THE GOWER WILL CASE

Patea Mail, Volume XLVII, 25 April 1924, Page 2

THE GOWER WILL CASE

THE APPEAL COURT’S DECISION Judgment in the case of William Samuel Gower v the Public Trustee has been given by the Court of Appeal, sitting in Wellington. The case was an appeal from a decision of the Chief Justice (Sir Robert Stout) in a will case heard in the Supreme Court in Wellington in October last. The appellant, on whose behalf the case was brought, is 13 years of age. The case, as it came before the Chief Justice, was one in which the Public Trustee, as executor of the will of Samuel Gower, farmer, formerly of Patea, and testamentary guardian of Gower’s son, sought the instructions of the Supremo Court .in October last as to his duties regarding the boy’s religious instruction and education. The testator left a valuable estate, ing of land and pcrsondlty; and oy4iis will the income was’ to go to his son for life or until he became a Roman Catholic. On the son’s death, or in the event of his becoming a Catholic, the land was to go to ihe son’s children, or, in default, to certain nephews and nieces.

It was stated that the personalty itself, amounting to aobut £IO,OOO, was also given to the son on his attaining the age of 21, if he had not then become a Roman Catholic. The will further appointed the Public Trustee as executor, and also testamentary guardian of the boy, with the express stipulation that the son was to bo brought up in the Protestant faith. The testator made 'his will in 1914, the son being then three years of ago, and died in December, 1922, It was also stated that a solicitor had called the testator’s attention to the will frequently, and as late as January, .1922, the testator had replied: “Let it stand.’’ So this would prove that he had not forgotten the will. He formerly was a Protestant, but embraced the Kornrtn Catholic faith in February, 1922, ten months before his death, and actually consented to his child being baptised in that faith.

DECISION BY CHIEF JUSTICE The Chief Justice, in his decision, held that the condition attached to the enjoyment of a life interest in the estate given to testator's sou, so long as he shall not become a Homan Catholic, was valid, and that this validity was not affected ,by the circumstance that thts son had been brought up in the Homan Catholic faith, but the condition would not become operative before the son attained his majority. His Honour also held that the condition of not being a Eohian Catholic, annexed to the gift of the residuary estate to the son on his attaining his majority, was valid, and that the son, on reaching 1 the age-of 21, would have the right to determine whether he would thenceforth cease to be a member of that Church. His Honour held that it was not the duty of the Public Trustee to observe the stipulation to bring the sou up as a Protestant, but that this answer did not affect the son’s right to declare his religion at the age of 21. ORDER VARIED ON APPEAL In the judgment of the Appeal Court, which was prepared by Mr Justice Sulmond, His Honour stated:- — i “This appeal relates to the validity and operation of the conditions so attached to those testamentary gifts. The first question for determination is whether they arc invalid as being contrary to public policy. It is contended that a testator is not at liberty thus to bribe or coerce his children or other, beneficiaries into the acceptance or repudiation of a religious faith; that such testamentary provisions are prejudicial to the public welfare as interfering with liberty of conscience and tending directly to religious hypocrisy; and therefore that all conditions so inserted in a will arc illegal and void. 'This contention, however, is inconsistent with established authorities. 1 *

His Honour considered accordingly that the condition of not being a Roman Catholic was a condition subsequent. “The doctrine, therefore, as to conditions subsequent being void for uncertainty, and the gift being consequently absolute, applies to the gift of residue no less than'to the gift of life estate,” the Judge said. “The result is that the appellant takes an absolute estate free from the condition of not becoming a Roman Catholic, and that he takes the residue subject only to the condition of surviving until ho is 21, but free from the condition that he shall not then be a Roman Catholic.” Mr Justice Sim and Mr Justice Stringer concurred in the decision. Mr Justice Adams expressed his agreement with the view held by the Chief Justice.