A PIONEER’S WILL

Poverty Bay Herald, Volume LXII, Issue 18759, 16 July 1935, Page 13

A PIONEER’S WILL

BEQUEST MADE IN 1847 INTERPRETATION BY COURT Decision was given by Mr Justice Dalian at Auckland on the interpretation ,ii a will made in Auckland in 184/, Jive wars alter the conveyancing ordinance'of .1842. The will was made by Thomas Davis, of Auckland, sawyer, and in it he left to his daughter Ann a section pi' land in Durham 'street in the “Town of Auckland. ’ the devise was worded, "I give and devise to> my daughter Ann Davis, now Ann Ryan, wife of John Ryan, of Auckland, shoemaker, all that piece of land having a frontage of 19ft to Durham street to have and hold the, same to her sole and separate use during her natural life ami after her decease to her heirs forever.'’ . . Mr Sullivan represented the majority ,f the descendants and sought an interpretation of the will as to whether the daughter Ann obtained a fee simple estate, or merely a life interest. Mr. Sullivan submitted the view that she obtained a fee simple. Mr Zinian, for other descendants, supported this view. The Public Trustee was represented by Mr Cooker. It was disclosed in the evidence that the daughter Ann died in 1910 and since then the estate had remained unadministered. In his judgment His Honor said the essential words of the clause lie was called on to interpret were, “I give and devise to my daughter Ann a named freehold property to have and to hold the same to her sole and separate use during her natural life and after her decease to her heirs for ever.’’ The substantial question was whether those words constituted two separate limitajons or whether they .constituted a single gift to Ann. His Honor concluded that the daughter Ann took an estate in fee simple which was for her sole and separate use during her life, and that, section 7 of the' Property Taw Act, 1908. did not apply because there were not there two limitations. Vlt was primarily for the administra!l,ok to determine the beneficial ounorship. His Honor did not think the evidence'at present on affidavit was sufficient for\tlie purpose, but in any event an attempt ought, not to bo made until the administrator had been appointed and could be made a party to the proceedings. \ Du the question of costs His Honor said he was informed that tlm last tlovei'iinient valuation of the property made in March, 1922, was EJ7OO, that, the. Public Trustee was bolding a. sum of £403 accumulated income and that the rental was £52 a year. He fixoil the following costs to bo paid out ot tlm estate of Ami Murphy:—To the plait)tilFs,.;2sgns: 1;o, the'Public Trustee, 20gns; and lo the defendants, Alfred N’oycr, Ivrilest Rnhilly and Walter Raiiillv, 20gns in each case, together with disbursements as fixed by the registrar.