A WILL AND A DEBT.

Taranaki Daily News, 15 March 1916, Page 3

A WILL AND A DEBT.

CLAIM OX AX ESTATE. AN" INTERESTING JUDGMENT. SECURITY FOR APPEAL FIXED.

An interesting judgment was deliveroil by Mr. A. Ciuokc, S.M., at ;I.e Magistrate's Court yesterday. .It concerned the ease in which Philip Eva claimed against John Eva, executor of the late William Eva, £lls ISs, made, up of two amounts of £65 18s, due as arrears for maintenance, and £SO, due under the will of the defendant. It was snown that in July, 11)05. an order lor the maintenance of Philip Eva was made against William Eva, but the order had not been complied with, and the arrears amounted to £<S5 ISs. These arrears hud not been paid when William Eva died. In William Eva's will there was a legacy of £SO to the plaintiff, who now claimed to recover the arrears of the maintenance order and the. legacy. At the hearing Mr. A. H. Jolmstone appeared for the plaintiff on behalf of Mr. A. R. Standish, and Mr. J. C. Nicholson represented the defendant. The evidence disclosed that Philip Eva obtained an order for maintenance against William Eva in IAOS, and he did not. press William Eva for the money, because William promised witness to make a will in witness' favor. Margaret Eva, the wife. of the defendant, said that William Eva came to live at her place about three months before his death. She was present on several occasions when William Eva discussed with jolm Eva the question of transierrii.;: his properties to John Eva. On one occasion William Eva said he wished la leave Philip Eva £SO in payment of the debt arising out of an older of the Court. Robert Henry ,Eva, a son of Margaret Eva, fiaid William Eva told him that he was leaving Philip Eva £SO in place of the back debt ol the Court order. *

In delivering his judgment, the Magistrate said: —"No presumption of nati*faetion in my opinion comes into this case. The amount of the legacy is less limn the debt, and it is not a satisfaction even pro tanto. The fact that the debt is in part statute-barred doe* not in my opinion affect tin* question. A statute-barred debt is due though payment of it cannot be enforced by action. An unappropriated payment bv ,i debtor to his creditor may be appropriated to a statute-barred debt. For the. purpose of considering whether tile legacy was a satisfaction of the sum due at trie date of the will as arrears under the maintenance order this sum must be considered as a debt. Mr. Nicholson contended that there must be tome limit to the amount of arrears under a maintenance order which may be recovered by action, and cited the ease of Wntkbi* v. Watkins in support. In that case it was held that the object' of permanent maintenance was io provide an allowance for a divorced wife to live on and not an allowance which siie may permit to accumulate. Enforcement of payment of arrears tor several years will not be authorised. The judges would appear to have invoked some rate of equity in dealing with an order fen a divorced wife's maintenance under the Divorce Acts, but the decision, as it seems to me, has no application' here, for by section 41 of the Destitute Persons Act, 1910, moneys payable under |a maintenance order constitute a debt, and may be recoverable by action, and ji magistrate would not, I apprehend. I have power to limit the amount to be recovered, even under the equity and good conscience clause. I think that the case of Hammond v. Smith, of Law Series 740, governs this case. There a testatrix who was indebted to the plain' tiff in a sum of money exceeding £sfio gave by her will a legacy of £2OO to her creditor, without expressing any reason or motive for the gift. Extensive evidence was admitted to show that the legacy was given in part payment of the debt, that in fact a time was cieated for payment of it. Hammond v. Smith was, in effect, a ease of an undisclosed trust. The ratio decided on by that case seems to me to apply here. The plaintiff admitted that the testator had promised to leave him what he had and that was the reason why he never pushed him. The testator, knowing that the plaintiff had refrained from enforcing payment of the maintenance moneys under the order on the fact of the testator's promise to leave him his property, gave the plaintiff by will a legacy of £SO instead of the whole of his property as lie had promised. Can it be said'that he did not intend the gift to be in part payment of the debt? Did not the plaintiff by refraining from enforcing the order in reliance on the testator's promise midcj'sland that whatever his brother left them by will would be in payment of the arrears under the maintenance order? "In Hammond v. Smith the plaintiff was led to believe that he would be left a legacy of £3OO, instead of the £2OO which' he actually received under the will. It seems to me that, following Hammond v. Smith, the promise ol the testator, the corresponding forbearance of the claim, followed by the

"ift. of the legacy, constitutes the plaintiff a trustee of that sum, ami that it must he applied by him in part payment ami satisfaction of the debt. I have dealt with this case without taking into consideration the alleged statement, of the testator to the defendant's wife and son. as I do not think such statements admissible in evidence. If they had been made by the testator for the purpose of heiuj!; communicated to the plaintiff and had been communicated, to him, then in view of the evidence of the plaintiff as to the testator's promise, I think they would have been admissible. Tf the defendant had not pleaded the, statutory limitations the plaintiff would be entitled to judgment for the amount of the arrears under the maintenance order, after giving credit for the legacy, but as the statute has been pleaded the amount recoverable is less than the legacy. He can therefore recover the amount of the legacy only." Judgment was entered for defendant for £SO. with £5 3s costs. On the application of plaintiff's counsel, security for appeal was fixed at £lO 10a.