ABOUT A WILL

New Zealand Times, Volume L, Issue 11659, 25 October 1923, Page 3

ABOUT A WILL

AN UNUSUAL CASE WEALTHY ESTATE: FATHER’S . EMBARGO ON SON. A QUESTION OF RELIGION. The Chief Justice (Sir Robert Stout) delivered his decision yesterday in an extraordinary will case, which he allude ed to as unique, and had no exact precedent for the orders which the court was asked to make. The testator was a farmer named 6amuel Gower, who resided in the Patea district. In 1910 he married hi 6 deceased brother William’s widow. He was a Protestant and the widow was | a Catholic. By our law since 19C0 his marriage was legal in New Zealand. In February, 1911, a son. called William Samuel Gower wae born to him. The infant, when three days old, was baptised by a Roman Catholic priest. The father consented to this baptism. On December 22nd, 1913, when his son was nearly four years old, he made hie will. He appointed the Public Trustee the executor of his will, the trustee of his estate, and the guardian of his infant son. He left his wife an annuity of £250 so long as she remained his widow, the annuity to he reduced to £2OO so long as she occupied the dwellinghou6C on his farm, Hvith furniture, etc. THE SON’S FAITH.

The next gift was one to the widow, tin bequeathing the residue, reference was again made to the question of his Vm’s religion, for the testator directed :

“I bequeath the residue of my estate to my trustee in trust to convert into money such part thereof as shall not consist of money and the proceeds ol the same to invest in any investments authorised by law for trust funds with power to vary such investments at his discretion and to stand possessed of the corpus in trust for my said son on his attaining the age of twenty-one years and not being a Roman Catholic, and 'in the ev»nt of my said eon dying before attaining the a£e of twenty-ono years, or being disqualified from succeeding to such residuary personal estate by reason of his being a Roman Catholic, to divide the corpus amongst all his children, if any, who shall attain the age of twenty-one years equally, and in the event of my paid son leaving no child or children him surviving or capable of succeeding in the case of such disqualification as aforesaid, then in trust for the children of m.y said brothers.”

“9o far as the second gift is concerned, I am of. opinion that there is no condition annexed to it as to the religion of the recipient, and therefore then the eon, whatever his religion may he, would bo entitled to that gift of furniture and effects mentioned,” said the Chief Justice. “The widow is entitled to the furniture and effects untie the son attains the age of twenty-one years ov becomes a Roman Catholic. It is clearly stated that this condition will apply after the son attains 21 years of age. Up to his attaining 21 yam's of age the property will belong to the mother unless, it is said, he becomes a Catholic. There is then a gift over to the son after he attains 21 years of age, but the condition as to religion is not mentioned. I am therefore of opinion that it will not be inferred from the reading of the will.” HIS EXPRESS WISH.

The questions raised before the court were:—First, as to the education of the son by the Public Trustee, and secondly, as to the meaning of the condition of the first gift to the eon, and the meaning of the condition of the third gift to the son. With reference to the son’s faith, the testator had said in the will: —“X appoint my tms*tee guardian of ray infant son as aforesaid, and direct him to bring him up in the Protestant religion and have him educated at Protestant schools, it being my express wish that he should be a Protestant.”

“The Public Trustee asks what he is to do?” continued Sir Robert Stout. “Is he bound to send him to a Protesttchool? llio. mother desires that

he should be educated at Catholic schools, and the contingent residuary legatees do not express any opinion on the question. They do not raise any objection to the trustee educating him as he may consider proper. Now. it is clear that where a direction of this kind is given the conduct of the testator in allowing the child, notwithstanding a direction, to be brought up in a special faith has been often considered a waiver of that direction. There are many cases to that effect. What the father did on this occasion was, first, he consented to the child being baptised in the Catholic Church; second, though not present at this confirmation he consented to his confirmation ; he allowed him to attend the Catholic Church and no other church. Further, in the end, and some short time before his death he himself became a Catholic and died in the faith of the Catholic Church. There are many cases showing that where such action has been taken by the father that this direction in his will will be treated as not binding, apd in my oninkui it is not the function of the court to direct the guardian to bring up the child in the Protestant religion.”

