SUPREME COURT

Press, Volume LXXXIX, Issue 27151, 22 September 1953, Page 6

SUPREME COURT

PROVISION SOUGHT FROM ESTATE CHILDREN’S APPLICATION FAILS An application on behalf of Peter Kerkham Humphries, a clerk, ana Maryan Ella Rose Humphries, a student nurse, both of Auckland, for further provision from the estate of their father, Reginald Norman Humphries, a factory representative, who died last year, was refused by Mr Justice Northcroft in the Supreme Court yesterday. Mr T. A. Gresson appeared for the plaintiffs, Mr E. S. Bowie for Joan Margaret Humphries, widow of the testator, and Mr K. A. Gough for Arthur Homewood Hyde, sales manager, of Auckland, executor of the will. Mr Gresson said the application was brought under the Family Protection Act. The testator died unexpectedly on February 29, 1952, at the age of 49. He made a will dated May 20, 1948, and a codicil January 18, 1950. He was twice married. His first wife divorced him in 1946 and he married Mr Bowie’s client in March, 1948, the widow now being 37. There were two children of the first marriage, the plaintiffs, aged 23 and 18, respectively. The contest was between them and the second wife. By his will the testator left his two children each £lOOO clear on their attaining the age of 21. Subject to the payment of debts and death duty the whole of the residue of the estate was given to his second wife absolutely. The second wife’s interest in the estate was approximately £7OOO, including an interest in an estate in England. Mr Gresson submitted that the testator had made generous provision for his second wife but inadequate provision for his two children. Mr Bowie submitted that the application was misconceived in fact and law. The testator’s only primary legal obligation was to make provision for his widow. None of the grounds of the application was sufficient to empower the Court to make any order. TJie testator had treated his children fairly and generously and the application should be dismissed.

His Honour said he felt with some regret that it would not be proper for him to interfere with the will. The testator had provided his son and daughter with a good education and a capital sum of £lOOO each. In view of that he found it impossible to say the testator had not made proper provision for their maintenance and support. He was unable to do that which he would feel disposed to do if he was empowered to make a just distribution of the estate.

PETITION FOR DIVORCE

HUSBAND GRANTED DECREE NISI

“I am quite persuaded on the evidence that the allegations of adultery against Fairhall and Mrs Anderson have not only not been proved but that they are not true,” said Mr Justice Northcroft in the Supreme Court yesterday after hearing a petition by a husband for divorce on the ground of separation and the wife’s cross-petition for divorce’ on the ground of her husband’s alleged adultery.

The petitioner was Arnold -Stanley Fairhall, a, city council employee, for whom Mr E. B. E. Taylor appeared. The respondent was Margaret Rae Fairhall, for whom Mr J. A. Bretherton appeared.

Fairhall said his wife left their home at New Brighton in November, 1949, and in May, 1950, they entered into an agreement to separate. They had not lived together since then. They had four children, the eldest of whom was married and the other three had continued to live with him at New Brighton.

Mr Bretherton said that the respondent admitted there was a separation agreement and it had remained in full force and effect but she had filed a cross petition alleging adultery against her husband. Mrs Fairhall and Ronald Henry Pullan, a Post and Telegraph Department employee, gave evidence on occasions on which Fairhall and Mrs Anderson were said to have committed adultery. Fairhall and Florence Elfleda Anderson, a married woman separated from her husband, gave evidence denying the allegations of adultery. His Honour said the only evidence of adultery was that of Mrs Fairhall and Pullan who had been closely associated and had shown bias against Fairhall and Mrs Anderson. The Court had been told that Pullan had a substantial reason for catching Fairhall out, as the latter had been said to have been scandalising him. Adultery was positively denied by Fairhall and Mrs Anderson.

His Honour granted Fairhall a decree nisi on his petition for divorce on the ground of separation and rejected Mrs Fairhall’s prayer for relief in her answer to the petition. When Mr Bretherton applied for costs, his Honour said the defence of adultery was, he thought, a perjury or at least wrong and unwarranted. Therefore no order would be made as to costs.

JUDGMENT IN CLAIM FOR DAMAGES

Judgment was entered by Mr Justice Northcroft in the Supreme Court yesterday for Henry Russell Rpllison, a pharmaceutical chemist, against William Johnson Hill, a clerk, for £5OO with witnesses expenses and disbursements to be settled by the Registrar. Rollison, for whom Mr R. A. Young and Mr D. E. Ames appeared, had claimed £3500 general damages and £5OO special damages from Hill, for whom Mr A. W. Brown and Mr P. T. Mahon appeared, for injuries suffered when the motor-cycle he was riding struck the rear of Hill’s car which was stopped on the Main South near Dunsandel on January 2, 1901. A jury found that Rollison was 75 per cent, negligent and Hill 25 per cent, negligent, and that the damages in any event were £l5OO. Mr Young moved at that time for judgment for £5OO but Mr Brown was granted an adjournment. Mr Brown told his Honour yesterday that there would be no further action by either party and the defendant had no objection to his Honour entering judgment for the plaintiff for £5OO. • ,