LEGAL DECISIONS.

New Zealand Mail, Issue 1747, 30 August 1905, Page 18

LEGAL DECISIONS.

'A MAORI HAND TRANSFER. When the Court assembled on Thursday morning their honors Sir Robert Stout, Chief Justice, and Mr Justice Cooper proceeded „to read the reserved judgments of the Cour t of Appeal in the case of a transfer of certain lands to George Efibott, argument in which, was —heard on the 11th. and 12th of July last. The Chief Justice said the case was stated to the Court of Appeal by the Native Appellate Court, and the question put was whether a certain transfer was a dealing prohibited by any law in force at the time of its execution. The transfer was that of a section of Maori land, 272 acres in area, which was executed on November 27th, 1903, in favour of George Ebbett by a native named Inpoama Rakatairi. Hi a Honor discussed the law with regard to the alienation of Maori lands, and took occasion to remark that there had been a Maori Land Act passed almost every year. He concluded his judgment by answering the question in the affirmative. Their Honors Mr Justice Williams and Mr Justice Edwards concurred. A FATHER’S WILL.

His Honor the Chief Justice gave judgment in the case of Munt and others v. Findlay. He said the matter •was ah originating summons under the Testators’ Family Maintenance Act, 1900. The testator died in England about the 11th October, 1904. He left property in New Zealand worth between £4OOO and £SOOO, and about £I6OO worth of property in England. Under his will and its codicil he left the whole of his property to his nephews and nieces, and nothing to his children- —'five sons, three who were the applicants in this case, and two whose whereabouts ' were unknown. But before the testator went to England he made over his business to his sons, Thomas Archibald Munt and James Munt, two of the plaintiffs. The former earned £4 per week, the latter £3, and both obtained dividends from shares in the company into which their father’s business - was formed, the shares belonging to each being valued at from £760 to £IOOO. George Henry Munt—the other plaintiff —was fortyfive years of age, and was a partial invalid, not able to work at his trade as well as an ordinarily strong man could. There were two questions to be considered: Whether the Testators Family Maintenance Act applied to this testator, as it had been contended that he was domiciled in England ; and, secondly, whether under the circumstances any allowance should be made to the sons. His Honor was of opinion that there was sufficient evidence of the testator’s domicile in New Zealand, and as the will was proved here, the Court had full control Over the disposition of the testator’s property. His Honor further found that the plaintiff George Henry Munt was in a position to require assistance, and that he came within the terms of the act. As to

Thomas Archibald. Munt and James ' Munt, the other plaintiffs, they were both young and vigorous men in constant employment in connection with the business in which they were shareUnder the circumstances his Honor did not think they came within the terms of the act. They had provision for their maintenance new, and unless the act was to be so construed as to enable the Court to grant maintenance to children whatever their means might be, these sons did not come within the terms of the statute. The will, no doubt, was unfair to them,' but as had been said on more than one occasion,' the Court had not the authority to interfere with the decision of a testator in his power of disposing of his property, save only if his wife or children required maintenance. His Honor, therefore, regretted that he had no power to make any order, so far as Thomas Archibald Munt and James Munt were concerned. As to George Henry Munt, his Honor thought a proper allowance would be that the executor should pay him £IOOO. The money would be payable at once, and he would he entitled to costs, which were fixed at £lO 10s, and disbursements. The exectuors’ costs would come out of the estate.

THE PLIMMER CASE. JUDGMENT FOR THE PLAINTIFF.

In delivering his judgment in the case of Plimmer v. Plimmer and others, his Honor the Chief Justice said the case came before the Court by way of an originating summons under the Testators’ Family Maintenance Act, 1900, issued by the plaintiff, Janet Plimmer, who was the widow of John Plimmer, the testator. The plaintiff was married in 1863, and was the testator’s second Lv;,wife. They lived together;' until 1874, i d when they mutually agreed by deed to :• separate, and the testator covenanted ; vto pay her £l5O a year for the maintenance of herself and her two sons. This had never varied, although ; between the date of the deed and that : sof the testator’s death, it was admitted hat he became possessed of large means, it his death his estate was worth at