In his will there were three gifts given to his son. First, he devised and bequeathed certain lands, and the words were:

“I devise and bequeath to my trustees. ... in for my said son for his life and so long as he shall not become a Roman Catholic, and on the death of my said son or on his becoming a Roman Catholic in trust for his eldest son for the time being, and if my said son shall not leave a son capable of succeeding to the reversion upon the determination of the estate of my ■aid son he shall leave a daughter. If there were no daughters or son then it went to the children of his brothers. NOT ELIGIBLE IF CATHOLIC. After reviewing the case at length, Hie Honour saia:-—“The fact is that this condition was annexed after the child had been baptised, and I do not krow of any authority that the court las to declare that this condition w void. It is not uncertain; it is a condition such as a testator has a right to annex to a gift, and it means it is not to affect the child, in my opinion, until ho becomes of age. If when he becomes of age he comes to the conclusion that lie should be « Catholic, then he will not bo entitled to take the gift. I am not asked, nor has the court the right to consider, wliether, if he is not a Catholic when the gift accrues to him that if he afterwards became a Catholic the gift would be affected. That was not before the court. That is a separate and distinct question.” The following questions were answered by His Honour:— (1) Is the condition attached to the enjoyment of the life interest in the freehold and leasehold propertv given to testator’s sou “so long as he shall* not become a Roman Catholic” valid? —Yes, valid. (2) Is tiio validity of the said condition affected by the circumstance that the son was, with the consent of his father, baptised in the Roman Catholic faith shortly after birth, and between that date and the date of the death of testator, received, with the testator’s consent and approval, regular religious instruction from Roman Catholic priests ?—No. (3) If such condition is valid, is it operative and effective before the said son attains his majority? If so, to what extent and under what circumstances ? —No. (4) Is the condition of not being si Roman Catholic annexed to the gift of the residuary estate to testator's sen on his attaining the age of 21 years valid?—Yes. (o) If the aforesaid condition is valid, is such son’s interest in the residuary estate affected by his religious upbringing during minority?—No, not by his upbringing. (6) Has such son on his attaining the a ß c .°f 21, notwithstanding the nature of hie religious upbringing during minority, the power whether he will thenceforth cease to be a RomiTn Catholic ?—Yes. PUBLIC TRUSTEE’S DUTIES. His Honour was of opinion that tho widow should have the use of the property until the son is 21. Tho other questions were :—What are the duties of the Public Trustee as testamentary guardian of AVilliam Samuel Gower in regard to his education and religious upbringing, and in particular, in view of the nature of his religious upbringing during tho testator’s lifetime and. of the testator’s own conversion to Roman Catholicism, is it

the Public Trustee’s duty as such testamentary guardian to carry out the directions of the will to bring such son up in the Protestant religion and have him educated at Protestant schools ?

The answer of the learned judge was “No.”

“If it is the Public Trustee’s duty to ignore the aforesaid directions and to bring up such son during minority as a Roman Catholic, what will be the effect of such upbringing on the son’s life interest in the freehold and leasehold estate and on his interest in tho residuary estate?” In ieply to this, tho Chief Justice said the sen’s right to declare his religion at 21 was not affected.

He ordered that the costs of tho proceedings should be paid out of the estate, which is of considerable value, the personalty alone approximating some £IO,OOO. Strangely enough, the father himself embraced the Roman Catholic faith some ten months before his death, though he declined to alter the terms of his will.

Mr C. G. Rose appeared for the Public Trustee, Mr M. Myers, K.C., and Mr H. H. Cornish for tne son, Mr Ruston for the widow, and Mr A. Gray, K.C., and Mr H. F. O’Leary for certain nephews and nieces.