NATIVE LAND COURT.

Wanganui Chronicle, Volume XLIII, Issue 15000, 7 March 1899, Page 3

NATIVE LAND COURT.

JUDGMENT IN RE AVILL OF MAJOR , KEMP.

' His Honour Judge Ward has delivered judgment iv this matter as follows : — This is an application by A\ r iki Keepa for probate of the writ of her father, AVeiha Keepa te Rangihiwinui, deceased. ..it the outset of the case Mr. Hutchison, the ppposing counsel, said he had nc objection, to the execution of the will. Mr. Barnicoat then put in evidence declaration of date of death of testator, which took place at AVanganui, on 15tfc April, 1898, of Thomas McDonnell, settin*. forth the details of the execution of the said will. Mr. Hutchison then stated that though |

he did not object to the execution of the will, he does object to probate being granted. He said that certain four parcels of land in the Ust of lands alleged to be the property of deceased are lands in which he Claimed that they were held by the de ceased for others, and if probate were granted, these people might not obtain their rights, if any, to these hinds without much trouble and expenst. - The Court expressed the opinion that probate of this will would not bar proceedings being taken to test the claim of ownership to these lands. Mr. Hutchison also objected to probate being granted, as it would exclude Haruru ■ Xi Te Rangi, a nephew -of the testator. , He understood that as Haruru Xi Te Rangi was so closely related to Meiha Keepa he , was entitled to a share in. his real, estate. The Court expressed the opinion that according to native custom and the practice of the" Court, he was not entitled to any lain! for that reason.Mr. Hutchison then stated that he was instructed to say that. Haruru Xi Te Rangi claims to have been an. adopted son of the - deceased. The Court said if he was an adopted son, then he would be a natural successor, and it would -c the duty of the Court to see whether he had other lands suflicient for his support. On this point lnquiry was made, and it was found that he, Haruru, owned over 600 acres of land, which, ■ iv the opinion of the Court, is amply suf- , flcient for his support. . i Mr. Hutchison admitted this. The further grounds of objection to probate -beiug granted are as f« llo^ : — Mr Hutchison contended that tne will is against the polity of the Native Lands Act, 1894 and 1895. In view of this, it •is important to see whether the lands of Kemp, as shown in the list, are held hy him in severalty, or not. The will proposes to effect" the alienation of land of larger -ilea thau these acts permit pointed that item No. 5 in the list— Rangiwaea, No. 4 B, 700 acres. If that is first-class land, it is more than Section 3 of the Native Land Laws Amendment Act, 1895, permit*?. He stated that h.* was also informed that until the year 1896 it formed an undivided part of the Rangiwaea No. 4 Block. • There again, he urged, was an objection, as the .partition of it took place after the said Act of 1895 came into operation. He fui-ltior - pointed that item No. 5 in the :ist— Ohotu No. 1, 75 shares, being shown w. 2,666 acres. Assuming this to be secondclass land, the area of this parcel » above the limit that may be alienated under the before-mentioned section. He sated that he was also informed that this interest in Ohuhu No. 1 is not a separate one, that the testator is only one of many owners of that block. On these points we say as follows : — That the application before us is under Section 46 of the Act of 1894 ; thafc S-'er-tion 117 of that Act, as amended by Section 31 of the Act of 1895 and Sp>--t-ion 3 of the Act of 1895, which is a clause relaxing the- drastic provisions <>f Section \l7, which two sections should he read together, do not in any way restrict, in our opinion, alienations made .'dhder Section 46 of the Native Land Court Act, 1894. Section 33 of the i**"**,tive Land Laws Amendment Act, 1895 supports us' in this opinion. In tlie course' of ' his argument, Mr. Hutchison appeared to lay great stress , on the f-iet that some of these lands were' not held by the testator in severalty. Here wp ' would remark that Section 3 of the slid Act of 1895, as amended by Section 27 ot the Act of 1896, does nob. require tint land' to be alienable must be held ; n severalty, as the words "separate area." have been substituted for "separate holdings," so that unrestricted land, if within the area limited by the Act, ex- „ cept within the prescribed district, nuiy. "" now be ' alienated quite irrespective of the number of owners. Mi*. Hutchison further objected to probate on Ilic ground that the will is to a trustee, claiming that Wiki Keeps is merely "ihat until Sir Walter Buller's claim is satisfled', and then she is to have what is left of the real estate. Op this matter v.c say that the fact of Sir Walter IluilerV claim on ' the estate ' being so 'prominently mentioned in the will docs no 1 , if itself afford sufficient grounds for refusal of probate. At the same time, we remark that .tie preference to Sir ■ -Waiter Buller's claim on the estate does not •Qpawl' itself to tbe favourable ci?v

J sideration of the Court. AYe now pio- . nounco this to be the last will and resi a- , ment of Meiha Keepa Te Rangihiwniv., j deceased, and we grant probate" the eot i as prayed. Tho Court directs that AA'iki Keepa. enter into a bond of £500, without sureties, to exhibit unto the Court a tine inventory of the estate, effects, and credits of the deceased within mv months, ancl shall reheled an account i-f j her administratorship within one year. The proceedings then closed. ' I