INTERESTING WILL CASE.

Otago Witness, Issue 3005, 18 October 1911, Page 5

INTERESTING WILL CASE.

JUDGMENT BY MR JUSTICE I WILLIAMS. " ' , In the Supremo Court on Saturday morning the 'judgment'of his Honor Mr Justice Williams in the case of Michael Keenan v. Hannah Brown and others was read by the Registrar (Mr Stubbs.). ' The matter was argued before his Honor in Banco on the 18th of August last, on an originating summons for directions for determining the beneficial interest in the will of the Rev. Michael Walsh, of Annandale, Southland. Mr J. B. Callan, jun., appeared for the plaintiff, Mr Hay for the next-of-kin defendants, and Mr White for defendants interested in the letter of instructions. - t i The following is-the judgment: — "This is the will and last testament of M. Walsh, of Annaridale, Southland, New Zealand. I hereby will, devise and bequeath to the Rev. M. Keenan, Riversdale, all my real and personal property according to instructions to be given -hereafter, and I appoint him the sole executor of this my will. In witness whereof I. the said M. Walsh; have hereunto set my hand this 11th day of March, 1907." The will was dulv executed and attested in accordance with the Wills Act. The testator died on the 18th August, 1910, without haying revoked or altered the above will. The affidavit of the Rev. Michael Keenan, tho executor, states that he knew the'testator for about 25 years, and that some considerable time prior to his death the testator informed him that he had made his will, that he was the executor thereof, and that he (the testator) would instruct him later as to his wishes. Father Keenan visited the testator about a week before his death, and urged him to get his instructions put in order, and the testator promised to do so, but he said, and understood, that he had left everything to Father Keenan, and trusted to him to carry out his; wishes. The testator .did not express any wishes on that occasion. Father Keenan visited the testator again on the 18th August, 1910, the day of his death. On that day the tes-. tator, being quite sensible, requested Father Keenan to take down his instructions, and at hie dictation Father Keenan took down his instructions as to the way, in which he wished his property disposed of. It was intended to have the instructions signed and witnessed, but the testator never rallied, and was • unable to sign the instructions. The following are the instructions taken down by Father Keenan: "Wrey's Bush, Ausyust IK 1910. "Letter of instructions from the Very Rev. M. Walsh to Rev. M. Keenan, Riversdale, re arranging my last will : " Dear Father Keenan,—Will you be stood, enough to administer my will on the following lines. Roughly speaking, I understand that the propertv will amount to about £6OO or £7OO sterling. As to the distribution of that amount. In the first place you will please accept £SO for yourself as a little solatium for any trouble you may be put to. Secondly, send to my niece at Home £SO. Thirdly, £IOO for masses for the renost of my own soul. Fourthly, to charities, to be equally distributed among Sisters of Mercy, Sisters of St. Domiirio, Little Sisters of the Poor, and Sisters of St. Josenh." The main object of the present summons is to determine in whom the beneficial interest in the estate of the testator vests. The first question, in my opinion, is whether by the terms of the will the executor took a beneficial interest. That is to say, supposing the testator had died without having given any instructions, would the executor have been entitled to the estate for his own use or would he have held it as trustee for the next of kin. That question must be detei-mined by the language of the will alone, apart altogether from any outside circumstances or from any expressions of the testa-tor. Now the words, "according to instructions to be given l hereafter" are an integral pairt of the gift. Theso words purport to impose an obligation on the executor to whom the gift is made to apply it in such a, manner as the testator may instruct him to do. He i 9 to hold it, not for himself, but upon trusts to be afterwards declared by the testator. The plain language of fihe will negatives any intention that the executor should take a beneficial interest. If the testator dies before he has rriven any instructions the trust intended to be created fails. " If the testator meant to create a trust and not to make an absolute gift, but the trust is ineffectually c?smtsd,

