SUPREME COURT

Manawatu Standard, Volume LIII, Issue 286, 31 October 1933, Page 10

SUPREME COURT

WIDOW'S CLAIM FOR ASSISTANCE FAMILY PROTECTION ACT. Claiming that they had materially assisted in the building up of the estate, Mrs Ellen Milne, a widow, of Woodville, and eight members of her family, living in various parts of the North Island, took action in the Supreme Court, yesterday, by originating summons under the Family Protection Act against the trustees of the estate of Mrs Milne’s late husband, Alexander Milne, for relief to be provided them from the estate. It was stated that deceased, who died at Woodville on March 24, 1932, at the age of 71 years, had left his family nothing under the terms of his will, leaving his estate all to a brother, Dr. W. M. Milne, of Scotland. Deceased's widow now claimed through her solicitor that she had no means beyond a house and was in need of assistance, while her children also applied for assistance on the grounds of need and that they had,aided to build up the estate. j His Honour, Mr Justice MacGregor, was on the Bench. Mr W. A. Lyon appeared for plaintiffs and Mr N. H. Kawson for defendants.

The affidavit filed on behalf of plaintiffs set out that the widow, Ellen Milne, had married deceased in -1888 and there had been 10 children of the marriage, two of whom had died before the death of the father. When he had been married deceased had very little property and had lived in an unfinished and very poorly furnished house, and although lie had several town sections in Woodville it was not thought that they had been fully paid for. Deceased had been a carpenter and had difficulty in obtaining work. His wife had used a little money of her own to make the house more habitable, took in a' boarder,, learned to milk, and kept a cow. Later, deceased acquired a farm at Makairo, 14 miles from Woodville, and as it did not pay with dry stock,, his wife offered in 1897 to live on the property and milk cows, which she did, with her six children. She had one girl to assist her. Deceased had lived mostly at Woodville, working at his trade, and had at one time travelled with a stud horse. After holding the farm at Makairo for one season, deceased disposed of the property and leased ten acres of land at Woodville. Deceased had helped the family at that farm occasionally, but only spasmodically, partly because other work and interests interfered, and partly because he did not like it. Deceased acquired other property in Woodville afterwards, and his wife had kept the house going for years with the proceeds of the farming operations. Deceased had been more speculative than industrious, and the children did practically rrrl the farm work. All had to workvas soon as possible and assisted in the cow-bails. They received no wages. No family had ever worked harder, it was claimed. They did nSfc get any thanks from deceased. The wife had left? deceased in January, 1917, and the children did not stay with him. He therefore sold tho property and had madc\no money after the family had ceaseSf to work for him. Almost from the time of his marriage deceased, it was alleged, drank to some extent and was tyrannical. As lie became more prosperous he drank fairly, heavily and caused trouble and -disturbances in the house. Plaintiffs alleged, also, acts of cruelty by deceased. I^October, 1912, when deceased’s conduct became unbearable, his wife Heft him and instituted proceedings vfor separation and maintenance, but on -liis promise to reform she withdrew them and returned home. Deceased resumed his old habits. After -what Was stated to be a dreadful scene, in January, 1917, his wife left him and they never lived together again. For some Rime deceased made occasional payments for maintenance, but had it not been for the help of the children she could never have lived. In 1928 she obtained a judicial separation. The deceased had left his property to Dr. W. M. Milne, a brother in Scotland, allegedly to spite his wife and family. Me Jind last made his will shortly after she had obtained her judicial separation. Finally, it was stated that the balance of deceased’s estate was believed to be £69^5. SUBMISSIONS. Mr Rawsfen said that Dr. Milne, the benefiqii)ry*mnfor the will, was agreeable to reasonble- maintenance for the widow? TmtC~dia not agree to participation by the eight members of tho family, now adult, childVen. The income of the estate was estimated to proBin the next 12 months. said the widow bad been i and £SOO by a daughter acker) who bad died. The all been spent and the ibout 40 years <sald. Mrs kept boarders, but cbuld low, because she could not rders and could not do the lad received no aid at all :ate, and was now 68 years reviewing the lives of the ibers of the family counsel red to show that the estate uilt up by the efforts of d family, rather than by deceased’s own work. The deceased would have held the farm bad not the family worked it for him. The mcSt the widow ever had was £2 a xfeek and'* deceased had lived like a miser. Counsel submitted that better provision sßould have been made for the widow. His Honour: Is she in good health P Counsel: Yes. Quite good health, considering her years. His Honour: Then she is the first widow in Ificb an affidavit who is in {food health that I have ever known. What is the capital value of the estate ? Mr Rawson : £SOOO would be a generous estimate of the canital value. Counsel tor plaintiffs thought that the £132 estimated income from the estate in the next year* would not be sufficient for Mrs Milne, and suggested £5 a week. His Honour: That would be more than she has ever had in her life before. Counsel: Yes, hut she helped to make the estate. His Honour: These 'other people have a very slim chance of getting anything? Counsel: That is the position perhaps at present. Mr Rawson said he had been instructed to contest a.ny interference with the capital. After Mr Lyon had applied himself to the position of several members of the family. His Honour said that he could not make a new will for the deceased. Whatever the New Zealand law might be, he could not alter the will. The law would have to be changed before that could be done. If New Zealand law were in line with the law in Scotland, England, France and other parts of the Continent, deceased would have had to leave at least a third of his estate to his widow and a third to his children. Counsel submitted that it was reasonable that the family should be given some assistance.. « His Honour commented that. there might be some who should receive, or who might be entitled, to relief among the family besides the widow. But he

