MEANING OF WILL

Wanganui Chronicle, Volume 72, Issue 91, 17 April 1929, Page 11

MEANING OF WILL

THE BREEN ESTATE JUDICIAL OPINION DELIVERED Judgment has been delivered by Mr Justice Smith in respect of an originating summons to determine certain questions arising out of the administration of the estate of Timothy Breen, deceased. The legal aspect was argued before his Honour on February 25, when Mr V. B. Willis appeared for the executors, Mary Martha Pauline Breen and David Charles Breen, and for Mrs Breen as tho life tenant, who were plaintiffs Mr W. Treadwell appeared for Mary Alice Breen, Nancy Ethel Breen anj David Charles Breen, the beneficiaries who were also the defendants, Mr Brodie for John Breen, and Mr Kelly for the Public Trustee for Timothy Thomas Breon. The testator died on July 2, 1928, leaving a will undated, but executed on November 15, 1927. Probate was granted on July 23, 1928. The will, said Mr Justice Smith, in his judgment, appeared to be holograph, and /as certainly not the will of a literny testator. The testator was surxived by his wife, Mary Martha Pauline Breen and five children, namely John, Mary Alice, Timothy Thomas, David Charles and Nancy Ethel. All were of age when the will was executed, except Nancy Ethel, who was about 20. All except Timothy Thomas, who is in the United States of America, reside in Wanganui. After making his will, the testator acquired the fee simple of a small property at Inglewood of a value of about £l3B.

The Court was asked to determine the following questions: (1) Has the testator effectively and validly disposed of the whole or any part of the real and personal property specifically referred to in the will; (2) is there an intestacy as to the whole or any part of the said real and personal property (if there is a partial intestacy what property referred to in the said will is affected thereby); if the testator has effectively and validly disposed of (a) the real property referred to in the will, (b) the personal property referred to in the will, what share or interest in these (a) does the widow of the testator take, (b) do the five children take; (4) if the children are entitled to any share or interest in the real property, do they take it subject to any mortgages, charges or encumbrances or freed and discharged therefrom; (5) whether the testator has by his will effectively and validly disposed of any real or personal property acquired by him subsequent to the execution by him of his will, or whether there is an intestacy in respect thereof.

It was clear, said his Honour, in his judgment, that the testator gave .• life interest in the whole of the estate to his wife determinable upon her remarriage. The life interest existed in the personalty and all the reality, including that acquired after the making of the will.

After further examination and interpretation of the will the questions contained in the originating summons were answered as follows: (1) The testator has not disposed of the whole of i his real and personal property; upon the termination of the life interest there ■ is an intestacy as to all tie personal tv, and as to the Inglewood real estate; (3)a tho widow takes a life interest in

the whole of the real and personal property, determinable upon remarriage; b. each child other than John takes a vested interest in the realty specifically devised to him or her, and the children, other than John, take a vested interest, as tenants in common, in equal shares in section 2’7. (These vested interests take effect in possession upon the termination of the life estate, but are subject to divesting by the operation of the condition subsequent, if and when it shall operate); c. John Breen is not a beneficiary and does not take any property under the will; d. subject to the life interest, the personalty and the Inglewood real estate must be administered upon an intestacy; (4) the beneficiaries take the realty subject to the mortgage to bo apportioned in accordance with Section 109 (1) of the Property Law Act 1908, upon the basis that no contrar- intention is signified by tho will? (5) it is unnecessary to answer this question, as it is dealt with under answers (2) and (3)d. grown.