SUPREME COURT.

Otago Daily Times, Issue 10619, 14 March 1896, Page 3

SUPREME COURT.

I > IN CHAMBERS. Friday, March 13. (Before his Honor Mr Justice Williams.) 'EE Bill* OF SALE, BROWN'TO INDER AND OTHBRS. I Motion to extend time for renewing roKistrution 'of instrument (Mr Herdman).—Accordingly, till I March 14. I PARKER V. BIACKWOOD AND OTHERS. Summons for order vesting land in tie plaintiff as purchaser (Mr J A. Cook).—Accordingly. FEKR.AB, V. DUNNE. Summons for trial by special jury (Mr D. D. Hacdonald). -Accordingly ; special jury of four. j JOHNSTONE AND OTHER.* V. s'j,AURIN. | Motion that action be carried on by executors of \ defendant (Mr Hopkins).—Accordingly. j m'geohob v. m'laurin. I Motion that action be carried on by executors of defendant (Mr Hoaking):—Accordingly. ■ TITKNBUIX V. UURNETT. ] Mr Sim for plaintiff and Mr Chapman for defendant.—By consent, judgment dismissing action and counter claim, without costs. CAREY AND ANOTHER V. CONLIN AND OTHERS. Motion f.ir appointment of guardian ad lit.em (Mr Holmes).— Accordingly. RE MARY ANN REYNOLDS (DECEASED), Petition for direetionsas to the service of notice on creditors (Mr Gallaway).—Accordingly. FORSYTH V. PORSVTH. He costs.—Mr Thornton applied for wife's costs: Mr MacGregor opposed.—Wife's costs to be paid by the husband; amount to be taxed by the registrar. RE JOHN HOWE (DECEASED). Motion for let.ers of administration (Mr Rattray).—Accordingly, but sureties cannot be dispensed with unless an affidavit is filed that all the debts have been paid. ' R*. ROBERT. SINCLAIR MACDONNELL (DECEASED). Motiou fur letters of administration (Mr Duncan).— Accordingly. UK JOSEPH GRAHAM (DECEASED). ' Motion for probate (Mr Webb).—Accordingly. RE HANNAH I'ARKBR (DECEASKD). Motion for probate (Mr Sim).—Acc;>rJi>ißly. RE ALLAN FORREST ANDERSON (DECEASED). Motioa for probate (Mr Eraser).- Accordingly. muip. v. muir. His Honor gave judgement asunder :— I am of opinion that the language of the duvice to "Sydney Ninuno Muir and his children after him, if any," does not come within the rule in Wild's case so as to give Sydney Ninuno Muir an estate tail.* On the contrary, it comes within tbe terms of the resolution in that case mentioned in th« laat paragraph of the report, which states that if a man devises laud to husbaud and wife, and after their decease to their children, then although they had no child at the time yet every child which they shall have after m-.y take by way of remainder for this intsnt, ippsars that their children shall unt take immediately, but after the decease of tho husband and wife. That is the case in the present device. H. N. .Muir had uo children at the time of the death of the testatrix, and the limitation is to him and after him to his children. This, standing alone, would give S. N. Muir an estate for lifa only, with remainder to the children. Nor can the circumstance that the device is ou the condition that S. N. Muir shall pay a yearly sum to J. B. Allen during the life of the latter have the effect of enlarging the duvise to S. N.-Mujr to a fee simple. The rule that a life estate might be thus unUrtfeu applies only to wills executed before the Wills Act. Under the law applicable to the>e wills a devise of land to A without more gavn A only a life estate, and th« court strugglnd to get rid of this absurdity by sizing every indication of a contrary intention disclosed by the will. The direction that the devisee should pay a yearly sum of money to a third person was therefore considered as indicating an intention that the deviate should take in fee. Where, however,. by the terms of the j devise its=lf a life estate only was given, B jther expressly or by a prior limitation, to A, an 4 a gift over after' his dea.th, the rule did not apply, and I A's estate rennim-.d a life estate, although the devise was clogged wich such a directioa (Boltou v. Bolton, L.R.. 5 ex., 145; and see Dimm v. S ater, 5 T.R., 335 ; Do* v. Owens, 1 B and Ad., 318). Here, therefore, if the rule hid been still in existence, the prior limitation to S. N. Muir and the gift over to hU childrdn would prevent its application; nor cau it be suggested that the words "or aa he will aud devise," occurring as they do immediately after the words (,'iving the remainder to S. N. Miiir's children, could have the effect of enlarging hii estate to a fee simple. In order to give them that effect the prior words relating to the children would have to be deleted, and that, of course, cannot be done. S. N Muir has therefore a life estate only, coupled with the power of disposition by will abovementioned The only remaining quextion is whether this power is exercisable by him so as to override the interest if his children under the devise in the event of any being born to Mm. Ou the whole I thiuk it is so exercisable. If the devise had been to " S. N. Muir and his cniljreu after him or as he will and device," nmittiug thi words "if any," there could be no doubt that a devise by S. N. Huir would tiikc effect notwithstanding the existence of children. Nor do I think- that tha words "if any" alter the grammatical construction. What is suggested is that these words show it was the intention of the testatrix that the e!ause_ should read as if tbe words "if none" bad been inserted after the word " or." The court is in effect asked now to insert these words. No doubt there are cases where the court is comnelled to insert words in a will, but th«re is no sufficient justification for the insertion of the suggested worda in the present cave. Tbe language as it »t*nds is capable of a rational and grammatical construction, and ou?ht not to be altered. It follows from the above that T. B. Muir and Mrs Fitzherbert take a life estate only iv the property devised to them. The questions in ths fifth paragraph of the summons with respect to the clause direel ing accumulations were disposed of at the hearing. The first three questions are answered in the negative, and the answer to the 'fourth was that tho direction to accumulate was distributive.