ANNUITY TO A WIDOW.

New Zealand Herald, Volume LVIII, Issue 17776, 9 May 1921, Page 6

ANNUITY TO A WIDOW.

COURT GRANTS AN INCREASE.

HUTCHISON' WILL' CASE.

INTERESTS OF CHILDREN.

Reserved judgment was delivered by Mr. Justice Adams in the Supreme Court on Saturday in the appeal made by Rachel Maria Hutchison (Mr. S. L. Paterson) under the terms of the Family Protection Act, 1908, for an increase in her annuity out of the estate of her late husband, William Elkin Hutchison. The trustees of the estate, James Hutchison and James Henry Gunson (Mr. Thome) were called upon to show why the Court should not make an order granting such increase. Mr. Mueller appeared on behalf of the infant beneficiaries.

The husband, a contractor, had lived at Epsom, and was killed in a motor-car accident in Customs Street in December, 1913. There were three sons, aged 15, 16 and 21 respectively, and two daughters, aged 19 and 20 years. The widow, under the will, was allowed an annuity oi only £150 out of the estate of £20,000. The cnildren, on attaining the age of 21, would receive the remainder of the estate, less the mother's allowance. At the hearing of the case, counsel for plaintiff said she was allowed £6 a week for the maintenance of the children, in addition to her annuity. The will, however, was made in 1912, when financial conditions were very different from 1918, when the testator was killed. His sudden end precluded the altering of the will to meet modern conditions, and plaintiff thus found herself compelled to alter her former mode of living. In order to enable her to live in similar circumstances to those to which she was accustomed before her husband's death, she would have to receive over £1000 a year. He submitted that the Court should make an order for £700.

His Honor held that the maintenance allowed to the widow should be of such a kind as she had been accustomed to during the life oj her husband, and her accustomed mode of living should not be reduced. An increased allowance to the applicant out of the income of the estate would reduce the allowance now being made by the trustees for the maintenance of the infant children. But this allowance could not be reduced without injury to the children, and any such increase must therefore come out of capital xintil the unproductive assets were realised and the proceeds invested. While it was evident that the income of the applicant should be substantially increased, the Court should not make any inroads upon capital beyond Vha{r was reasonably necessary, and in all cases under the section, regard should be had to the interests of the children while recognising the right of the widow was paramount. His Honor had come to the conclusion, after considering all the circumstances, that an order should be made that the application be deemed to have been made on behalf of the infant children as well as of the applicant, and increasing the allowance of the applicant by £300 per annum from the date of the testator's death during her wfdowhood, thus bringing it up to £450. This increase shonld be in the first instance out of the surplus income, if any, after providing for the payment of the annuity of £150 and for the maintenance and education of the infant children, the deficiency to be paid out of capital if and so often as the income "vras insufficient. This would leave available for the maintenance and education of the infant children such sums as the trustees considered proper out of income in accordance with the terms of the will. The order would reserve leave to the applicant or any other person interested in the estate from fc'toe to time to apply to the Court for such variation of the order or directions as might be tboueht fit. His Honor ordered the costs of all parties to be taxed by the Registrar and paid out of the estate.