AN OBSCURE WILL.

New Zealand Times, Volume XXXVI, Issue 8191, 5 August 1912, Page 4

AN OBSCURE WILL.

INTERPRETATION SOUGHT. An interpretation of the provision* of a home-mad© will of obscure meaning was asked of the Full Court on Saturday. On the bench were thcii Honors Sir Robert Stout (Chief Justice), Mr Justice Chapman, and Mi Justice Sim.

Frederick Machin, of Prahran, Vie. tdria, and his children, by their guardian ad litem (Mr F. E. Ward), proceeded against the Public Trustee a* executor of the will of the late William McGill, of Wellington, monumental mason, to define their interests is the corpus and income of the deceased’s estate.

The action had been argued in tha Supreme Court before his Honor Mr Justice Chapman, but in view of tha. amount involved and the importance of the case the matter was referred to the Full Court. Mr A. A. S. Menteath appeared fos plaintiffs and Mr J. W. Macdonald, with him Mr F. E- Kelly, for the Publie Trustee, who represented, also, the children of the deceased. The late Mr McGill died on February 7th, 1906, leaving a will appointing the Public Trustee executor and trustee. Deceased,’ after making sundry legacies and bequests, directed hia estate to be converted, but his freehold land not to bo sold during his widow’* life, or until his youngest child should attain thirty years of age, and, pending conversion, fitter payment of an annuity to his sister the income was to be divided among his wife and nine children in equal shares. On hia youngest child attaining thirty or hia widow dying the estate was to be sold, and, after provision had been made for the annuity, the capital was directed to bo divided (in the same proportion as mentioned previously) “among those of my family before mentioned that, may be alive at that time.” The will went on to provide “ if any son or daughter of mine shall die in my lifetime and any child oi children of such son or daughter shall bo living at my decease, then the said trust estate 1 or the share thereof to which such son or daughter, so dying would be entitled if living at my decease and at the ago of thirty years have been entitled under the trust aforesaid shall be held by my trustee upon such trusts and subject to such provisions in favour of the child or children of such son or daughter as ii such son or daughter had died immediately after my decease.

One of the deceased’s children, Alice Caroline Machin, recently died, leaving, as her next of kin, the plaintiffs. The period of distribution named in the will has not arrived, as. though the youngest child has attained the age of_ thirty, deceased’s widow is still alive.

iTaintiffs contended that though the gift to the children was only for those living at the period of distribution, and therefore Mrs Machin’s estate was excluded on the wording of that gift, as she died before the period of distribution, yet the wording of the gift over to grandchildren was so far inconsistent with this as to lead to tin inference that deceased’s children took vested shares at deceased’s death. They accordingly asked the court, in construing the will, to exclude the words “ that may be alive at that time” from the will. The value of the property in dispute is considerable..

A further question was asked by plaintiffs—what was to bo the destination of the rents and profits aftei Mrs Machin’s death and until th« period of distribution ? After argument had been heard the case was adjourned to ascertain li some arrangement between the parties oould not be come to.