Menteath, for the executors, mentioned the matter again. EDWARDS, J.: I consulted the other Judges. They are all agreed as to what ought to be the practice. It is so in other districts, and it must be so here. These applications must be referred to the Registrar to report upon, and notice must be given to the persons who will really have to pay the money-that will be, in general, the residuary legatees-that is to say, notice to appear before the Registrar. I do not want to bring them here. Menteath. Some of the residuary legatees are in Great Britain. EDWARDS, J.: But there are some here: those only who are here need be served with notice. Each case must be dealt with accord ing to its own circumstances. Order referring matter to Registrar for in- notice on the residuary legatees resident in The matter came before the Registrar on the 12th of June, 1901. Counsel for the executors asked for 5 per cent. on £12,880, the total amount. distributed amongst the beneficiaries, or, in the alternative, for Public Trust Office charges on the gross receipts, £15,638 19s. 10d. It appeared that the Public Trust Office scale was 5 per cent. on the first £1,000, 4 per cent. on the next £3,000, 3 per cent. on the next £6,000, and 2 per cent. on everything over £10,000. The alternative proposals made on behalf of the executors amounted to an allowance of £322, or, in the alternative, £241 to each of the executors. One of the beneficiaries represented had suggested an allowance of £200 each, another had suggested £250 each. The Registrar reported in favour of an allowance of £250 each. Menteath moved that the report of the Registrar be adopted EDWARDS, J. :— I believe this is a case in which the executors should have a substantial amount. Very often they should not. Report confirmed, and order made accordingly. Solicitors for the executors: Menteath & Beere (Wellington). S.C. 1901. In re BECK. S.C. IN BANCO. DAVIES v. DAVIES. WELLINGTON. Will-Codicil-Cutting down Previous Gift-Absolute Gift or Lease—Realty -Personalty-Term-Uncertainty-Compensation for Improvements. 1901. Sept. 20, 26. A testator by his will gave all his property, real and personal, to trustees upon trust for his wife for life or until her second marriage, and after her death or second marriage the property was to be divided equally amongst his children. In a codicil he stated that he wished to add to his will that his eldest son was to have his farm, and all stock, implements, &c., on condition that he paid a rental of £120 per year, and he was also to keep everything in good order and condition. He left eight children. Held, 1. That the gift by the will of the whole property to all of the children was not cut down by the codicil, which could not be read as a gift either of the farm or of the personal property thereon to the eldest son absolutely. 2. That, if the codicil was not void for uncertainty, it must mean that the eldest son was to have the farm and the use of the personal property mentioned until the time for distribution—that is, during his mother's life or widowhood-paying a rental of £120 a year. Quare, Whether the codicil was not wholly inoperative, as no limit was fixed to the enjoyment of the farm by the eldest son. This point was not, however, raised by the widow. Held, further, 1. That, assuming the codicil to be operative, no lease from the trustees to the eldest son was necessary, but he might hold under the will. 2. That the trustees had no power to agree to pay him for any improvements he might effect. THIS HIS was an originating summons to obtain the decision of the Court as to the interpretation of a codicil. The facts of the case are sufficiently stated in the headnote and judgment. C. H. Izard, for the plaintiff John Davies (the eldest son of the testator): The eldest son takes the fee-simple, charged with £120 a year, during the widowhood of his mother. The codicil should be construed with the will. It may fairly be contended that there is no revocation of the life interest to the wife. In Heenan v. Heenan (1) the will and codicil were executed at the same time. There is no objection to the fee being charged with conditions. (1) 12 N.Z. L.R. 111. [STOUT, C.J.-If the son is to have the fee, is he to share equally in the rest with the other children?] Yes. There is no revocation of his share. [STOUT, C.J.-The inference from that may be that he was not intended to have the fee.]. In re Skingley(1). If a rent charge was intended, then the clauses as to keeping in good repair and condition would be proper, to secure that the land should remain capable of producing the charge. If there is an estate for life only in the farm, then the question arises what estate there is in the stock and other personalty mentioned. The cases are summed up in Hayes and Jarman's Forms of Wills(2). And see Breton v. Mockett (3) and Cockayne v. Harrison(4). T. Young, for the trustees and the other members of the family: The life estate to the widow is not interfered with by the codicil: Heenan v. Heenan(5). In Beckett v. Harden (6) the will, and codicils were not made together. The codicil providing that the son is to keep everything that is to say, the personalty as well as the buildings and fences-in good order and condition, it cannot be contended that he takes an absolute interest in the stock. The will gives the trustees a power to lease after the death or second marriage of the widow, and until the time of distribution. The power of leasing