least £27,949. The Stamp Department claimed tnat it was worth £34,949, but that claim was still in dispute. At the time of the separation, considering what the means of the testator, the cost of living, and the rents of houses then were, his Honor thought the allowance might hav© been a proper one. Plaintiff had no legal right to ask that her allowance should be increased, however inadequate it bad become. She was now seventysix years of age, and bad one son surviving,. who was married and had two children, and whose earnings were £IOO per annum. The plaintiff stated that she had to assist him out of her allowance of £l5O, and she had no other means than that. £IOOO was bequeathed to her son by the testator, but that amount was not immediately payable, and might not be for five years, and it might be reduced, as the bequests to the daughter took precedence. The questions for the Court were—(l) Ought the allowance to the plaintiff to be increased ? and (2) Had the Court power to order any increase? His Honor said it was plain that even if'the means of the testator had not increased since the date of the separation, what might have been an adequate allowance for a youhg and strong woman would not be sufficient for the maintenance of a woman seventy-six years of age ; and it was beyond dispute that the cost of living and the rents of houses had largely increased during the past thirty years. In his Honor’s opinion, a testator leaving £27,949 ought not to have left his aged widow so scantily provided for. It had been contended that the deed of separation stood in the way of the Court acting under the statute, and that the covenant with the trustee prevented any aleration in the rate of maintenance. His Honor was. of opinion that the words of the covenant were not wide enough to cover a proceeding such as this was under the Testators’ Family Maintenance Act. A deed or covenant should be construed in reference to things that existed at its date ; and if its language anticipated future events, that language must be clear and express. It had further been contended that as the plaintiff had consented to an allowance of £l5O a year she was not entitled under her changed circumstances to ask for any additional allowance. His Honor could not hold with this argument. As to the contention that any provision made for the plaintiff must cover, not out “of the estate” of the testator, but out of the residuary estate, and that the three daughters might have their allowances reduced —and the sums given them were so small that the Court would not reduce them —it seemed to his Honor that there were several answers. He was not satisfied that the allowanoe contemplated by the testator, viz., £IOO a year each to two daughters and £SO a year to another, would not be secured to them. The residuary estate was estimated to yield £BOOO. If the £IOOO each granted to George Plimmer and Henry Plimmer respectively were paid in full, there would be £6OOO left to the three daughters. And his Honor was not convinced that the Court was bound to assume that any allowance ordered was bound to come out of the residuary estate, but if it were so, that should not fetter the discretion or power of the Court. If daughters of the testator had been parsimoniously dealt with, that was no reason why the widow should not have such provision made as would give her an adequate maintenance. The daughters could have applied to the Court to grant them an adequate allowance if they required maintenance. The only question was as to what the amount of the provision for the widow should be, and how it should be made. There was no property upon which—if the allowance were to be an annual one—it could be charged without creating possibly some difficulties in adjustment. His Honor was of opinion that it was better to make provision for the widow once and for all by ordering the payment to her of one sum, and allowing her to invest it as an annuity, or in any way she thought fit. Seeing her great age, and that the statute provided that the sum must be for maintenance, this sum could not be a large one. They knew for what sum an annuity could be purchased. The Court could not make up to her for her scanty maintenance in the past, hut ecu Id only consider her future maintenance. His Honor was of opinion that the very smallest sum that should be provided—in addition to her allowance under the will, which must continue—was £IOOO. This sum must be paid at once, and she was entitled to all her costs as between solicitor and client, witnesses’ expenses, and disbursements. The executors and the residuary legatees were entitled to similar costs. The order must be that the amounts awarded were to come out “ of the estate of the testator.” If there was any dispute between the executors and the legatees in regard thefts ] the Court was open to those w* > differed. His Honor Jr Justice Cooper also gave judgment, and . in regard to the law governing such a case agreed with the Chief , Justice. He doubted, however, whether a lump sum ought to be raid to the plaintiff as “an adequate provision for her proper maintenance.” In his view, the provision contemplated under the act was rather in the nature

of an arTMiitl payment. If the plaintiff were to die next year the result of paying her a lump sum would be to enable her to dispose of it by will, or, if she died intestate, her next of kin would benefit. In this case it was the testator’s duty to make adequate provision for the proper maintenance of his wife, but not, under . the Testators’ Family Maintenance Act, to provide her with a sum which she could dispose of at her death. His Honor would have pieferred an order for the payment of a fixed annual sum in addition to the snm provided by the deed. He was not prepared to dissent from his Honor the Chief Justice, but he concurred with hesitation, because he felt that there was a very grave doubt whether in the exercise of its discretion, the Court ought in this case to make such an order, and whether it should do any more than oader a moderate annual pay-; ment to be made to the plaintiff during the remainder of her life in addition to the £l5O a year provided for her under the deed.

A GAMBLING DISPUTE. yk JONES vTIbXLTON. 'His Honor the Chief Justice delivered his reserved judgment in the case of Jones v. Hilton, which was tried before him a few days ago. He said the cheque which was the subject matter of the dispute was given by the drawer of a gambling debt of a character declared illegal under the Gaming Act of 1894. The giver of the cheque, Fnedeiack-Hjl-ton, and the receiver, John McWilliams, had both committed an offence, and under the statute were liable to imprisonment for any term not exceeding three months, or to a fine not exceeding £2O, or to both imprisonment and fine. McWilliams, on receipt of the cheque, paid it into his hank, and it was dishonoured. The plaintiff, John Charles Jones, was employed by MoWilliams, who, he stated, owed Him £27 for wages, and McWilliams gave him this cheque, which was for £42, in payment, and received £ls change. When the cheque was again presented at th© bank it was dishonoured. His Honor was of opinion that it was not an honest transfer of the cheque from McWilliams to plaintiff, and that plaintiff took the cheque knowing that it had been dishonoured, and that there was something wrong with it. It appeared, therefore, that it "was McWilliams’s action, and that Jones had only lent him his name, in order that MoWilliams should try to receive the money won by him from the defendant. His Honor was of opinion that- the plaintiff was not entitled to recover, and gave judgment for the defendant, with £l2 12s costs, witnesses’ expenses, and disbursements.