CLAIM TO INTEREST IN ESTATE

Dominion, Volume 37, Issue 227, 22 June 1944, Page 3

CLAIM TO INTEREST IN ESTATE

Parentage In Question HEARING AT AUCKLAND ADJOURNED (By Telegraph.-Press Asom-milotiJ AUCKLAND, June 21. The hearing of a claim to an interest in die estate of Mrs. Marianne Oaughey Preston, the residue of which is now valued at £300,000, was continued before Mr. Justice Callan today. Plaintiff is Iteginald Ciuighey Seymour Smith. Mr. H. l'\ O’Leary, K.C., and Dr. McElroy appear for plaintiff', who was brought up by Mrs. Preston, lorinerly Mrs. W. 11. Smith, mid who chums to lie her own son. Messrs. H- 1‘- Richmond and Warnock appear for the surviving trustees of Mrs. Preston s estate, S. J. Barry, company secretary, and W . J. Mains, retired warehouseman. Mr. Stanton represents the committee of the Caughey Smith Preston memorial interdenominational evangelization fund m £25,000, which has not yet been dealt with. . The sole provision made for plaintiff in Mrs, Preston’s will was a bequest ol £lOOO, subject to carefully guarded conditions. There was also before the Court a summons by the trustees for the consent of the Court to distribute the two remaining portions of the estate, mid to call upon plaintiff to make any claim within a fixed time, . .. His Honour said the ordinary way ot proving parentage was by production ot a birth certificate, but he understood Mr. O’Leary to meet that by saying the proved conduct of Mr. and Mrs, Av. PI. Smith toward plaintiff raised the presumption that he was their child. His Honour’s difficulty was to conceive of an ordinary humane motive that would prompt Mr. apd Mrs. Smith to keep constantly talking about this child as their adopted child if it was really their own. The father and then the mother professed to exercise rights of testamentary guardianship. This case was unique, said Mr. O’Leary. There were matters on which friends of the Smiths or Prestons could give very much better evidence than he hafi- . * His Honour said he was inclined to think that the mere mention in Mr. and Mrs. Smith’s wijls right from the start of plaintiff as adopted tvas going to do his case a lot of harm. Mr. O’Leary then addressed himself to the question whether a -woman of 53 was capable of having a child. ■ His Honour said women having babies 1 at 53 was not impossible but unusual. Mr. Richmond said he proposed to quote authority that the courts did take notice of how old a woman was and of what was called natural law. Mr. O’Leary said the foundation for that argument was not laid, because there was no definite evidence as to the age of Mr. Richmond said there was definite evidence that she was ST when she died in 1038. That would make her .57 or 56 at the time of the birth of plaintiff. Mr. O’Leary submitted that, assuming she was 53. the Court would not make the assumption that it was impossible for her to be plaintiff’s mother. He quoted authority for the statement that there was no legal impossibility in a woman 100 years old bearing a child. His Honour commented that if a woman had- given 'birth to a child at the age of 53, the medical profession would have got hold of that, and- it would have been given some publicity, whether the parents liked it or not. . Mr. O’Leary said that, owing, to .the uncertainty of Mrs, Smith’s age, it might well have been that the doctor did not realize tho position. Plaintiff, Reginald C-nughey Seymour Smith, shop salesman, ut present on leave from the army, said- he was now earning £7 n week. Extensive inquiries had been made in New Zealand, England and Ireland from persons who knew his parents about the time of his birth, but he had been able to find out very little. \V itness said that at different-times his mother gave him contradictory information concerning his birth. . . Ulis Honour said- tins case had ceitain features that caught the popular imagination and, if it was pushed along, there might he people who would say afterward that, if it had not been disposed of so quickly, thev could have told the judge something. He therefore thought that an adjournment was desirable. Mr. O’Leary said he was in touch with a woman who Cairo from England with Mr. and Mrs. Smith. .. Further hearing was adjourned HU a date to be fixed.