would, under the will, be in the widow during her widowhood. The intention of the codicil was to protect the son against the whims of his mother whiist she has the control of the leasing. On the other contention the bulk of the estate is taken by the one son. It is the words of the will which must be looked to: Abbott v. Middleton (7). The word "have" in the codicil is the only word the son can rely upon, and that word by no means necessarily means a. freehold. A man may "have" land for a term of years. If there is a gift, it is a gift with a condition which must be performed: Gregg v. Coates(8) Woodhouse v. Walker(9). If the clause cannot be construed in any of the above ways, then it is void for uncertainty. S.C. 1901. DAVIES บ. DAVIES. (5) 12 N.Z. L.R. 111. S.C. 1901. DAVIES V. DAVIES. STOUT, C.J.: — The testator, Richard Davies, made a will on the 18th of March, 1887. On the 10th of June, 1901, two days before his death, he made a codicil; and the question raised in this originating summons is as to the, interpretation of the codicil. The will gave all his property, real and personal, to trustees upon trust for his wife for life or until her second marriage. After her death or second marriage the property was to be divided equally amongst his children. The trustees had power to sell his property, and, after the death or second marriage of his widow, to let the property for any term of years. There are eight children. Two only of these have reached twenty-one years of age. The value of his property left is £3,820 15s. The codicil is as follows: "I Richard Davies wish to add to "my present will that my eldest son John Davies have my "farm comprising 143 acres and all stock implements carts "harness cans and all utensils and houses on condition that "he pays a rental of £120 per year (one hundred and twenty pounds). He must also keep everything in good order and "condition all fences and outbuildings in thorough repair and "the ground clear of all noxious weeds." 66 66 Counsel for Mr. John Davies contended that this codicil vested the 143-acre farm and the implements, &c., absolutely in Mr.. John Davies, subject to the payment of £120 per year during his mother's widowhood. In attempting to ascertain the meaning of a codicil it has to be remembered that before previous gifts are cut down the words doing so must be reasonably clear and not ambiguous: See Heenan v. Heenan(1); Randfield v. Randfield(2); and Re Percival, Boote v. Dutton(3). If the will is read in the way suggested the result will be that the eldest son would get about half the estate. at the death or second marriage of his mother, whilst the other seven children would only have the other half amongst them. This is such a great departure from his will that it is an inapt phrase to say that it is "an addition to his "will," as the codicil begins. I do not think it can be so read. Then, it was argued that giving the personal property meant giving it absolutely, and Breton v. Mockett (4) was referred to. But there are many cases which show that if personal property be given as part of a going concern, this presumption of an absolute gift will not arise: See Cock ayne v. Harrison (1). Things liable to be consumed, or where the life tenant, as in Breton v. Mockett (2), is not liable for waste, are deemed absolute gifts. But this is not that case : the codicil says all things are to be kept in good order and condition. In my opinion, the ultimate distribution of the property provided for by the will is not put an end to, nor does the eldest son get the personal property on the farm absolutely. The difficulty I feel is whether the codicil is operative at all, as no limit is fixed to the enjoyment by the eldest son of the farm. This point is, however, not raised by the widow. She does not object to the farm being held by her son during her widowhood. If the codicil is not void for uncertainty, it must mean that the eldest son is to have the farm until the time of distribution arises that is, during his mother's life or widowhood-and that for that period he is to pay £120 as a rent, and have the use of the stock, &c., on the farm. He had been a partner in the farm with his father, and it seems to me that the testator meant that until distribution his occupancy should not be disturbed, provided an adequate rent was paid. To read the codicil otherwise would be to sanction an alteration of the will, and a departure from its provisions that the ambiguous words of the codicil do not, in my opinion, justify. As to the questions put in the originating summons-viz., (a) whether the executors may grant a lease of the testator's Ohau land to the said John Davies, and, if so, for what term; (b) whether such lease may contain provision for compensating the said John Davies for any improvements effected by himn on the said land after granting of such lease-I am of opinion that no lease is requisite. Mr. John Davies may hold under the will, but if a lease is made the trustees and widow should both join; and it might be more satisfactory to the estate if such a document were prepared. I am not aware of any power the trustees possess to agree to pay him for any improvements he may effect. The costs of this summons must be paid out of the estate, and I fix them at £7 7s. for the applicant, and £4 4s. for the others appearing. Order accordingly. Solicitor for the plaintiff: C. H. Izard (Wellington). Solicitors for the defendants: Young & Tripe (Wellington). |