A WILL CASE.

Otago Witness, Issue 2298, 17 March 1898, Page 24

A WILL CASE.

At the Dunedin Oifcy Polica Court on the 9th Agnes Adam, Alfred Adam, Rowland Hill Adam, and Asnes Adam, juu., proceeded against John Treasurer and Thomas Fersuson Adam, executors of the will of Thomas Ferguson Adam, of Opoho (deceased}, last Thursday. — This was a complaint made under "The Destitute Persons Act, 1894." Thomas Ferguson Adam by his will made in 1895 gave his property to various beneficiaries, excluding his wife and tho above-named^ children. The present complaint was issued' against the executors of the will to obtain an order of the court requiring the executors to con- | tribute a weekly sum out of the estate of the \ deceased for tha support of the complainants. — Mr Sim appeared for the complainants, and Mr A. S. Adams (instructed by Mr Wilkinson) for tho defendants. — Mr Sim in his opening contended j that the whole of the e3tate of the deceased ] was, under the provisions of " The Desti- i tute Persons Act, 1894," liable for the maintenance of the widow and children of the deceased, an'l that tlie rights of devisees and legatees under the will must be abandoned to those of the widow and children under the I statute. If it was adrnittel or pioved that there i were assets in the estate, then the court had ' power to make an order requiring the executors , to contribute towards the maintenance of deceased's wife and children without regard to the rights of beueficiares under the will. — Mr Adams submitted that as to the widow the complaint must be dismissed on the ground that a near relative under the act did not include husband or wife, and therefore the estate of the husband could not be liable for the maintenance of his widow. As to the child Rowland, Hail Adam, the

will provided a legacy for him which could 7 applied forhis maintenance, and the executors we. * willing to apply it for that purpose. He, therei fore, could not be hald to be destitute so long as, thi3 legacy was unexhausted. The court coulcTonly make an order if satisfied that the executor-; were ''able to maintain." That must ineai/ legal ability as well as financial. The powers o)' executors were strictly limited and defined by will and by statute. The court could not make an order that would compel them to commit a breach of trust. In fact what the court was asked to do was to revoke the wiij of the testator and make a new will for him, and there was no authority to .do that. The acb applied only to cases where the executor had funds under the will which could be applied for the benefit of a destitute person and which the executor neglected or refused so to apply. For instance, where an executor claimed hi 312 months within which to wind up an estate and refused to pay over, and the legatee ia the meantime was aware that the executor held moneys bequeathed which he refused to pay over or apply them for his maintenance while he (the legate*') was under age. Executors had no power to seli land except under the Administration Act of 1597 for the purpose of paying d<sbts aud duties. The court could not malce an ordes. 1 under this &cfc to affect the estate only. Ths order must be personal and involve personal consequences. In thia case if an order were nude the executors must be personally ordered to pay and their j estates would be liable on execution and not the t estates of the testator. The question 'involved ia the casa raised questions of title to land and the-tv-nstruetioa of trusts of wiUs, and was not wifchiu ! the jurisdiction of the court. On Thursday moraj iper Bis Woi'dhip give judgment as follows:— " Theru ar<j four cjoiplaints for maintenance order* under ' The Destitute Persona Act, 1894,' against the defendants, the executors of the will of the late Thonia-s Ferguson Adam. Section 7of ; the act provide;, that the near relative of a ; destitute p3rso->, if such "near relative is of suffi-. eient ability, is 1 able! ro maintain every such ' destitute psrsou ; and section 2 includes th« executors or adiiitriistr-itora inihe interpretation " of the words ' uear relative.' In the casa of Mrs ' Adam, the widow af the deceased, the executors : are not near relatives within the meaning of the , ac^ and hsr claim, it has been admitted, cannot , succeed. In reapect of the son Kr.wland Bill, 1 he is entitled to a legacy under his father's will, 1 and by order of the Supreme Couit that could Ibe ni'tde available for maintenance so far 'as it, would go I think, at any rate, beforeI could hold, that lie v/as destitute, there Bhuald lie evidence that there had been an application made to the Supreme Courb to apply money io that way, and that it was imsuc-ce-siful. The two children Alfred and Agnes, io 1 - whom their father made no provision, are destitute, and the defendant?, as executois of their father's will, arc near relatives within the , ma.iniug of the act. The next question is whether ; they hive ability to contribute to the maintea- , ance out of assets they can control. The estate is n, small one, coaMsting ot cash in bank, a lifr. insurance policy, aud real estate. Tho cash is nor nearly sunigieat to piy th» debts and costs of administration. Th-j life policy is specially appropriated by the will to the wyment of iegiici^, aud as, with the exception of th&legxcies to Rowland Hill the money has been paid to the bentficiaries, 5t would be idle to discuss whether sued moneys ar-2 protected against claims of U-is nature, beciuse they are not bow under Ils control cf the executors. The leal estate c -'hprife^ two houses— one deviled to a daugaler, Elizabeth Ad«m, and a smaller one to a sot;, Thomis Ad'ijn. The daughter has arranged « th*t tha family bhall continue to live in the i house devised to her as heretofore — aa arrangeI ment, it seems to me,- advantageous to. tbeie j two - children. The only other asset is ; the small liouse devhed to Thomas . A'lain. ( 'J hi evidence <io«?s not show the' value, but it c'ani Hot be much," and \t stems that'vne of tlie ttfo J 1 house.! will have to be aeM to clear the debts and ; expenses. • Taking those facts into consideration, j I do not fuel satisfied that the executors are able I 10 contribute to the maintenance -of the 'two I children, independent of the question whether [ section 24 of the act applips to an order iuai?& I against any executor or administrator.- I feel ; great doubt on that point, and am inclined to the j L-pinion that it applies only to the estates of i dec >a(rad persons against whom or iero have be^a ! made under tbe act in their lifetime. The decision in each ca^eis for tils def ma =1.1 3.