AN IMPORTANT JUDGMENT.

Otago Witness, Issue 2295, 24 February 1898, Page 8

AN IMPORTANT JUDGMENT.

Tha following is the fcexfc of the judgment given in the Court of Appeal by Mr Justice Williarng in the cases of Ruddenklau v. Ruddenklau and Samuel v. Downes :—: — I have i>?.d the advantage of reading the judgment of Mr Justice Edwards in these cases, and I concur in ifc. The acfe provides that moneys payable under a policy shall not btcome available for debts or legacies under a ■will unless specially directed by such will. The* acfc does nob say thai such moneys are to Be held by the executor or admitistralor with the will annexed upoa trusts for the nexb of kio uu'ess specially directed by the will, nor that such moneys are nob to pass under a general bequest of the whole of the property of the testator. If such had been the intention o£ the Legiatature it might have been expected that it would have been expressed in apt words. Id the earlier pact of the same section there is a provision that a policy is not to pass under ■& general assignment inter zivos of the policyholder's property. Had it bvea the intent-ion of the Legislature to exclude policy moneys from a geueral b?quesfc cf the whole of a man's property it would have U3ed similar language. Where a man speaka in his will of the whole oE his property, or of ths residue of hia property after aptcfic disposition, and disposes of tha whole or of tho residue either absolutely oe uf on triut, the M is a special direction »s to the dUposiriun of such whols or residue and of overy ccapoueufe p>ir ( , of hucli whole or rt3idue. If a man eaya "1 i^queath ail my property to A," Hub is equivalent to saying " I hf qneath each and every part of ite property of '"/iiicii I have powev to dispose of by will to A," and is a special direction that each par« is to go to A. Again, if a man directs tbafe mli hia property is 'o form a, common fttud to hh. deulu with in a s lecifi-.'d manner, such a direction is in no iftnse a. legacy. There is nobbing iv v-he act wbieh would fxerapt policy moneys from b-nog subject; to such a direction and from toriniiy part oE such a kind. If there is » epeci*! direction thab debts and legacies are to be p;tid out o£ the fubd ol which the policy moneys thus torm a part, tbferrf ia a special direction thai; such money-i are to be available for t'ae pajmenn o£ debts and legacies. There ii nothing, iv the section which provides that a testator when lie disposes of the whoie or the residue of his property ia to be taksn Jo have excluded from his coosidt ration and to have intended to excluda from his disposition the policy moneys which form a part of his property. To raad such an enactment into the i? ecbiou would be to defeat the intentions of testators by a mischievous fiction. In my opinion the term legacy ia Me section means a pecuniary legacy ua diatinguisiiedfrom a residue. If thera are debts and legacies, and there it no bequest of the whole of the testator's property upon trust to pay debts and legacies, then policy moneys are not liable to pay such debt 3 and legacies. It', however, the whole of a testator's property or the residue is bequeathed either -ibsolutfely or upon trust, such a disposition is not a legacy within the meaning of the section, or it' it is, ("here is a special iJirentioa as to the disposition of eucb whole or residue, and of every p'trb of it. This is in substance the view which has been taken of the section by the prot'efibion for the 18 years tho act hT.B been in operanon. Hundreds of wills., have been prepvred and executed in accordanca with tbin view, have been proved, and the properties di&iribmed. To hold now the contrary would give lisa to eudleaa and cruel litigation. If the words of the act nre so ciear as to compel fclw adoption oE a contrary view, of conrse tlieae considerations have no weight". If, ooW'iver. there is a f,iic doubb a<? to tho con-s-lraclioij of the section, tho constLUction so long ac.ed on »h;uld, I think, be adopted. Bub ia >jiy oj/iozou, apart from these consideration?, the true construction of bhe section is as 1 have above indicated. Iv the result; it; appears that the niemburs of this courS are uofc agreed. This farther result, however, follows, that a section of an act of I J ailume>it, dealir-g with a eubjecfc which intimately affect? nearly every man, woman, »nd child in tfao colony has been so obscurely framed that it has become unsafe for a flying man whose life is insured bo make a wiil of the simplest character unless he has the Judicial Committee of the Pcivy Council afc his elbow. This result ssBms worthy of consideration by those whpse business it is to frame acts of 'Parliament.