SITTINGS.

Tuapeka Times, Volume XXVIII, Issue 4358, 8 July 1896, Page 5

SITTINGS.

DUNSDIK , :> , Wednesday, , July J; (before, Honor Mr Jujtio* WUliajni*} < BOBBRTBON AND OTHKHS V. BOBXBTSON AMD '• t . • ' «th*rs. • ; .. , ": . A suit for the interpretation of the wiH «I tb« ute Peter BQbertß6li» of LwrreUbe, aheap- {armor. . .;-,;.-;•., - „ ,t> ; „fr ' -Mr Sim appeared for the plaintiffs, Thomas Gilleepie Robertson (of Henot, sheep farmer), Robertßobert6on(of Lawrenae, stock dealer); William Alexander RoberUOn <of Lawrrtoce, shepherd), and Margaret Stewart (of Law: rence, /widow)^ Mr Chapman, <withhiniMr J. A.. Cook, for the defendant James Robertson (of Lawrence, farmer}; and Mr CM. Mouat for the defendants Janet Gillespie Robertson (of Lawrence, widow), Jessie Talboya <wife of William. Thomas Talboys, of (Cromwell, draper), and Catherine Mason Mfßeath (wife of William M'Beath; of Dnnedin, 'manufacturer's agent). ~ ' > In the statement of claim it was set forth that the deceased died at Lawrence on the 24th O6fcobei>, .1893, leaving « -tfill bwn>g date l 3rd Janei 1895, with a codicil bearing date 28th September, 1885,. of Which he Appointed 'the defendant James. Robertson sole executor. The defendant Janet (Git lespie 'Robertson was the widow of Peter Robertson, and the other parties to the action were the children. A question had arisen ias to whether the defendant James Robertson was by the -mil entitled absolutely) and ior bis own benefit to the free-hold-farm adjoining the town of Lawrence, containing 386 acres, the freehold sections in the, town of Lawrence, and thestock, farm implements, and plant, or if he holds the same in trust, and, if so, in trust- for whom? A- further . question which had arisen was in .wliat Shares and proportions the proceeds of the Greenhill Farm and the other property devised and oequeated to the ohildren .were $o be divided among them, it being impossible to divide the same in the shares directed by theiwilL .- . In. the statement of, defence the defendant James 'Robertson said that he was entitled .Absolutely .and for his own benefit to the freehold farm,' containing 386 acres, adjoining the town ' of .Lawrence, and the ■freehold Bectipnsan tbe-town of Lawrence. , Tbe remaining defendants, in their statementhof defence, stated that they admitted all the allegations in the statement of claim, and submitted, their rights and,. interests as defendants in the action to this judgment of the Court. 1 Mr Sim mentioned, in connection with the Greenhill E!»rm, that it comprised 63 63rdB. butdeceaaed in his will had dealt out6s-63rds; j n other words, he disposed of 2 63rd8 which he 6'ii nob possess, aa<i it was a question for the Court to say how the- proper proportions were to be arrived at. As regarded the will itself, counsel's contentions "were these: (1) That no words were .used" by the testator which indicated clearly that the defendant James Robertson was to take the property in question absolutely and for bis own benefit ; (2) that there were ,tru3tß clearly declared as to part of both the 'real and personal property in question, .and as there was no gift to James Robertson ,or any other person of the beneficial interest in the part remaining -unconsumed by such trusts there was a resulting trust in favor of the .testator's wife and children, and that as to *ach part they took it as in an intestacy. James Robertson, the defendant, gave' .evidence, after which Mr Sim addressed thfi Court at length on the facts and the law of the case.

