IN CHAMBERS.

Otago Witness, Volume 25, Issue 2321, 25 August 1898, Page 23

IN CHAMBERS.

(Before His Honor Mr Justice Psnncfatt < r.) Probate was grated of the wills of John Lierl Payne), Samuel William Gibbs (Mr Cook), and James Mackay (Mr Sim for Mr DaJzv '!). Letters of administration were granted r 1 (ho estates of George Gray (Mr Russell), Ann Proudfoot (Mr Brent), and Francis Mulroor.f/ (Mr Cook). The Executors of Bryan Cecil Ilaggitt (deceased) v. the Government Life Insurance Commissioner aud Others.— This was an originating summons to determine the rights of parties with reference to an insurance policy for £1000 on the life of the late B. C. Eaggitt. Mr Hosking appeared for the plaintiffs, Mr Sim for the Commissioner, and_ Mr Cook for the adult children of Mr Haggitt's first marriage, Mr Woodhouse for the infant children of the first marriage, and Mr Solomon for the children of the second marriage. — The facts wero that Mr Haggitt effected an insurpnee for JSIOGO in the Government Life Insurance Office in November, J. 870. In June, 1871, he endorsed on this policy a declaration in the form prescribed by the regulations that the policy was effected for the benefit of his wife and children, but he did not give to the commissioner the notice required by " The New Zealand Government Insurance and Annuities Act, 1870." Subsequently deceased caused inquiries to be made as to whether the endorsement had been brought Under the notice, oi 4^3' commit- " sicner, and was lufctuled that it had not, and tiie department thought he should cancel it. He therefore, made a further endorsement on the policy, purporting to cancel the first endorsement. On Mr Haggitt's death application was made by the executors of the will for payment of the amount of this policy, when the Insurance department stated in reply that they were advised they could not pay the executors of the will, inasmuch as the endorsement once having been made could not be cancelled, and although the notice required by the act had not been given the declaration took effect in equity as a gift to, or a declaration of trust in favour of Mr Haggitt's first wife and the children of his first marriage, and therefore neither his widow nor the children of his second marriage wore entitled to participate. This surnr mons was therefore issued in order to determine the rights of the relative patties with reference to the matter. The Government Insurance Commissioner meiely submitted himself to the order of the court co as to get a valid discharge.— Mr Hosking explained that the plaintiffs were the trustees and executors of the late Mr B. C. Haggitt's will, and the defendants represented the whole of his children. There were two infant grand-children who were not before the court, as it had not been thought necessary to bring them specifically before the court until it was ascertained if thoir interests were different from those of tho other defendants.— His lEonor: Their interests Would be hostile. The a.lult children of the first family have consented to what is against their own interest. The grandchildren are in tho same position as the adult members, and would consent but that they are infants?— Mr Hoaking: In one view of "the matter they may take an interest; in another view they may not. — Mr Woodhouse: They take an interest if it goes under tho will.— Mr Hosking opened the case, contending that the endorsement had no effect in any way, either under the act or independently of it, and that the proceds of th* lifo policy went to the general estate, and w»3 payable to the executors. Counsel cited several atithorities in support of his propositions.— Mr Solomon followed on the same fcide, contending that it tras obvious that Mr Saggittf intended his present family to participate. After Mr Woodhouse had expressed Himself

that lie preferred to leave the matter to the order of the court, and Mr J. A. Cook had intimated that the adult children of the first marriage wished the widow and the children of the second marriage to participate, las Honor gave judgment that the endorsement was ineffectual under the act, not having been completed by the statutory notice required, and being so ineffective could not be given effect to by a court of equity, either as a gift or declaration of trust, because that would be opposed to the intentions of the deceased, derivable from the fact that he adopted the form in tho regulations and had left the endorsement incomplete, and therefore the proceeds of the policy of insurance must go to the executors and be dealt with according to *ie will of the testator.