INTERPRETATION OF WILL

Otago Daily Times, Issue 23223, 22 June 1937, Page 2

INTERPRETATION OF WILL

A SUPPLEMENTARY JUDGMENT DIVISION OF ESTATE DETERMINED His Honor Mr Justice Kennedy yesterday delivered a supplementary judgment in the case in which the Trustees Executors and Agency Company of New Zealand, Ltd., as plaintiffs, sought an interpretation of the will of John Alexander Ewen, of Conveth Potters Bar, Middlesex, England. The defendants in the actions were Katherine Isobel Sargood, of Corowa, New South Wales (Mr P. S. Anderson), William Alexander Sargood, and Ewen Frederick Sargood, also of Corowa (Mr F. M. Hanan), and Andrew David Sargood, of Corowa (Mr H. L. Cook). The plaintiffs were represented by Mr J. S. Sinclair After determining the division of the estate in terms of the will his Honor made an order that the costs of all parties on the subsequent argument taxed as between solicitor and client be paid out of the share of the estate appropriated to the first-named defendant. Giving his judgment his Honor said it was supplementary to a judgment delivered in the case on April 19, 1937. By that judgment the first question raised in the original summons was answered “ Yes,” and the second question was answered with special reference to the proposed advance to William Alexander Sargood. The purpose of this judgment was to supply a more general answer to the second question. The language and scheme of the testator’s will contemplated that, failing the exercise of the power o * appointment by the daughter by will or codicil to the contrary, there should be equality of interest for the daughter’s children. This equality of interest was expressed in clear terms and could not have been intended to be defeated by the exercise of the power of advancement which was a discretionary power given to the trustees in the next succeeding clause. This power to advance or apply was in respect not only of a presumptive or a contingent interest, but also in respect of a vested interest. Its exercise would take moneys out of the settlement in this sense that they were beyond the control of the trustees, but in the absence of appointment the advances, being made in respect of a share and to reach equality, must be notionally brought into account for the purpose of determining the share which any child took in the absence of any exercise of the power of appointment. The sum, therefore, which might be advanced to any child was one-half of its then presumptive, contingent or vested share. In ascertaining such share at any time there must be notionally brought into account sums applied by the trustees in exercise of the power mentioned, the then value of the share remaining appropriated to the daughter must be taken, and the then number of children who had presumptive or contingent or vested interests. In particular the amount of maximum advance was not one-half of the then share which remained in the capital fund after deducting the sums already advanced as if that remaining was alone the fund in which the children, including those advanced, were then to share equally. Such a view would lead to the arbitrary results mentioned in argument. “At the adjourned hearing,” said his Honor, “all parties represented by counsel were concerned to submit that the proper interpretation is that outlined above. On this view if it is assumed that the value of the share appropriated to the daughter and her children remains constant, and the number of those entitled to share not to be varied, the maximum amount permissible to be advanced to each child would be an equal sum and not, upon a contrary interpretation, a sum greatest in the case of the first advance and diminishing in respect of each child subsequently advanced.” The costs of all parties upon the subsequent argument taxed as between solicitor and client will be paid out of the share appropriated to Katherine Isobel Sargood.