A WIDOW'S ALLOWANCE.

New Zealand Herald, Volume XLIII, Issue 13227, 12 July 1906, Page 6

A WIDOW'S ALLOWANCE.

TESTATORS*'FAMILY 1 MAINTENANCE ACT. AN INTERESTING CASE. • '" [r.r ■ii.i.hOßwv.. — association.] I Wkm.tngto.\- , .\YcdKe;d.'y. ■ ! The Appeal Court gave judgment to-day • in the case of Plimmer v. Plimmer. This s was an appeal from the decision of their .! Honors the Chief Justice-and Mr. Justice ' j Cooper, delivered on' August 24, ISOS. The '■ i case first came before the Courts in the '' shape of an originating summons under the ■■ Testators' Family Maintenance Act, 1900, I by Janet Plimmer, widow of the late John i Plimmer, of Wellington, calling upon the - executors and trustees of his will to show • cause why adequate provision should not bo i made for her out of the estate of her deceased -busbar"*. Mrs. Plimmer had by > agr-.s. tent been separated f.-r>ra her husband > sin-ivs 1874. and under the deed of separation, dated August 15, 1874, she received \ i an annuity of £150 per annum, and cove- I ; Banted that she would not commence any : action or sui": against her husband for any j i further maintenance or support. After , the date of this agreement John Plimmer j ! arois'.'ed a considerable amount of property, i i and, according to the evidence given at the ■ ■ hearing of the summons, his estate was • valued by the Stamp Department for the - purpose of assessing duty at £27, The Chief Justice and Mr. Justice Cooper • held that the covenant in the deed of sepa- , ration above referred 'to did. not preclude [ Mrs. Plimmer from making this application, , t and awarded her the sum of £1000 out of , the estate. The trustees of the will (who ; were two sons of the deceased) and two of the married 'daughters of the deceased (who i were named as the residuary legatees under the will), appealed to the Court of Appeal • against this decision. The case came bei fore Judges Williams, Denniston, and Edwards in the Appeal Court on November 2, 1905, and after hearing argument the Court came to the conclusion that there was not sufficient evidence before it upon . which to come to a decision, and the casewas remitted to the registrar of the Supreme Court to take further evidence of the financial position of the appellants, and it was ordered to be 'reargued at 'nextsitting- of the Court of Appeal. Fresh evidence was taken, and this evidence showed that the value of the estate, as finally assessed by the Stamp Department, was £36,931 lis 4d. The case was then reargued in the Court ' of Appeal on April 10 and 11 last, the Bench consisting of the Chief Justice, and • Judges Denniston, Edwards, Cooper, and Chapman.. Mr. Quick and Mr. Skerrett appeared for the appellants, and Dr. Findlay for the respondent. Judgment was reserved. The main judgment was delivered by Mr. Justice Edwards. His Honor held that . the Court of Appeal had full power to re-

view the exercise of a discretion, by a judge ,of the Supremo Court, and the authorities showed that this discretion in practice had often - been reviewed. . His Honor agreed with the Court below in deciding that the 'covenant in the deed of separation did not. prevent Mrs. Plimmer from making this application, otherwise, if the testator had become a millionaire, she would not have been able to. get any more than £3 per week. His Honor expressed the opmion; that the Testators' Family Maintenance Act, 1900, did not give power to a judge to grant a lump sum out of a testator's estate, but only to grant an annual sum for maintenance. The Act was a beneficial Act, but required amendment to make this more clear. The provision for the applicant would have to come out of the residuary. The appeal would be allowed, and the order made in the Court below varied, so that Mrs. Plimmer, instead of receiving the sum of £1000, would bo ' entitled to £100 pei annum from the date of the death of the testator. The costs of all ' parties would come out of the estate. Mr. Justice Chapman read tho judgment of Mr. Justice Denniston, and also his own decision, both agreeing in their conclusions with the judgment of Mr. Justice Edwards, and Mr. Justice Cooper also concurred with this judgment. Leave wag given to all parties to apply to the Supreme Court to vary the order if any change of circumstances occurred to • warrant it. The Chief Justice, in a dissenting judgment, held that the Testators' Family . Maintenance Act, 1900, gave a discretion to Supreme Court judges to grant a lump sum to applicants out of the estates of deceased testators, and that this discretion ought not to be reviewed by the Court of Appeal unless it proceeded upon some wrong prin- : ciple, or was so unreasonable as not to bo ' a proper exercise of the discretion. Seeing that the estate of the deceased testator had been valued at £38,000, and only £1000 had been given to the widow by "the Supreme Court, the Court of Appeal ought ■ not to say that the discretion of the Supreme Court had been unreasonably exercised. There were many cases to show that where the Courts had power to grant : maintenance they could grant a lump sum.