INTERPRETATION OF A WILL

Otago Daily Times, Issue 19276, 13 September 1924, Page 16

INTERPRETATION OF A WILL

SUPREME COURT DECISION

LATE SIR JOHN M'KENZIE’S BEQUESTS.

At the Supreme Court yesterday his Honor Mr Justico Sim gave judgment in a case heard on Wednesday last. Helten Cameron was plaintiff and John Munro M'Kenzie, Duncan M'Kenzie, and John M'Kenzie were defendants. Mr J. S. Sinclair appeared for plaintiff and Mr J. C. Stephens for defendants. Plaintiff is a daughter of the late Sir John M'Kenzie, who died on August 6, 1901. The two first-named defendants are his' sons, and the surviving executors of his null. The question in dispute between the parties was whether or not the plaintiff was entitled under clause 16 of the testator s will to a legacy of £SOO. In the course of his judgment his Honor said the period of distribution referred to in this clause is defined by clause 10 of the will to mean the death of the testator’s wife. She died on June 3. 1908. Catherine M'Kenzie, his daughter, died on or about November 21, 1918, unmarried and without leaving issue. By her will she appointed that immediately after her death the Heathfield property (including the dwelling house and 10 acres attached thereto) and the trust lor her two broiKers'j the two first named defendants, equally during their joint lives and after the death of both in trust for her nephew John M'Kenzie, son of her brother, Duncan Alexander M'Kenzie absolutely, and in case of hor brother Duncan Alexander M'Kenzie dying before hor brother John M'Kenzie then in trust for her brother John, and the issue of her brother Duncan Alexander, so that each issue should be entitled to one-half thereof amongst them, and in case of her brother John dving before her brother Duncan Alexander M'Kenzie then in trust for her brother "the the said Duncan Alexander M'Kenzie during his life. The plaintiff claims that in these circumstances she is entitled to the legacy of £509 referred to in clause 16 of the will. This claim is disputed by the defendants, who contend that the plaintiff was entitled to the legacy only in the event of the testator’s sons taking Heathfield in default of appointment. That, in ray opinion, was the intention of the testator. It is true, as contended by Mr Sinclair, that the word “inherited” might cover a talcing under an appointment such as was made in the present case. Whether or not it ought to bo so construed depends on the context. In the present case the gift of the legacies is contained in the passage beginning with (ho word “Provided.” That passage was intended. I think, to operate as a proviso to the gift to the sons in default of appointment, and was not intended to extend beyond that. The reason given by the testator for bequeathing the legacies to his daughters makes it clear that he was dealing with the devise he himself had made to his eons in default of appointment, and that he had not in his mind the contingency of the sons taking some interest under an appointment which his daughter Catherine might make. But any doubt about the testator’s intention seems to be cleared away by the direction os to the payment of the legacies. They are to be paid within six months of the date of the vesting of the fee simple of Heathfield in the two sons. That plaimy refers to a vesting under the devise made by the testator to his sons. Mr Sinclair relied On the words “their issue” as supporting the plaintiff’s contention, but the use of these words is explained by reference to flie substitutionary gift contained in clause 21 in favour of the children Of any child dying before the period of distribution, and the words cannot, be treated as referring to a taking by the issue of the sons under any appointment. The. result is that the plaintiff is not entitled to the legacy she has claimed.