PAYMENT OF TRUSTEES

Poverty Bay Herald, Volume LII, Issue 17133, 8 September 1926, Page 12

PAYMENT OF TRUSTEES

\X AMBIGUOUS WILf

INTER PRETATTON BOUGHT

(Per Press Association.) AUCKLAND, this day

Amhiguity in the precatory clause of :i will created an involved situation in regard to Hie payment of commission lo two or lb roe trustees in tin' estate of John Horhortson, of Auckland, who died lasl January, leaving an estate valued al about £4001). The test at or expressed the wish that, the commission payable to these trustees should be handed by them to the Mayoress's War Memorial Library Committee, and different opinion upon the nature of tho obligation so imposed resulted in an action• in the Supreme Court between Edmund McNair, gentleman, and John Arthur Holloway, .solicitor, both trustees on the one part, and William McKinley, retired farmer, another I nistee on the oilier pari. One clause in the will directed payment as commission to each trustee for their "pains and trouble" in the realisation of his estate and the distribution thereof of a sum equal to ."> per cent, per annum on the gross capital of half: the estate —described by Chief Justice Skerrctt as "a. handsome percentage"—and a similar percentage on the gross amount of the income collected on the estate. The commission on the gross capital value was to be paid within two years after death. A second clause set out that it was the testator's wish that the commission payable to two of the trustees, Edmund McNair and William McKenzie, should be paid over to the Mayoress's War Memorial Library Committee. In the event of either failing to abide by this wish, his trusteeship was to cease and the continuing trustee or trustees would have power to appoint others. TESTATOR'S INTENTIONS. Lis Honor said, the question was whether the second clause amounted to a trust binding on the executors named. The assumption at the basis of the originating summons was that defendants would not carry out testator's wish and it was fair to state that the other trustee. McKenzie, was desirous that the wish of the testator should be given effect to in its entirety. In order to constitute a trust, it was clear that the words must create an equitable obligation -on a trustee, and a characteristic of a trust was that it must be imperative to regard precatory words as a trust. It must be plain that they were used imperatively. It was plain the language in the will was, a. the very best, ambiguous as to the testator's intentions to impose an obligation upon each of two trustees. Answering, therefore, tlto questions stated in tho originating summons, His Honor held (.1) That the trustees wene not .bound in law lo pay to the Mayoress's War Memorial Library Committee any commission payable to Edmund McNair and William MeKenzie; (-'") that the trustees were bound in law to pay the commission specified to McNair and McKenzie. As to the question whether, if either id' the trustees named did not pay the commission he received to the committee, he ceased his trusteeship, His Honor said it was clear the trustees were not entitled to recover commission until the estate had been completely realised. After that their continuance in office of trustee was, quite unimportant and the answer to' the question was, therefore, in the negative. No o'der was made ;s to costs.