•could not make a new will for deceased.

Counsel said, in reply to a question, that he would suggest, in view of the widow’s age. that an order be made for £5 a week. The one daughter, now married, he thought was entitled to a / sum of £IOOO if the estate would pay it. The eldest boy should receive £IOOO in a lump sum to give him a start in life again. Those two were the more deserving among the children. j Mr Rawson said that tho assets would not produce an (amount near £SOOO, as they were malinly on second, and third mortgages oh poor security. The £132 for the next (12 months was only dependent, also, upon payment by mortgagors. Any compensation granted to the children would be in competition with the widow. His Honour said it was out of the question for him to make any grant out of the capital for the children.

THE JUDGMENT. Decision was reserved until to-da.y, when His Honour said that the family ,was now one daughter, who had. married, and seven sons, who had been out in the world for some time making their own way. The assets, on paper, consisted of £SOOO or £6OOO, but they were difficult to realise and some were of a very problematical value, being mortgages on land and a variety of shares and debentures. The £132 annual income gave some indication of the value of the assets. Deceased had evidently been a man of an extraordinary type who had not got on very well with his wife and children for some years. He had applied for restitution of conjugal rights and his wife, in a cross-petition, had been granted a judicial separation and maintenance. It appeared that deceased had treated his wife and family with habitual cruelty and had not behaved as a huSband should. In his final will he had left all his estate to a brother in Scotland and the question now was what provision should be made for the widow and children. After reviewing authorities, His Honour said that the men had learned to work hard and had supported themselves, some faring fairly well and others not so well. Counsel for plaintiffs had asked him to reconstruct the will and disregard the main provisions, which left the property to the brother, and redistribute the estate among the widow and children. His Honour said he was satisfied that he had no power to do anything of the sort. There was no doubt that the widow was entitled to some future allowance. She was jiow nearly 70 years of age and unable to keep boarders as she had done. If she received an allowance of £4 a week it would be adequate in her case. The daughter, Mrs Margaret Isobel Clarke, of Woodville, was also entitled to an allowance and lie would fix th'at at £2 a week. The sons were now grown up, between 20 and 40 years of age, and were admittedly good workers and able-bodied. He did not think, therefore, that lie should make any allowance in their case. The question then arose as to from what date the order should be dated. Mr Lyon said the widow had received nothing since" deceased’s death. Mr Rawson said it was a question of realising the assets if the order were made operative from the time of deceased's death.

His Honour made the order for £4 a week for Ellen Milne and £2 a week for Margaret Isobsl Clarke, to be jirovided from income from and capital of the estate. Costs amounting to 50 guineas were allowed plaintiffs. % MAN FOR. SENTENCE. Per Press .Association. WELLINGTON, Oct. 30. A verdict of guilty was returned by the jury in the Supreme Court to-day in the case in which John Phillips, a motor salesman, was charged with attempting to obtain £IOO from the North Island Motor Union Mutual Insurance Coy. bv false pretence. He was remanded for sentence till Thursday. :