An important legal question involv~ ing Section 11. of the Married Woman's Property Act of 1082 was settled by Judge A. G. Mossop in HM. Supreme Court on Monday, Dec. 16, when he delivered judgment in. the ease of Mrs, Esther Benjamin v. Mr. A.
Kane, administrator of the estate of the late David Hai Benjamin, By the Judgment, a claim by Mes. Benjamin fon an insurance policy with the Sun Lite Assurance Ca, of Canada was dismissed, whilst a claim that certain property in Vu Yuen Road, valued at $60,000, towards the purchase price of which the late Mz, Benjamin con: tributed $83,549.70, was hers was upheld, Mr. "E, L. Hartopp appeared for both parties in the suit, while Mr. John MeNeill appeared for the Midland Investment Ca, interested ereditors against the estate.
Section LI of the Married Woman's Properly Act sols out that, if a man effects a policy expressed to be in favour of his wife an immediate trust crouted in her favour, a trust that cannot be revoked, A policy for Tis 10,000 was taken out by Mr, Ben-yamen with the Sun Life in 1931, whereby the insurance company agreed to pay the amount due on his 1 representatives. On tauber 7, 1934, he took out a form: entitled an Appropriation of Policy, which varied the policy by insecting the words—"I do hereby vary. the policy by appropriating the benefits to such person oF person as I shall have amed in a written declaration 10 be fled by me with the company, of, shawld I fail to do so, then to my wie, Esther Benjamin." This, Mr. Hartopp contended, set up, in' con-Junction with the policy, a' trust for Mss, Benjamin, Mr. MeNelll argued that there was no covenant on the part of the Insurance company to carry out the instructions given in the appropria-ion form, which they merely recorded, "The polley of insurance was a deed, and a deed became effective on being signed, sealed, and delivered, After a deed was delivered, the terms might be varied, but the original dood was not discharged by any variation. Wf, as it was said, the appropriation form together with the polly construed a new contract, the provision in the Act protecting creditors in case of fraud would be nulliged, With regard to the property in Vu Yuen Road, towards. the purchase price of which Mrs, Benjamin contributed $19,000, Mtr. itartopp contended that the land was bought for Mrs. Benjamin by her husband, who later, with her permission, mortgaged it 0 Brandt & Rodgers for $40,000, Mr. MeNoill contended that a tenancy in common had been created. Should the land, he submitted, be now sold for '$60,000, Mrs, Benjamin would only be entitled to her share, some $36,000, the mainder of the money going 16 the Giving judgment, his Lordship said the first question' before him was whether the insurance policy effected by the deceased was " policy under Section I of the Act and thereby constituted a trust in favour of his wife, Although it was a policy effected by Mr. Benjamin on his own ie, i was not expressed to be for the' benefit of his wife, Mr. Hartopp had submitted that the appropriation form was a variation of the original policy and that from the date this form was recorded by the company the policy should be deemed as falling within the provisions of the section of the Act in, question. have considered Section If of the Act, he continued, "and it seems to me that that section, when carefully read, contemplates a policy of wisurid which at the time of its being 40 effected is expressed to b2 payable before him clearly disposed of the contention that there was a tenancy in common, and judgment would be entered accordingly.
Costs of all the parties concerned would be taxed and paid out of the estate as between legal practitioner
Text read from the printed page and cleaned; old type leaves the occasional error.