COMPROMISE WANTED

New Zealand Times, Volume LII, Issue 12252, 25 September 1925, Page 12

COMPROMISE WANTED

LAND BOUGHT AT BOOM PRICES SUPREME COURT ACTION FAILS. Judgment was delivered yesterday by Air Justice Ostler in a case in which a petition was made to the Supreme Court ior approval of a compromise made by an executor and trustee of a will. William Sydney Hart died on July 10ln, 1919, and probate of liie will was granted to Hugh M'Leon Campbell, of Poukawa, sheeptarmer. The testator had owned a leasehold property at Itiku, containing 419 acres, and on January I9th, 1920, the executor, under the powers vested in him by the wi.l, sold this property to Victoria Aniohau Bennett, wife of Henry Hargaville Bennett, ior £8585 15s *7d, oi which £2247 8a lOd was paid in cash, and th > balance was secured by a mortgage to the executor for £0442 6a 9d. The land was sold at the top of the boom prices, and it was stated in the petition that the full value which the land would now realise in a forced sale, in the executor’s opinion, was tot more than, £3500. The executor had been approached by the mortgage! with a request to reduce the amount of file mortgage to £3500, and he had agreed to this subject to various terms, one of which included the obtaining of the approval of the Court, which was now sought. The executor was out ol New Zealand, and had apparently given a power of attorney to the two petitioners, Messrs Ebbett and Gifford, solicitors, of Hasting,',, This power of attorney was intended to be attached to the petition, hut bv an error this was not done. The Judge said the proceedings were not in order, and a judge had no juris-

diction on an ex part© petition to sanction such a compromise by an executor. By section 2 of tlio Trustee Amendment Act, 1924, however, an executor or a trustee with power to act alon* may compound any debt due to the testator's estate without being responsible for anv loss, so long as he acts in good faith. It was therefore quit© unnecessary for the executor it acting in good faith to obtain the approval of the Court. If, however, the executor as a matter of precaution desired the approval of the Court to this compromise he must either proceed by wa.y ot originating summons, or by petition under section 75 of the Trustee Act, 1908. In cither case the proceedings were not ex parte, but, must be served on such of the interested parties as the judge directed, and those parties were entitled to be heard. In these proceedings, although no doubt intended to be under section 75 of the Trustee Act, 1908, no direction* had been asked as to service, no information was given to the Court to enable it to judge as to who the interested parties were, there was no copy of the will, and no copy Of the power of attorney under which the petitioners purported to act. Under the.se circumstances the motion founded on tfce petition must be dismissed.