CIVIL SITTINGS.

Otago Witness, Issue 2170, 26 September 1895, Page 13

CIVIL SITTINGS.

Tue9da.y, September 17. (Befora his Honor Mr Justice Williami.) CAMERON V. CHRISTIE AND OTHERS. ka. action for the interpretation cf a will. <fee. Mr Hosking appeared for the plaintiff, William Hobert Cameron ; Mr Sim for the defendant John Christie ; Mr D. Reid for the defendant James Christie; and Mr Thornton for Dr William Ledingham Christie and William Ernest Christie (an infant). The statement of claim Bet forth that William Christie, late of Warepa, farmer, deceased, waa .on November 4, 18il2, the owner of two farms in the Clutha district, known as Keithmore and Kaihiku respectively. By a deed dated November 4, 1892, the deceased and his son John entered Into a paitnership for a term of five years upon and with the said farms and certain stock and implements. William Chrittie died on February ,20, 1894, and tbe partnership subsisted down to that time. The deceased left a will, dated 29th December 1893, by which he appointed William Christie and the plaintiff txecufora. William L Christio was at the data of the aece.»sed's de-tth, and had since continued to be, absent from this colony, and the will of the ;deceaßed; deceaßed was proved by the plaintiff. By the ■will the deceased gava to his wife, Mary Christie, absolutely, all his household furniture and effects in his residence at Keithmore fai m, and also gave to %er a yearly rent charge of £50 for her life, which ywas expressed to be charged upon Keithmore and "=3lftihiku, and all hi* estate and interest therein. v He devised tbe Keithmore farm, subj-ct to a proportionate part of the raid rent charge, to the William Krnest Christie and William tledinghain Chiistie, in the following shares :— To Krnest Christie a two-thirds share or and to William L. Christie a one-third share or interest. The testator also devised to t James Christie all his estate, share, and interest iv the Kaihiku farm, subject to a propoitionate payment of the rent charge already mentioned and gave all the residue of his real and personal es'ate to his two daughters, E.'spcth Agne3 Oftuierou and Mary Jane Jenkinsoa. 'Jhe two farms at the time of the testator's death stood registered in his own name alone. Part of the Keithcuore farm was subject to a mortgage fiora •the deceased to the National Bank of New Zealand (i imited), for th- purpose of securing the balance of tbe deceased's account current with the bank. Part of the Kuihiku farm was also subject to a mortgage from tbe deceased to "William Tel ford and others to secure the payment of £?50 by two instalments of £375 each, together with interest thereon. A further part of the same farm was subject to a mortgage uuier which the sum of £450 with interest was sacured. Shortly btfore the death of the testator William Christie his residence on the Keitbmore faim and the furniture and effects wore distrojed by fire Th" reddoncewa^ insuud with the National Pire und Marine Insurance Company for £200, and the furniture with the same company for jEll'O, and both such insurances were effected in the name of the deceased alone. No reinstatemriit of the residence, furniture, and effects tootf place in the lifetime of the deceased, and he expressed no intention or election whatever with regard to the appl'Cation of the insurai.ee nione\s, and these moneys were not p»id over by the insurance company prior to tbe death of the testator, but the same had since been received by the plaintiff as executor of the will. A question bad arisen between the parties interested and the extcutor as to whether Mary Christie was beneficially entitled to the insuiance moneys. Having regard to the provisions c iiittined in the doed of partnership already referied to with leapect to inmirnncc, aud having regard to all the other circumstance* of the race, a further question had arisen brtueen the executor and the p.riies iuleristud as to whom the insurance inoi t-ys in respect of the r^si lence belong. At the time of thi death of tbe testator there was a bounce dueto the bank ou his account therewith, and, the bank requiting payment th>-ivof, the plaintiff, out of mon-ys in hi.s hands which be had received in respect of tbe insurances