COURT OF APPEAL.

New Zealand Mail, Issue 741, 14 May 1886, Page 12

COURT OF APPEAL.

Monday, May 10, 1886. (Before their Honors the Chief Justice, Mr Justice Johnston, and Mr Justice Williams.) BUDGE V PODGSON. A testator left property in trust for his wife for life, with remainder to his children ; the will contained the following proviso, “ Provided further it shall be lawful for the said trustees to pay to each daughter of mine entitled under the trusts aforesaid on her attaining the age of twenty-one years or marry ing, with her mother’s consent (if she shall then be living), any part, not exceeding one moiety of the capital of her share.’ The testator made certain advances, by way of loan to one of his daughters, Mrs Carey, during his lifetime on her marriage, giving

her two sections of land and £SO. He then lent her £IOO on mortgage of the land. He made a codicil, by which he recited the above gifts, and declared that the amount should be taken into account in estimating her share. After the death of the testator, the trustee released the mortgage, and made advances to Mrs Carey’s husband. On a summons, before Mr Justice Richmond he gave directions that in taking accounts these advances should be disallowed. Against this judgment the trustees appealed. Mr Brown for the trustees : The direction was wrong. The condition of marriage with consent of the mother was satisfied by the marriage during the lifetime of the testator with his consent. Glarke v. Barclay, 2 Vern 719 ; Wheeler v. Warner, 1 S. &S. 304. The trustees had the power, once Mrs Garey was married or attained 21, to go on making advances till the whole moiety was advanced. Parnell v. Lyon, IV.& B. 479. [ The Chief Justice : Is this not the reason of the judgment of Mr Justice Richmond : That if the testator had Intended his daughter to have a further advance he would not have lent her this sum on mortgage?] Tweedale v. Tweedale, 7 Ch. D. 633. Mr Bell for the plaintiff: The cases cited are only authorities for the vesting of an estate given on condition. There is no question here of vesting of the estate. The question is whether the trustees can, by making these advances, throw the widow’s annuity on the capital. The power is to appoint on attaining 21, on marriage, not from time to time. There must be some connection between the advance and the marriage, or majority. It is a punctual temporis, not a terminus a quo. The construction contended for would read into the will “at any time after marriage,” Swallow v. Binns, 1 K. and J. 417, at page 424, is a dictum bearirg on the canon of construction applicable. Clarke v. Hogg, 14 W.R. On the c-.nßtruction of the codicil, we say the testator shows he had defined that he had made the advancement. The gift in the lifetime was land, the gift in the will money, which would not be advanced. Mr Chapman for other parties : The argument for the trustees confuses a power of advancement wich a power of appointment. This case is neither. It is a power of accellerating the period at which m->ney is to be paid. The acceleration may reduce the interests of persons beneficially interested by throwing the widow’s annuity on the capital. Judgment was reserved.

The Court adjourned to h df-past 10 the following day.

Tuesday, May 11. (Before their Honors the Chief Justice, Mr Justice Johnston, and Mr Justice Williams.) TE RAIHI AND OTHERS V. GRICE AND OTHERB. This was an appeal from the decision of Mr Justice Gillies in an action' to set aside dealings with the ce'ebrated Pukekura Block. His Honor declared the Crown grant void, but refused to interfere with leases against th's decision, the parties appealed. The case was only partly heard to-day, a report will be published when the case is concluded Mr Bell appeared for the appellants, and Mr Chapman and Mr Edwards for the respondents. A- sy

The Court adjourned to 10.30 next day.