WIDOW’S CLAIM

Grey River Argus, 12 June 1933, Page 8

WIDOW’S CLAIM

Supreme Court Action Application was made at (ho Supreme Court at Greymouth on Saturday under the Family Protection Act. 1908, by Frances Devlin, of Runanga, for a greater share of her deceased husband ’s cstato. Her husband, James Devlin, died at the Grey Hospital on November 14, 1932, as the result of injuries received through a fall of stone in a co-operative mine in which he was working at Dunollie. Air T. F. Brosnan appeared for plaintiff. Cited as defendants were the Public Trustee, Mrs Lily Curran, Auckland; Mrs Dora Martin, Westport; Airs Eliza both Taylor, Westport; Airs Alary O’Connor, Blenheim; John Devlin, Taylorville; and Patrick Devlin, Atarau. Air F. A. Kitchingham appeared for Alesdame.s Alartin, Taylor and O’Connor, and Air J. W. Hannan for the Public Trustee. Airs Curran was not represented, and took no part in the proceedings. In her affidavit, plaintiff stated that she was married to the late James Devlin on December 23. 1939. at Grey mouth, and that he died at Greymouth on November 14, 1932, and there is one child to the marriage living, aged one year ami five months, and that there is also an unborn child; that by his will,

deceased left plaintiff ci one-half share of the following property: —Dwelling house and land at Runanga, furniture and effects, all benefits and moneys payable at his decease from any lodge or benefit society, his share in the Brachcad Co-operative Party’s mine, and fifty shares in the Alexander Alines Ltd., that the furniture and effects belonged to plaintiff, and w e re erroneously included by the deceased in his will; that the remaining halfshare in the property has been left to such of the deceased’s children as are living at his decease and attain the age of 21 years; that to the best of plaintiff’s knowledge, the net value of the estate is £9OO, and the net value of her share is £149 ss; that the allowance made to her under the will is totally inadequate to support herself and her children; that she hag no means of her own, and is entirely dependent upon the estate; that the brothers and sisters to whom deceased left the greater part of his estate arc all of full age and in comfortable circumstances; hi s two brothers, John and Patrick Devlin, have agreed to forego their share in (he estate in plaintiff’s favour, and one sistei has agreed to forego two-thirds of her share in the plaintiff’s favour, if the other beneficiaries do likewise; that the most important asset in the estate consists of insurance moneys amount-

ing to £5OO, payable under a life policy; that it was not clear whether these moneys have been left to plaintiff and her children, or fall into the residue, ami a’re divisible amongst the brothers and sisters of deceased; that the approximate amount' of estate debts, independently of a mortgage for £5OO over the share in the Braehead Co-operative Party’s mine, is £l5B 5s 4d; that the only moneys she has received since her husband’s death consist of £l2O from the Druid’s Lodge, and £l9 from deceased’s share in the mine*, representing the estate’s share o£ th** receipts from the sale of coal over a period of four months; that she has been compelled to spend a large share of the £l2O in necessary expenses; that to supplement her income, she intends to have the property at Runanga sold, and from the proceeds and any ready-money she may receive from the estate, purchase a section in Greymouth and erect thereon a dwelling house, with a confectionery and cake-shop annexed thereto; that to the best of her knowledge, deceased never received any contributions in cash or otherwise from his brothers or sisters, but, on the con frary, she believes that he from time to time advanced moneys to Airs Curran or her husband; that she was informed and believed that, on or about November 14, 1932, deceased, while in hospital, expressed an intention of altering his will, and leaving the whole of his estate to plaintiff and her child, but that deceased died before a will was made; that her health has suffered since November, 1932 •and she has incurred medical ex pens' s. and she is still in bad heHh. Air Brosnan outlin'd ih? claim., of his client and advanced leg; 1 .! :»rgum‘ , nt on certain points. His Honor pointed out 1 hat John and Patrick Devlin hud given their consent to any order that mig.’i • 1.-o made. Mr Hannan said tha~ fjie Public Trustee hail be''n ap.'oiatmi to rupre sent tin. interests of tile children The total value of the e.-iate v.xig about £I4<MI, and it was really too small even for the adequate maintenance of the widow ami children. He submitted that in view of the smallness of the estate, the whole of the residue should go to the widow and children.

Air Kitchingham pointed out that Mcsdames Alartin, Taylor and O’Connor had obligations to meet, particularly Airs Alartin, whose husband was unable tu support her, for reasons of ill-licaltk. They were* content io leave the matter to the Court, but asked that their circumstances bo considered. His Honor said that he did not think it necessary to decide the point regarding the interpretation of the will at this stage. Placing oneself in deceased’s position, it seemed to him that what the man really ■wanted to do was to give everything to his wife ami children, with certain minor exceptions. Tie thought that it would have been a very great shock to deceased, if he could have known that the amount of the death benefit was to go, not to his widow and children, ] 5U f in the main to brothers and sisters However, the family generally seemed inoro reasonable than some families might have been. The Family Protection Act contemplated a “wise, just, hut stern” father, and His Honor was

placed in the position of such a fathci in dealing with the case. There were the widow' and small child, and aiiothfj child yet unborn. The whole estate did nut amount to verv much, ami would not over-adequatcly provide for them. Even if the ■widow got the l"t. she would still have to do something, to keep herself and her children. The p'rccisfr construction of the will was more or less academic, in this case. He thought that tln< power conferred upon h’m by the Ac*, should be used, ami he should accede to Air Brosnan’s proposition, and treat the moneys payable und p r the accident policy as within the specific, gift of the deceased. If an alteration were made in I he will. (<» that effect, it seemed to His Honor that it would ensure justice Io the. widow' and cliildrt’ii, and might leave some slight gift to the brothers and sisters. It would carry out the. testator’s intention. without being unjust to the widew and children. The widow asked only for that. He made an order: “That the proceeds of Hie accident insurance policy shall be deemed included in paragraph three of the will.” The generous offer of the two brothers W’ouLl be accepted and the following addition made to the order: “As to the two brothers’ shares of the residue, their respective shares to be deemed payable to the widow.” His Honor remarked that it seemed to him that those shares would be of a negligible amount. The costs of all parties were to be- paid out of the estate, but they would not be He said that it was not generally known to the public but in the case of small the members of the legal profession did not charge heavily.