before-mentioned, paid the sum due to the bank, amounting to £82 1-Js 3d. A portiou, if cot the ■whole of the debt due to tho bank, was incurred for the purposes <>f partnership, and the question lad arisen between the executor and the parties interested ai to whether thes.iid debt or any part of it was payable out of the partnership assets, or was a charge which must be borne by the devisees of Kfi thm ore farm. The instalment of £375, which, on May 16, 1894, became due under the mortgage of a portion of the Kiibiku farm, was uot paid ou tbe date thereof, and, the moitgugces having piessed for payment, the plaintiff, to avoid proceedings, p«d £"200 on account of tbe mortgage, u-ing for tbat purpose p ition of the insurance moneys. A further question had arisen betwe-n the executoc and the parlies interested whether the said of £200 was not, or ought not, to be made a charge on the Kaihiku farm in favour of the devisees of the X' ithmore farm. In consequ -nee «f the provisions of the partuer&h'p dee 1 a furlhpi" question had amen a» to whether any fiurphm of the moituyt left -ftcr leali-atiou of tbo patt crt-hip ass ts was to be applied in di charge of th • mortgage debts on tho Kaihiku farm The executor w.ib unuble to fully administer tbe es ate of the decc'sei until all que tions missing in connection with the will and partnership liad been determined by the court. The plaintiff therefore prayed (I) that the court would interpret the will and ot<ed of partnership, and declare the rights th-ieunder of the parties interest-d ; (2) that the es ate of the deceased might be wholly or partially adminihtered by tho court as the cas3 might require ; (3) that all necessary inquiries and Accounts might bo had and taken Mr Hoßking paid the defendants who did not appear were Mary Christie, Elspeth Agues Cameron, and Mary Jatie JenkiiißOii He supposed thty were content to leave their interests in the hands of the court... Affidavits were fih-d, so tbat all the parties were'bef re the court. The whole of tbe iWa'ionsin the statement of claim had been admitted by the defendants except that one which B«id that portion, if not the whole, of the debt due to the bank was incurred for the purpose of the partnership. With tbat exception t»>e statement of claim was admitted by all the pailies, except tbe infant. Plaintiff would have t . prove the allegations in order to bind him. Learned counsel osk< > '1 the of tbe court won the f Ho" ing qne-tiqn.s : -(1) Is Mis Christie < niitl. d to the insurance moneys on tbe furniture at Keitbmore left to her by her husbuid's will but destioycd by lire before his death? (I) Are tho c who took Keithmore under the will entitled to have the insurance moneys on the house burnt down before the testator's death applied in rebuil ling' (3) In estima'ing what prop >> tions the annuity granted to Mr.-.' Christie is to be charged on Kaihiku and Keitbmore are the encumbrances to be t»ken into acrount' (4) Was the debt to the National Bank a partnership debt, and therefore liable to be paid out of partnership assets? (5) Is the executor entitled to a charge upon Kaibiku for the £200 paid in reduction of the instalment of mortgage ? (15) xre the mrplus moneys left after realisation of the piitneifhip aisets to be applied in diacbaigH of the encumbrances on Kaihiku ? Jo-eph S. Webb, ma- ager of the fire department in the National Insurance Company, and William Robert Cameron were called by Mr H' sking and gave evidence for tbe plaintiff. Mes&rs Sim, Ite'd, and Tbo-nton subsequently addressed the court on behalf of their respective client*, and Mr Ho*king having replied, His Henor said : I have no doubt as to any of the questions tbat have been raised with the exception, of course, as to the seventh— as to the crop. That question has not bten raised in the pleadings and it cannot be decided now. It mii3t ne left open, I suppo.-e. As to the others, the first question is the destination of the insurance Jnon^y on t 1 c furniture at K< itbmore, which was desiioye^ by fire in the lifetime of th: testator. It is quite clear that that goes to the general personal estate of the testator. The case of Durant y. Friend is a conclusive authority. I tbink also that the proceeds of the insurance of the boiw at Keithmore which was destroyed by fire during the lifetime of the testator also go to the general personal estate of the testator. It is true that by the terniß of tbe partnership deed between tbe tcßtator and John Christie ruoueys received from insurance on the house were to be expended in rebuilding. The death of the •JUtoT, however, dissolved the. partner-

