SUPREME COURT.

Gisborne Times, Volume XXVII, Issue 2485, 26 April 1909, Page 2

SUPREME COURT.

JUDGMENTS DELI VERED

The Registrar of the Supreme Court (Mr. W. A. Barton, S.M.) on Saturday morning' read judgments in the cases heard before his Honor Mr. Justice Edwards at the sittings of the Supreme Court in Gisborne last month:—

Thomas William Porter v. John Coleman and others (Mr. 0. A. de Lautoar for plaintiff, and Mr. L. T. Burnard for defendants). This is an originating summons for the purpose of determining questions arising),in the administration of trusts of a settlement executed by a deceased settler, the late wife of plaintiff. A number of questions are put in such a form that it is impossible to answer them categorically. Broadly put, the first four of these questions relate to a claim made by the plaintiff, who is tenant lor life under the settlement, to be reimbursed out of trust estate in , respect to certain expenditure incurred by him in effecting repairs and improvements to the trust estate. TheAffidavits, filed in support, of the plain,rf’s claim establish, prima facie at least, that the value of the trust estate has been increased to the extent of £260 by the expenditure of the tenant for life in repairs and improvements beyond what might be expected from an ordinary tenant. These affidavits, however, do not establish that such expenditure was necessary for the preservation of tlie trust estate, or that it was inucrred with the sanction of the trustee of the settlement, so as to bring the plaintiff’s claim within the principle of the cases of Todd v. Moorhouse, L.R. 19, Eq. 69; in re Farnhan’s settlement (1904), 2 cli. 561; Eyre v. O’Rorke, 8 Gaz. L.R. (C.S.) 248, 25 N.Z. L.R. (C.S.) 182, and other similar cases, It is clear law that unless the tenant for life' can bring himself within the authority of these cases he cannot claim to be reimbursed in respect of his expenditure in improvements upon the trust property; Rowley v. Ginncver (1897) 2 Gh. 503; Tudor’s L. Cas. 4th Ed. 130. The plaintiff has not, therefore, shown any legal right to be reinibused out of the corpus of the trust property in respect of his expenditure upon permanent improvements thereon.. Thist answers the first, second, third, fourth and sixth questions stated in the originating summons. The fifth question a.s'ks: “Is the trustee right An charging the plaintiff as tenant for life in occupation with rent?” If so to what extent should rent be charged? Upon what conditions is the tenant for life entitled to continue to reside? From what source, during the oceupany of the tenant for life, are deficiencies from time to time arising in income account to be made good?” The settlement empowers the trustee’ to lease the settled lands upon such terms and at such rent as the trustee shall think fit, and to permit the settler and her husband, the plaintiff, to reside in the dwelling-house thereon, so long as the settled lands shall yield sufficient moneys to defray all interest and other annual charges accuring due under any mortgage upon the settled property, and all rates, taxes, insurance premiums, and -other outgoings whatsoever, and the lawful charges of the trustee. The settler has died, and this clause does not in terms apply to the present condition of the settled' property, but it throws a light upon trie clauses which do so< apply. By subsecrient clauses it is declared that the trustee shall hold the settled property, and the rents, issues, and profits thereof, for the benefit and enjoyment of the settler and the plaintiff, during their joint lives, and, after the death of either of them, for tlie benefit and enjoyment of the survivor of them lor her or his life. The result of these, clauses is that it is the duty of the trustee, if this is necessary for. the purpose, of defraying the annual charges specified in the settlement in respect of the settled property, to lease such settled property. The trustee may lease such settled property to plaintiff at a rack rent and subject to proper conditions, but if such rent is more than is sufficient to defray the annual charges, the plaintiff will be entitled, as tenant for life, to the surplus thereof. If the annual income is insufficient under these conditions to defray the specified annual charges in respect of the settled property the trustee is at liberty, for that purpose, to resort to the corpus thereof. The fifth question put by the case must be answered accordingly. The plaintiff must pay the defendants tlieir costs of the summons, which I fix at three guineas, and 'fees paid. Ido not allow any larger sum because the ease was not on either side argued before me either upon principle or authority. Counsel contented themselves with stating their respective client’s claims, leaving it to me to supply the principles and to search, for the authorities without assistance! from them. In such Circumstance:} I can only look upon the attendance of ofV counsel as merely formal. In future, I may add, all cases involving points of law must he fully argued. If, from defects of the Court library counsel do not find it possible to do this in Gisborne, I shall be compelled. with regret, to require ' all /» a ses- involving points of law to be aigued in Auckland. The time at my disposal does not permit my dispensing with, the customary assistance of counsel in such cases. Solicitors for plaintiff, Messrs. Be Lautour, Barker, and Stock, Gisborne; and for defendants Mr. William Sievwriglit, Gisborne. Judgment was also given in. reference to a summons calling upon tlie District Land Registrar at Gisborne to show cause why lie should not register a certain lease for certain native minois, to Porcival John Roberts. The lease contained a clause providing for renewal and the District Land Registrar questioned whether the provisions for right of renewal could he legally given effect to as far as the minors wore concerned. His Honor, after referring to the facts, and stating that the District Land Registrar had acted quite properly in raising the question, pointed out that the matter depends as to whether the 1908 Statute affecting it is retrospective. After referring to the triple protection that the minors could have from their co-lessees, tlieir tiustees, and the approval of the Ma,ori Land Board, lie goes on to say that the question isv not so clear as it oiight to be, and if it appeared to linn that the interests of tlie minors were imperilled he would think it proper to refer the matter’to the Full Court for determination. As, however, the interests of the minors were fully protected lie would direct the' District Land Registrar to register the lpaee as applied toi. He allow costs against the assurance fund the question having been raised in the interest- of the Department, £lO 10s to the applicants and Lt to the District Land Registrar.