the bankrupts, -was shortly examined by Mr. Brandon on behalf of the trustees as to some details connected with the affairs of the estate. The Court then rose.