ship between himself and John Christie. John Cnristie has now no say in the matter, aud no one else but John Chiistie can set up any rights under the deed of partnership. Tho principle of Durant v. Friend applies also to the c*ae of this money. The nature of a contract of insurance is very well explained by Lord Justice Brett in the caee of Kayner v. I'rcston. It is there slnwn to be merely a peisonal coutract for payment of money. This contract became biud ing | upon the insurance company during the life of the testator, and being a personal contract it passes | to his personal representatives and forms part of his personal estate. If the insurance company had exercised their right to reinstate, or if anybody, who by Btatute had a right to call upon the company to reinstate, h%d exercised his riprhfc, the matter would have been different ; but there was no reiost ttement or claim for reinstatement. The insurance company simply paid tbe money. That this is the law is recognised in "Bunyan on Insurance," and the American case of Culbertsoa v. Cox is not inconsistent with this view. In that case a fire took place after tbe death of the testator. With respect to the appointment of the annuity, I am satj-fi^d that it should be apportioned in p oportion to the value of tbe land, npart altogether from encumbrances upon the land. It has been called an annuity; but it is not, of course, an annuity. It is a rent charge charged upon the land and issuing out of it. There is no personal liability on anybody to pay it. If a testator devises a rent charge, making two distinct parcels of land subject to it, and afterwards devised those parcels of land subject to a rent charge, there can be no que-dion that the apportionment of the rent charge would be in propoition to the value of the land out of which the rent charge issues— that is, apart altogether from any encumbrances that may exi-<t upon the land. Ab to the fourth question, the balance due to the bank is certainly payable out of the gener*l estate of the testator, and not out of the pirtnership property. At the time the partnership was commenced there waa a debit balance of £216 due by the testator to the bank. At tbe time the partnership came to an end tint debit balmce was reduced to £80. The £80 was, therefore, in no sense a partnership liability, but waa part of that liability which exi-ted prior to the commencement of the partnership, and was nn individual liability of the testaior only. As to the fifth question, it is admitted that this sum of £200 having been paid out of the general estate of the te-tator in respect to the mortgage due on the Kaihiku pioperty, tbat sura is propei ly rhaigeable on Kaihiku, ami tbat the personal estate is eutitled to a charge accordingly. As to the sixth question, it feeeiiu to ma that tbe only reasonable construction that can be suggested fo as to make tbe two clauses of the partnership deed intelligible is that which the three learned counsel of the bar have assented to. In order to give full effect t? Ihe eighteenth section of the partnership deed it is necessary that that construction should be placed upon if, and if section 19 i*an be co construed as not to be inconsistent with section 18, then it ought to be fo conslriud. The only way to put uicb a construction upon it is^to adopt the constructi <n biijrgested— that is, tba^tbe partnership debts, including the mortgage, are to be piiJ, tbe mm first resorted to b'jing the money mentioned in the fifteenth clause, and then th« chattels mentioned in the J third clause, 'lhat disposes of all the questions j raised Mr Hoiking asked his Honor to make a declaration with regard to the £80 odd which the executor had paid to the bank out of the insurance moneys. His llot.or Paid the executor was to have a charge on Keitbmore for the -tmount. The question of costs was reserved.

