A FARMER'S WILL

Evening Post, Volume CIX, Issue 81, 5 April 1930, Page 15

A FARMER'S WILL

SUCCESSFUL APPEAL

- The appeal brought by Esther Johnson, mariied woman, o£ Sliuimon, from tan order of his Honour Mr. Justice Smith concerning the will of the late John Cavanagh, farmer, of Elietahuna, was the subject of reserved judgments delivered by the Court of Appeal yesterday afternoon.

':''.. TheI'testator^'died ..in .:19li,- leaving ilk come of: the estate equally between the widow- and .-the appellant,. ■ and> pn the; mother's death, ' £3000 to'-the; appellant; and :the balance;bf'thf 'estate equally be-' tweeh the two, younger sons^ Proceedings in the case- were commenced in 1911 by, three of the- other sons, - a prriei daughter, and others, the widow being then alive. She.died quite recently, and, the ■case was .then- proceeded with,before-Mi'.; Justice- Smith-,-1 who- ordered that each of the four respondents, John Thomas Cavanagh, Henry Cavanagh, 'William: Cavanagh, and Lucy..Henrietta Sedcole, should receive £250 put bf'the estate^ Such'sunW to be paid out of the £3000 left to the appellant. . ' ( . -: ".-. ■, • ■ The Chief Justice, in his judgment, said it was plain enough that the position had to:be regarded not according to the circumstances' at the present time, but according' to the, circumstances at the time of ■■- the .-> testatpr's' 'death.;■ ■', The■: three sons were all able-bodied "''men' arid although their circumstances might: be, difficult, 'nevertheless each of' them seemed- always to have been able by his own exertions to maintain himself and hjs family. The other respondent was forty-seven., years of age, .and her husband- had ' '■ always' been able to support her. ' When' the testator died the appellant was twenty-seven. For ten -years the "testator and his .wife had been.-invalids,.-, and the', appellant seemed-to have had the sole care of them. When the testator died,:., the appellant was left with her. invalid and' partially paralysed mother on her';-hands. <". ."In those1 circumstances, continued - his Honour, he could not help thinking that the testator, after making provision for his-wife, owed a first and paramount duty to the appellant. No doubt, if he had left a very large estate and hud given the' bulk pf-it-to' the -appellant it might have been quite proper for the Gourt to make an order in favour of the respondents, but that Was not the case. In his Honour's opinion, the order appealed from • was wrong and-should be set:.aside. ~.',: His Honour Mr. Justice Heidmaii's judgment stated, inter,- aW,- that no doubt the appellant had strong claims upon her father's'bounty,-so .it was not' surprising that lie treated iJier.withigencrosity. But when, in, effect, he.-gave jiciv the interest upon £3000, .with a a'igh.t ,to 'determine the ultimate .destiny* of the principal-sum as well, he' ''disregarded a duty that-, he owed to' the respondents. His Honour considered' the- "appeal should be dismissed.' ■' '■'.-. *■-•■ "■ ■" . '

Judgments concurring with the views expressed by the Chief Justice were de-, livered by Mr. Justice Blair and Mr. Justice Kennedy.! . . :

At the heaving Mr. H. E. Cooper appeared for the appellant, and Mr. 11, Smith for the respondents.