Mr Chapman, in referring to the fa,c(B the case, said it was apparent that -Greehhill was a separate property, distant five miles away, with a separate establishment, in a sense — with a separate' 'house and steading. The home farm, mo doubt, was along with the •suburban sections in the Borough of Lawrence, and what was in the will called the 'homestead stood , on one group of town sections. 'On these town sections also stood for working the home farm. No doubt, so far as the accounts went, the 'property was worked as one concern daring ;the <testfttorti lifetime. Learned counsel submitted that -this question must be decided on the construction of the will, upon a > consideration ' of the language used by the testator, 'and of the surrounding cirenm-j .stances. / Mr Cook /said the only dispute regarding -thfequestiori of law in the tease was as to the ot the law to the particular will. The interpretation was as to be ascertained' from tbe words" of "%he will itself. In all .cWeV'wßiah iiad jbeen decided on wills of this sort the judges- had found that it was more or less" necessary to examine the wills minutely to~see if any guide as to the inten•tion of the testator was to be -found in the document itself. The first point that struck ■one in the -will waa-tirat; though 'the testator' ihad *fon*'*i>a»j all- of whom were well ad•vanced in years, he'made the eldest son his, > sole executor, and the devise knd bequest of /the properties were made specifically to him., 'Learned counsel referred briefly to certain - : anomalies in the will, but submitted that if it were lookediatas a whole it seemed perfectly dear that James Robertson was put in charge of everything, and that the testattofs idea was that none of the children •should take anything— there should not -even -be a salary to the executor— until all the debts were? paid off, 'but after the pay■tnent of the debts the testator provided for thVsale of one property, leaving the other •for the eldest'son. > : > ' , Mr Sim having replied, ■ His Honor said ; As' to one branch of this' -inquiry I have no reasonable doubt: As to ! .the other I have very great doubt, indeed, j ■and 'l do not see my way to give a decision j -at present. On the one branch, however, it •maybe as well that I< should indicate my •opinion* bow,' so that, if possible, the parties imay cftme to some arrangement in respect to '.*h'e whole matter, becausei as I have said, -'the other f matter presents great difficulties and there may be considerations affecting it which have not 1 been mentioned in the argument. ■! think; so far as the land is concerned—the home farm and the parcels of -land in- Lawrence— that Jamei KobertßOD <|g ;oatklcd to them in fee simple. The cdnten•tion of' the plaintiffs is that these were only 'pafctially disposed ofbyt the will, and that, 'eoifaras that partial disposition does hoc, extend, there ;is -a "resulting trust in >favor of the next of kin. It is sug--igektart "that the will shows that the gift Jto»? James 1 Robertson was upon a' specific •jtrust,' and 4hat betook tbe land upon that trust' for the purposes declared, and it is JBUggestedthat as thepurpbses declared did, riot exhaust the' whole of the property there .WBsaMtaltingtrustinrespeotof the unexffcauftted -part. : That these parcels of land vdeviseti to James Robertson were subjeot to Joertain trust* insufficiently plain, although the word." trusted is not used in the will., It does not, however, follow from the. fact that the.,prope*ty was subject* to certain, trusts that^hat.SW! Wto Jequired for tha' performance of those trusts would .- result in an intestacy. ' Thtf'rul'e laid down in. ' Theobald op W,il)s,' which is quite in Accordance with the cases, is that if a gift is sub■ject to trusts the donee takes whatis not* required for the performance of those trusts.' On the other hajtd, if a gift is upon trust the donee takes the whole for the purposes de'©lated, arfrt 1 so-far as'the property . fs .not required for those purposes 'these is' a resulting trust,, Vfnji& two heads •the' property falls iathil out aepepds upon

the worjl* -, . of ,- £he : instrument and partly upon the surrounding circumstances. Here we , h£v,e the fact that James Robertson is the eldest son of the testator. There is nothing unreasonable, therefore, in supposing that the testator might give him something more, especially in the way of land, than his brothers and sisters got. In determining this question the circumstance of relationship is admittedly a factor. There jys an absolute devise of these two sections to James Robertson. It is npt *f}d fMtrhe is to hold these sections upon .trjj«t>. He w, however, direoteel to do certain things with' respect "to theße sections and with respeot to other seotions. as to whibh Other sections further dispositions are made by the testator. What, then, do we find by the' will that James Roberttdn is directed to do ? The testator says that bis wife "" shall reoeive from the said James Robertson the sum of fl' per week , for her maintenance daring her life and the fuU liberty of my homestead. V The homestead .stands on part of the sections devised to James 'Robertson. In a previous part of the will. the testator had directed that his wife should "during her life' be entitled to occupy the dwelling-house and garden at present occupied by " the testator LawrehDeJ" Taehaawj wad garden stand upon the homestead. If the testator devises the land in fee to James Robertson, 'having previously given the right of occupation to his wife, and he directs that James Robertson is to allow his wife fnllliberty of his homestead, it means this ; thaj ,t;he land on which the homestead stands is by, wjtl to "be James Robertson's, but he is to allow the tjejstjator's widow to occupy it! That certainly seems to me to bring the gift of this land to James Robertson within the first, category mentioned by Theobald as a gift subject to trusts. Then James Robertson is 'directed' to repay a debt due by the testator to his wife, with interest, " out of the properties hereinbefore devised and bequeathed to him. " That certainly is nothing more than a charge. Then there is the further.directiou that he, is to " farm and manage, the lauds hereinbefore devised to him until clear, from all debts and encumbrances. 1 ' That also implies that if the land ha? been devised to him, and no other trust has been imposed upon ' it, that land is his —that he w to work it up to a certain time for. a specific purpose. That, again, seems to me to be nothing more than a charge. . The parts of the will 'I have quoted really' contain all the burdens which the testator has placed on the home farm and the Lawrence sections in the hands. of, James Robertson. It is said, however, that there .is a trust of the surplus profits of the whole of the land, including the land devised to. James Robertson, for the benefit of the children.' I do not read this part of the will in that way. It seems to me that the surplus profits there referred to , refer to the surplus profits of the farm at ,j Grcenhill only. There is no obligation on James Robertson to manage the other properties devised to him for the benefit of the estate for one moment after the debts due by the estate have been paid. As there would be no obligation on him to manage the other land devised to him after that point of time, there Would be no surplus profits arising from the management of that land which could come to the other children. For these reasons, therefore, I have no doubt that the two parcels of land do pass to James Robertson. The other question seems to me to be an entirely distinct one, and the subject of very different considerations, and I shall have to take time to consider it, but I hope the parties will see their way to come to a settlement. i