Thursday, September 19. the mayor, councilors, and citizens 01' the CITY Ol' DUNKDIN V. WEDGE AM) TIIK MtYOII, C >UNCIM,OKS, AND DUKtiKSSfcS OK THR HOISOUUII OF KOiLYN. Claim, £80, amount of two auctioneers' fees paid to the town clerk of Roslyn (C. Wedge) by Kden Bowler, of Kot-lyn. After council's argument had been heaid, HU Honor gave judgment us follows : — As to tbe mcan'ng of the voids "u>ual pla-e of business" in section !), I agree with Mr ''iivigitt's contention that thiy mem " usual place of busiuess as auction** r," und do not refer to any other business that may be carried on in addition to or iv conjunction with the business of an auctioneer. 1 also think ibat the meaning of the words "usuil place af business" mean-, as I have siid in another rape, "tbo hu»ine«s domicile." Tb" question then arises : What, at the time these feet were rcci ived, was th« biiainn s domicile of Mr B >wler as an nnctioiiier? ><nv, although Mr Bowler was in the position of a strv.vnt to Wright, Stepbenson, and Co., and ciiidii'ted auction mles as such a «ervant, he cannot get rid of tho individual liability which the act imposes upon him as an auctioneer. It docs not follow, of c iiuse, because Mepsrs Wright, Stephen*on, and Co. had their business domicile in Dunedin, tint therefore Mr B iwlcr has his ; but, ou the other hand, it does not follow, became Mr Bowler (in his relations to Wright, Stephe>.son) was merely in tbe position of a servant, that therefore, under the circumstances, his domicile could not be at their headquarters In order to determine what tbe business domicile of an auctioneer is we have to consider what tbe duties of an auctioneer are. He has, in the first place, to receive instructions from people wishing to conduct auction tales ; then he his fo c nduct auction hal»-8 ; then ne has by virtue of the act to render account sales of them to the pernons on whc»e behalf they were conducted. I have very little doubt tbat Mr Bowler, under tbe act, though be was merely a servant of Wright, Stepbenson 1 n, would, under section 18, have been liable for a default iv rendering account sales to the person whose goo Is weiv sold. In the pre g ent case Mr Bowler received all his instructions to catry «ut auction pale 3 from Wright, Ste.ihenson, with th^ exception as he say*, of poisons who came in wanti g to ell hor-est. who Foinctiines gave instiuctions to him. All the iin 1 ructions which Mr Bowler nceived, or tbe enormous u>njoiity of them, would, therefore, be given to Mr B wler at Wiigbt, StepbeiiFon's office. In conjunction with Wright, Stepheuson's ohVe there was an auction mart. At this auction mart Mr Bowler conducted regular auction sales. There was also in conjunc'ion with Wright, Stevenson's oflice a warehouse at which Mv Bowler conducted pales of rabliitikius and small parcels of wool Account siles in re«pect of these sales, and in respt-ct of sales conducted Iby Mr Bjwler iv all other p-jrts of tbe | country, were prepared by Wright, Mcphenson at tbsir headquarter/!, and were reudeicd by Wright, Stephensou to the different personß whose goo Is I were sold. Looking at all these cucimistauces, I | have certainly come to the c n,-lusion that Mr Bowltr's business domicile as an auc ; o:ii <!■ wa<at Wright, Stepht:ns'in's headqu irtuM, n.>< w iMistandiug that he conducted part of the bwsin -.-■:! of an | auctioneer— viz , that <>f aclmlly carrying out tbe i sales by aucti m— in different partsof the country. It was at Wright, Stephenson's oflice he received instructions. A great number of sales were conducted there, and tho rest of the duties of i.n auctioneer were performed, if not by him, on his behalf, at Wright, Stephenson's oflice. That being so, the question arisaa as to whether it was the business of the clerk who received theae fees to find out tbe local authority within which Mr Bowler had his businesa domicile, and to pay these sums to the local authority. The obvious intention of the act was that the local au'hority where the business domicile of the licensee was should get those feos It aeemed to me at first a hardship tbat theclerk might be put in a possiblo difficulty in having todeteimine thia. On the whole, however, I tbink tint the clerk is bound to do what the Legislature tells him. The Legislature tells him he has to pay it, and if the Legislature says so it must become the duty of the clerk to ascei Uin to tbe fund of what autho> ity he has to pay it. If the clerk is in any doubt or difficulty a3 to whether he should pay it to one authority or to the other he can notify the different authorities, aud hteps could be taken to leave them to fight out the question. I think, therefore that Mr Bowler's bu-iness domicile as an auctioneer at the time these sums were received was at Wright, Stephensou's heaiquartars at Dunedin, and th*t these sums ought to have been paid to the fund of the City of Dunedfn ; and, not j having been paid, the party who has wrongfully 1 paid them to the Borough cf Ro-Iyn and the Borough of Roslyn, which his wrongfully received

them, five liable to make them Rood. Judgment for pi an tiff for j£Bo. Cost-, as per scale ; disburse, menta aud witness' expenses to be fixed by the registrar.