FORTY YEARS AFTER.

Auckland Star, Volume LXVI, Issue 104, 4 May 1935, Page 17

FORTY YEARS AFTER.

QUESTION OF ADOPTION.

SUPREME COURT ACTION.

An application was before Mr. Justice Fair in the Supreme Court yesterday to determine whether an udopted son had been legally adopted. The plaintiff was Frank Thaxter McKinley, of Coromandel, represented by Mr. Sullivan. He sought to obtain further provision from the estate of the late Catherine -McKinley, of Te Aroha, who died in January of last year. He took action against C. A. Arthur, of Te Aroha, trustee in the estate, and against all the beneficiaries, different groups of whom were represented by Mr. Turner, Mr. Henry (instructed by Mr. Ackins) and Mr. Prendergast. Mr. Arthur, solo trustee in the estate, appeared to submit to the order of the Court.

The estate was estimated to be worth fS'JOO and the plaintiff had received a legacy of £200 from it. Ho claimed that he had been legally adopted by Mrs. -McKinley and her husband at Thames in 18'J.'3. but the records of that Court had since been destroyed by lire, and no Court order of adoption could be produced. His legal adoption was disputed by the relatives of the testatrix.

The status of the plaintiff as son had already been fully gone into by the Court, said Mr. Sullivan. Since then an affidavit had been iiled by plaintiff's actual mother, who swore that the adoption had taken place and that she had formally consented to it. When her husband died Mrs. McKinley issued a bereavement notice for herself "and son," and the will left £200 to the plaintiff as "her adopted son." Other affidavits stated that plaintiff was the adopted child of the McKinleys.

It was submitted by Mr. Turner that plaintiff must show by satisfactory evidence that ho was the adopted son of deceased by a Court order under the Adoption of Infants Act, 1881.

His Honor recalled that he had already given judgment that the use of the word "a>! >->ted" in tho evidence submitted to him was ambiguous and did not assist the Court in determining whether tho child had been statutorily adopted or merely treated as an adopted child. He had to determine whether the affidavits filed proved that the plaintill' was adopted under the provisions of the Adoption of Infants Act, 1881. After reviewing the evidence he concluded that he was obliged hold that the plaintiff had not proved to the satisfaction of the Court that he was the son of the deceased jind entitled to claim under the provisions of the Act. Even if that difficulty could have been got over it was difficult to see how the plaintiff could have succeeded in his application. He dismissed the application for relief under the Family Protection Act on the ground that the plain-, tiff was not entitled to apply.

His Honor said the case would be treated as a little different fron> the ordinary, and ho would allow the plaintiff £10* 10/ costs and disbursements to be fixed by the registrar and paid out of the estate. The costs of all other parties would be paid out of the estate, the amount to be reserved and fixed by his order.