COURT OF APPEAL.

New Zealand Mail, Issue 1354, 10 February 1898, Page 29

COURT OF APPEAL.

Those whose business it is to frame Acts of Parliament were given something to consider by Mr Ju.-tice Williams in his judgment in two life insurance policy cases, read at the Court of Appeal last week. His Honor said that if the whole of a testator’s property or the residue was bequeathed either absolutely or upon trust, such a disposition was r.ot a legacy within the meaning of tbe statute, or if it was there was a special direction as to tbe disposition of such whole or residue and of every part of it. This was in substance the view which had been taken by the profession. Hundreds of wills had been prepared and executed in accordance with this view, had been proved, and the property distributed. To now hold the contrary would give rise to endless and cruel litigation. It appeared that the members of the Court of Appeal were not agreed. It followed that a section of an Act of Parliament dealing with a subject which intimately affected nearly every man woman and child in New" Zealand had been so obscurely framed that it had become unsafe for a dying man whose life was insured to make a will of the simplest character unless he had the Judicial Committee of the Privy Council at his elbow.

At a sitting of the Court of Appeal last week, before the Chief Justice and Mr Justice Edwards, judgment was given in Samuel v. Downes, a Wanganui oase. The question for determination arose upon the construction of section 33 of the Life Insurance Policies Act. It was whether in cases in which the testator has made one fund of the whole of his property, including policies of insurance upon his life, and has directed his executor to pay his debts out of suoh fund, there

is or is not a sufficient " special ” direction under the statute to charge such debts upon the proceeds of his life policies. The plaintiff was a cteditor claiming' the benefit of Ihe policies of insurance. The testator had in express terms directed his debts and the onelegacy given by him to be paid out of the one . fund wtich he made. The Court unanimously : held that it was impossible that the residue disposed of could consist of anything but what remained of the general fund after pay- : ment of the deb s and the legacy. Judgment ; was accordingly given for the plaintiff. It was ordered that coats on both sides should come out of the estate. Leave to appeal to { the Privy Council was given on the usual , terms | The Court of Appeal last week further the Carterton case in re Carter, i It was explained that the decision of the j Privy Council iu tin Dll worth case, remitted ' from Auckland, would probably govern the i Carterton case. j The Christchurch case of Lowndes v. i Mitton was further adjourned by the Court j of Appeal last week, on the application of ■ Mr H. D. Bell, who explained that the papers had been sent to England, but that no reply had yet been received. Mr Justice Denniston, in his judgment on I two life insurances cases, read in the Court ! of Appeal last week, gave a warning as to j certain printed will-forms that were in cirI culation, and pointed out that their use in l some cases might defeat the intentions of ' testators in regard to life insurance policies, in the coarse of his judgment in the case Ruddenklau v. Ruddenklau, delivered in the Court of Appeal last week, Mr Justice Edwards said that apart from legal technicalities it seemed a shock to common-sense to suggest that a man who died possessed of an insurance policy upon his life, and probably little or nothing besides, and who left the whole of his property, real and personal, to his wife, had really left her nothing, for his general estate, such as it was, was, as had been decided, burdened with the payment of general and testamentary expenses, as well as with the payment of his debts. He was glad to think that in the present case there was no necessity to revert to a construction involving those consequences.