INTERPRETATION OF WILL

Otago Daily Times, Issue 22053, 8 September 1933, Page 2

INTERPRETATION OF WILL

—i ♦. JUDGMENT OF SUPREME COURT Judgment was given by Mr Justice Kennedy in the Supreme Court yesterday in a case in which the court was asked for an interpretation of a clause in the will #f the late James Carruthers. Counsel engaged in the hearing of the case were Mr C. J. Payne, who was the plaintiff, and Messrs C. L. Calvert and A. J. H. Jeavons, who appeared for the defendants. His Honor's judgment was as follows: This is an originating summons lor the interpretation of the will of James Carruthers, who died on February 11, 1932. The deceased on August 9, 19L'fj, had advanced to his son, Alexander Denton Carruthers, the sum of £7OO-, which sum, with interest at the rate of £<) per centum per annum, was repayable by 108 equal consecutive monthly instalments of £0 each until August 7, 19*55, on which date (he balance of the principal sum and interest was to be paid. The mortgage provided that th monthly instalments should be applied first in payment of interest and secondly in reduction of the principal sum. Ac the date of the death of the testator tie sum of £124 Is 4d had been paid in reduction of the principal sum and the sum of £207 ISs 8d had been paicf by way of interest. The will contains the following provision :—" And whereas I advanced to my son, Alexander Denton Carruthers, the sum of £7OO on his marriage and a portion of the amount is still owing now I declare that when the said Alexander Denton Carruthers has paid on account of the said advance the sum of £SOO my trustee shall discharge the said Alexander Denton Carruthers from all liability for payment of any moneys owing to me with respect to the said sum of £7OO and on the payment of £SOO as aforesaid I hereby release my said so/i, Alexander Denton Carruthers, from the payment of any balance that may be owing by such son to me in respect of

the said advance of £7OO and interest thereon." It was stated at the Bar that Alexander Denton Carruthers now desires to pay what is required in terms of clause 11 to get a release and the only contested question, although two questions > were asked in the originating summons, • was whether payments made by Alexi ander Denton Carruthers on account of interest as well as payments on account of principal are to be taken into account . in calculating the sum of £SOO mentioned in the clause. In my opinion upon the true interpretation of the will only payments on account of principal are to be taken into account. The testator has, in the recital, shown what he meant by the term " advance " later used when he speaks of having " advanced" the sum of £7OO. Interest owing is not in any sense of the word money advanced, or an advance. It arises in respect of money lent, but it is not itself money lent. The release is then to be given only when Alexander Denton Carruthers has paid on account of the said advance the sum of £SOO. That must mean, when he has paid on account of the principal sum of £7OO, the sum of £SOO. The testator himself has made the distinction between prin-cipal-and interest because in the latter part of the clause he speaks of " the said advance of seven hundred pounds and interest thereon," clearly showing that he treated interest as not being included in what he referred to as " the said advance." It follows accordingly that for the purpose of calculating the payment of £SOO the sum of £207 18s 8d already paid by way of interest cannot be taken into account, but only the sum of £124 Is 4d. The first question asked is accordingly answered, " Payments on account of principal and not payments on account of interest." Upon the second question the parties were in agreement, and I think rightly, that on payment on account of the said advance of the dif-, ferenee between what was already paid on account of the said advance and the sum of £SOO, the plaintiff was entitled to .a release. The costs of the parties taxed as between solicitor and client will be paid out of the estate.