11

&.-£

law should be altered to allow those wills being proved, notwithstanding period of two years has elapsed, subject to other objections, as in case of European wills. They submit succession orders, in case where wills left and proved, should be set aside as having been obtained upon a mere technicality. As to suggestion that these successors have rights which should be protected, I say that if the law was what the Courts for forty years thought it was these people would have no rights. The loss of those claiming under succession orders merely a fractional part of those claiming under wills. Ask that restrictions shall not be deemed to bar any of these wills. This is our main contention, and I will call evidence to support this if allowed so to do. , U Mr. Bishop's request, matter adjourned till 2 p.m. following day. Mr. Conlan : I appear for European lessees of various sections. Mr. Bishop : In my opinion, my friend opened vaguely. His request was that all the wills be validated. By section 3, Kaiapoi Reserve Act, 1910, Commissioner has to report not only as to validation of wills, but also as to each and every will. In some cases, no doubt, wills should be validated — where in favour of next-of-kin, for instance. As to " willing " being an indisputable right of Natives, this is quite correct generally speaking ; but that they could pass restricted lands such as these is contrary to law and fact. Never meant they could do so. They could not alienate in lifetime, why be able to do so after death. As to Commissioner Buller's report, " that 1 may leave land to my children in event of my death," I quote this as supporting my contention that Native owners could not will — that land must descend to their children. As to statement that no doubt cast on validity of wills till 1899, this is wrong. First doubt thrown through Supreme Court decision in Mahupuku v. A.M.P. Society (1:5 L.lt. 246. 1895). Inalienable land could not be devised (Jan., 1895). Native Land Court Act, giving exclusive probate jurisdiction, came into force same year. Prior to that the probates of Native wills had been granted by Supreme Court, who granted them as a mere matter of form. As a result, the Natives had iio knowledge of the proceedings, or what was involved in them, and no notice of the application. Probate from Supreme Court he looked on as final in his ignorance. Much dissatisfaction. As a result of these abuses Native Land Court was given exclusive jurisdiction, and immediately doubt thrown on these wills. Native Land Court began to refuse probate of these wills from 1895, the question never having arisen in a concrete form before. As to imposition of restrictions being without lawful authority, no opinion at all expressed by full Bench in Attorney-General v. Te Aika on this point. If they required validating at all they were validated by Native Land Act, 1866, section 5. By this section the Legislature assumed they were valid, and showed a positive intention to give effect to them. Section 136 of Native Land Court Act, 1909, did not recognize right of Natives to will restricted lands. This Act removes all restrictions on alienation of Native lands ; that is all. They can now make a valid will. I hope Commissioner recommends that legal rights of clients under decisions of Supreme Courr be recognized, and succession orders confirmed. Restrictions were properly imposed, and they prevent disposition by will. See judgment of Cooper, J., in Attorney-General v. Te Aika as to course of legislation being connected with historical facts. Reason of restrictions, to prevent impoverishment of Natives by their own improvidence. This would be defeated if they were allowed to will lands. Wills always suspicious, as old Maoris very subject to undue influence. Next-of-kin frequently ignored. Most dangerous to set aside Court of Appeal's decision by legislation. .Many orders made because wills had been thrown out. Judgments of other Courts founded on them. Dealings also would be upset that have taken place lately. Probate did not confer title to land mentioned in will. Testators have purported to will something they had no right to will. If wills are validated, my clients lose something highest Courts declare belongs to them : therefore we must be compensated. If we are confirmed in our possession, no question of compensation for other side arises, for they have been enjoying something to which they had no right. Now, however, they ask for something more. It is not fair to alter law for these people who are only one-tenth of those I appear for. 1 submit only equitable for this Commission to recommend that law should stand, and proper successors be confirmed in their title. For years my people have been kept out of their rights. Those who must suffer should be those who have least legal claim. Mr. Conlan : In many cases lands devised have been leased to Europeans. Natives had obtained probate. Under Act of 1894 not necessary to obtain succession order where probate granted. Probates were only evidence of titles. Lessees had no other course open but to pay rents to executors mentioned in will. In all cases where rents were paid in good faith to devisees that no further claim should be allowed —section 50, Native Land Act, 1909. Native Land Court order dated back to last succession order. Law uuder Act of 1894 not quite the same (see section 31). Unfair that dating back of order should render lessee liable to pay rent a second time (see subsection 6, Native Land Court Act, 1909, section 50). Mr. Wright: I ask for Commissioner's ruling. Because Supreme Court has held wills invalid that we are here to-day. Do you hold that where wills have beet) made in favour of others than next-of-kin that those wills must be wiped off title ? The Commissioner: Not necessarily so. In my report I must consider the equities of each particular instance. Mr. Wright: Unjust that law should be strictly followed. Equities should prevail. Wills only upset by merest technicality. If any undue influence brought to bear on the making of will, European law would have thrown it out. Large numbers of owners in some of these small sections. Mr. Conlan: See section 15, Maori Land Claims Adjustment and Laws Amendment Act, 1&04. Euera te Aika sworn. To Mr. Wright.] 1 belong to Kaiapoi Settlement; owning Section 75. Erueti te Huni also a name of mine. I was present when Commissioner Buller distributed these lands. I was present when Mantell came and reserved land. He convened a meeting of Ngai te Ahuri. Reserve surveyed, 2,640 acres,