Acting on His Honor's advice the parties have siuce arranged a settlement of their differences. The terms of the arrangement are to the effect that the debta are to be paid out of the personal property, and the Green Hill farm is to be partitioned amongst the children.

TABOBN V. BEYDIE.

Claim, £100 damages. Mr Chapman, with him Mr Finlayson (of Lawrence), appeared for the plaintiff, James Taborn, farmer, Tuapeka East; and Mr Sim, instructed by Mr Dalziell (of Lawrence), for the defendant, Alexander Brydie, farmer, Tuapefca £ast.

This was an action to recover the amount above stated, and an injunction in consequence of tbe defendant and his predecessor in title (Mr Wright Lowe) having, it was alleged.straightened, widened, and deepened, the creek at Clark Flat, where it flows through the defendant's farm, thereby caus,ing large quantities of gravel, eartb, and sand to flow down to the plaintiff's land. On the loth May, 1894, the plaintiff commenced < an action against the defendant r in the Magistrate's Court, Lawrence, claiming £ 20 ! damages for injuries caused during 1893 and 1894, and recovered £5 ss, and 'the plaintiff, warned the defendant in June, 1894, >to discontinue interfering with the watercourse, and to take such precautions for the future, by erecting protective works, etc., as would prevent & recurrence of the damage to the land ; trot the defendant still continued to allow the water running in the watercourse to carry down large quantities of debris. In the statement of defence the defendant admitted that in 1893 and 1894 he cleaned' out a portion of the watercourse. He denied that he was responsible for the acts of Wright Lowe, and said that if the plain-, tiff had Buffered any damage such damage' was riot the result of Ais (the defendant's), acts, and that since the 15th May, 1894, no gravel, earth, or sand had been carried by the watercourse from his land to the plain- ■ tiff's land. The defendant also said that if,' the .plaintiff had suffered any damage, such damage had been canoed by the plaintiffs' own act in altering the course of the,watercourse where it tan through his own property. " . ] Evidence wag given for the plaintiff's case by Norman Melville Kirkcalcly (surveyor), James Taborn (plaintiff), William Smaill (farmer, but formerly road engineer in employ of Provincial Government and the, Tuapeia County fe Counqil), James Taborn, jun., °John Robertson (farmer at Clark Flat), Margaret TabQrn, William Clark,', ■William Goldsmith, and the plaintiffs, case: was ,tben closed. • , j Mr Sim then opened tbe case, for the, defence, o&nd called Alexander Brydiej the! ..defendant, James fiiftfy, Wsigat X«owe,) >George ,8. Walker, John Blaikie, John Edie,. Alexander Welson, Henry Clark, and .Walter; Miller. This close, d, the case for the defeuo*. ; The plaintiff s was -then reoalled by Mr Chapman. &nd answered ; several questions, put. by .counsel on both sides. The Ad-, dresses, ot counsel were adjourned until a! day* tfclfe fixed. , ..\