CONSTRUCTION OF A WILL.

Wanganui Chronicle, Volume L, Issue 12145, 1 September 1908, Page 8

CONSTRUCTION OF A WILL.

The next matter occupying the attention of the Court was an. originating summons, J. B. Murray and another, trustees of the will of Jas. S. Smiley (deceased) y. Eliza Smiley. Mr Barnicoat appeai*ed for the trustees under the will, Mr Gordon for the posthumous child, and .Mr Hutton for the four eldest children.

The widow'and younger children were not represented. ; The following questions were submitted to the Court: —(1) Can the trustees of the will during.the lifetime of Eliza Smiley, and so long as she shall remain unmarried, realise the real estate of tho said J. S. Smiley by sale thereof? (2) Who are the three youngest daughters of the testator to whom the trustees are authorised to pay the sum of £100 oh. their marriage? (3) Can the trustees sell and realise the real estate of the said J. S. Smiley before the youngest of the children of the said ,T. S.vSmiley attains the age of 30 years, and after making provision for the payment of the annual income bequeathed" to the • said Eliza Smiley, divide the residue among the children of the said J. S. Smiley? (4) If so, how" and in what manner should provision "be made for securing the payment of the annliil incorae : bepiueathed tb "the said Eliza Smiley during her widowhood? (5) Is the .youngest child tof the testator mentionedin tfie wjill, the youngest child ■living at the date of the making of the said will, or Eileen Rutfy% Smiley, a posthumous child of the testator, born on 15th January, 1896? (6) Are any of the devises bequests or provisions of the said will void for remoteness, and if so upon what trusts :do the trustees of thei will hold the' property of the testa- ,. tor? .{7). Upon what trusts are the accumulations of income in the estate held by the.trustees of the will? (8) Can the trustees apply the whole or any portion of the accumulation of income in the estate for the maintenance and support of the children of the testator, or any of them, and if so, for which of the said children? ■

The testator died in July-, 1895, and left-a will, signed in September, 1894. Ho left a family of six—two sons and four daughters., Six months after testator's death a daughter was-born. The will provided that each of the three youngest daughters should, receive £100 on her .marriage, and also that on the youngest child attaining 30 years of age the residuary estate, subject to conditions, might, at the desire of the majority' of all the children/ be divided equally among them. : The; main question was that of the posthumous child, Eileen Ruby Smiley, as to whether she shared under the will, and, if so, to what extent. Also as toY whether she was to receive a legacy on marriage, and displace tho elder of the threo youngest daughters living at the date of the will. : ' -

.Mr JBarnicoat, for the trustees/ argued that the posthumous child was en- , titled at distribution-to a share in the estate, but, that, for the purposes of the will, she was not to be considered the youngest daughter. ■Mr Gordon, for the posthumous child, contended she was the- youngest child in order of birth, and entitled to a legacy as well as to v sha-e on distribution of testator's property. Mr Hutton submitted that t!i3 vr>n ■-- est child ( referred to in the will was the youn<rc:t liring when Hi© testator died ami not a c bii^ born after his death. ] f not tins wonic! mean a great differej'-.N aa to when tlio property of tbe tes'ator was to bo divided. . Aftci; Leanng argument •of counsel extendn;, over two and a half hours on the yimons matters, His Honour reserved hv> decision, and the Court adjourned at 1 p.m. until 2 p.m