A JUST WILL

Gisborne Times, Volume LXXII, Issue 11452, 28 February 1931, Page 7

A JUST WILL

JUDGE DECLINES TO MAKE ALTERATION

CLAIM 1 FOR FURTHER- PROVISION FAILS MANUTUKE* ACTION CONCI.UDFJD Declining to alter the provisions in •; » will, hi s Honor Mr Justice McGregor, at the'Supreme Court yesterday, dismissed an application ‘ for an originating summons under tho Family Protection Act, in which Elsio May Carnegie and Annie Frances Lentell proceeded against the Public Trustee. The tyro plaintiffs are tho daughters of the late Roller t llop- - burn, Of Maimtuke, and.they sought further provision under 'their /ether's will. Mr L. T. Burnard appeared for the plaintiffs- and Mr .T. W. Blathwayt for tho defendant. The ease was part heard on the .previous day. Mr., Blathwayt said that when he stated on the previous 'day that the third daughter, Ellen Mnidn Graham, (lid not require assistance lie djd ,nnl mean that she was in good icircumstances. She is tho wife of a man owning a small property. FT is Honor said he was interested to hear that statement, for lie had gathered on the previous day that Mrs. Graham was in very’ good circumstances. Robert Kenneth Hepburn, son of the late Robert Hepburn, said he was 20 years of -age. ft was his work, lie said, that had placed his sisters in tho position they are in to-day. Witness was under fifteen when lie left-school. He did not like school and wanted to tie a farmer. Fie always knew from the time he was a- small hoy that, the property was to he left to him. lfi.s father had suffered from illness for some years before his death. During the Inst six months his sister, Mrs. Carnegie, and her husband came home. For three months of that time witness was ill. Carnegie did the work and was paid for it with a crop of beans. Trouble arose over Carnegie’s language to his mother, and the arrangement was terminated. Their negotiations wont on for months in regard to money. Finally; witness made out- a list, of what Carnegie should receive, hilt the list was not binding on his mother. Then Carnegie went to Court, and obtained judgment-. Alter the funeral,. when tho will .was read, his uncle asked them all if they understood it and » they said “Yes.” .lane Elizabeth Hepburn, widow of Robert Hepburn, said the arrangement to leave the property to her son had obtained, for many years.

Her husband’s father died in 1017, and from that, time she. understood the daughters were to get about £IOO from her husband’s estate,- and her son should get the farm. The daughters knew that, before her husband died. Her husband said they were to get. a. share- of lus father’s estate. When the mortgage was paid off, her husband then said that lier son was to get the place. Witness gave instances that led to the hos-

tility between her daughter and Carnegie and herself. Carnegie had used obscene language to witness. Finally, witness gave them a month’s notice'.

His Honor said the case had been ably argued on both sides. There were two applications—an originating summons for further provision, coupled with a motion for an extension of time, under the ..same section. The originating summons was taken out by the two daughters, who are now over 30 years of age. The first question was, should the time for making the application be extended?

His Honor quoted from a Full Court decision in'the case, Newman v. Newman, where it was stated that motions for an extension must as a rule be_ made within twelve months, unless in a case of manifest injustice. If not made within that time the applicants are taking a serious risk. The general principle, therefore, is that extension of time after a long delay should only be granted in cases of manifest injustice. After quoting from another case, His Honor asked what are the nw-

terial events and dates in the present ease. First, the deceased made his will on May 10, 1023, and madeprovision in which he provided carefully for the rights of liis wife, three daughters and an only son. He died on October 13, 1923, and after the funeral the will was read out by the uncle who asked if all approved of it, and all said they were satisfied. At that time the two plaintiffs were married and were living with their husbands. The will was proved on December f>, 1923, just over seven years ago. His Honor was satisfied

that at that time all the parties were well aware of the main terms of the will and that the brother was to get the farm after the death of the mother, which is really the cause of the present action. He was satisfied that the plaintiffs arid members of the family know of the terms of the will arid acted on its provisions. The

two plaintiffs and other members of the family remained on good terms, and acted in good faith in the administration, of the estate until 1930,

when a quarrel which seemed to be hitter and'persistent, took place between Carnegie and ,his mother-in-law. That apparently spread, arid finally resulted in the*two plaintiffs being on the one side, and the other members of the family on the other side. _ The third daughter, who is married, does not support the present application. There waff a family feud but the causes of the feud he was not

competent to deal with, though Carnegie was the first'c'aule. His Honoz

Said he was satisfied the plaintiffs were well aware of the provisions of the’will, •and: were satisfied with their share and that they knew of their mother’s interest in the farm, and that the son was to get tho farm. He was satisfied that tho proceedings were the direct outcome of family quarrels and on those facts ho should not grant the applications. His grounds were: The' long I delay in making the application ; the fact that that long delay Was not explafriod to the satisfaction of'the Court; andthat lio could not see that refusal to extend the time would result in mani-

fest injustice, ,n$ it seerrib'd, fS him that the- will did make adequate* pro L visiqn. -The testator appeared to hard carried out his moral duties to his wife and children by his will of 1923. The result of 'granting the ‘applications would be to disturb a state of affairs that had been existing for seven years.- To grant' the application would ho in effect to make a now will of the testator, after he had made all provisions in a Just. will. -Th.e . motions would be dismissed, with costs.