is not expressed at all; or fails, the.next of. i lcih take 1 ' (per Lord' FJdon in Mornoe v. tho Bishop of Durham, 10 ves. 522, 535). "It is not necessary to exclude tho legatee from «. beneficial interest that there jhould be a valid or effectual trust; it is only 'necessary that it should clearly appear that a trust was intended" (per Lord Truro in Briggs v. Penny. 3 Mao and G., 546, 556). I think, therefore, that the will did not give the executor a beneficiarintarest, and that if the testator had ( ,dted . w£ftbut giving any instructions the executor would have held the estate as. trustee tor the next of kin. It is important to-decide this question in the first instance, because if the will gave the executor an absolute beneficial interest there is sufficient authority for the', proposition that what took place afterwards would have made him a trustee for the persons mentioned in _ttie instructions given him by the testator.- The effect of the-will, however, was not to give the executor a beneficial interest, but io give him" the testator's estate upon trusts to be afterwards declared by the testator. The law in a case of that kind is thus stated in Lewin on Trusts (10th edition, page 66): " If . by will personal estate bj» given, upon trusts to be afterwards declared the testator cannot by any instrument not duly executed as a will, and a fortiori he. cannot by pairol declare a >valid trust, but the equitable interest will resiufc to the next of kin, ,or pass to the residuary | legatee." For this the learned author cites the case of Johnson v. Ball (5 De* G. ■■., and Sm., 91) and in the same note re Fleetwood (15 CD., 594) and Riordan v. ! Banon (10 Ir. Rep. Eq., 429) are referred to! The same principle is stated in Williams on Executors (10th edition, page 1224): " If it is expressed on the . face , of ■ tho will that the legatee is a trustee, but. tho trusts are not thereby declared, notrust afterwards declared by a paper not executed as a will can be binding; in such a case the legatee will-be a trustee for those entitled under the Statute of Distributions." The previous cases are referred to in the judgment in in re Fleetwood, | a case which was cited here to show that • there was a valid' trust. That case, however, was altogether different from the pro- | sent. Tho testatrix there made a codicil to. her will by which she bequeathed to James Beaumont lall her personal property "to be applied as I have requested him' to do." Beaumont himself had prepared the codicil and immediately before its execution had taken down a memorandum of the way in which the testatrix wished the property disposed of. This memorandum was not signed by the testatrix* It was held that Beaumont was a trustee for the persons mentioned in the j memorandum. The learned judge in the course of his judgment says: "Can the court allow a trust to arise for the nex< of kin under a gift obtained under sue circumstances as existed in this case, tix~ creation of tho trust and the intended gift being cotemporaneous, and thus there not being any interval allowing of any resulting trust for the next of kin. The declaration of trust was incorporated with the intended creation of the tru6t." In the present case the executor was only informed of the will after it had been made, the creation of the trust and the intended gift wero not ootemporaneous, and there was an interval during which, if the executor did not take beneficially, there was a resulting trust for the next of kin. _ If by the terms of the will there is a resulting trust for tho rext of kin by reason of t>tO failure of tho intention of the testator to create a valid trust for other objects, the executor becomes a trustee for the next of kin. As such trustee ho cannot divest himself of that trust and become a trustee under a trust which the testator, when he made his will, had no power to declare by it. If the will had given the executor the absolute beneficial interest in the estate what took place afterwards would have amounted to an agreement on his part with tho testator to hold it upon the trusts declared by the memorandum. If, however, the executor had under the will no beneficial interest in tha estate, but the beneficial interest belonged to the next of kin, tlfa executor had no powr to deprive the next of kin of their beneficial interest by constituting himself a trustee of it for other persons, as the beneficial interest never was his to dispose of. Nor could tho testator by parol or by document not attested as required by the Wills Act alter the legal effect of his will as originally executed. I think, therefore, that the next

of kin are ertSefed beneficially. I much regret that I am compelled to arrive at this conclusion, as it manifestly does not give effect to the wishes of the testator. To decide, however, that a testator oan reserve by his will the power in the future cf disposition of his property after his decease as he pleases by word of mouth or by a writing not executed as required by the Wills Act, and to give effect to such a disposition, would be in effect to repeal the Wills Act. There be a reference to the Registrar at Dunedin as suggested! in paragraph 2of the summons. Tho co3ts of all patrties of . and incidental to_ tba summons will be taxed as between solicitor and client and paid out of the estate of tho testator.