THE PLIMMER ESTATE

New Zealand Mail, Issue 1746, 23 August 1905, Page 50

THE PLIMMER ESTATE

A WIDOW’S PETITION.

Their Honors Sir Robert Stout, C.J., and Mr Justice Oooper sat in the Supreme Court on Saturday morning for the purpose of hearing a petition brought under the provisions of the Testator’s Family Maintenance Act by ' Mrs Janet Plimmer, widow of the late Mr John Plimmer. against- the trustees of his estate, for an increase of the maintenance sum of £l5O per annum r granted to her by a deed of separation dated . August 17th, 1874. Dr Findlay appeared for the Mrs Plimmer, Mr W. H. Quick and Mr Meek for the executors under the will, and Mr Skerrett for the residuary legatees. Dr Findlay, in opening the case, stated that the application was brought under the second section of the Testator’s Family Maintenance Act, which reads as follows: —“That where adequate provision for the proper maintenance and support of a wife is not made by the testator, the Court in its discretion will order that adequate maintenance be provided.” He stated that something like thirty years ago the petitioner separated from her husband, and a deed was executed under which she was to be allowed £l5O per annum for the maintenance of herself and her two sons, James and George, who were born of the marriage. James died when he was nineteen years of age; George was still alive. He was forty years old, was in indifferent health, and had two young children to maintain. He was still in receipt of an allowance from the petitioner, and it was probable that that allowance would have to be continued for some considerable time as, although he had been left a Bam ’of £IOOO by his father out of the residuary estate, it was subject under the provisions of a codicil to the payment of certain moneys to other members of the family and the payment of this £IOOO had been postponed by the trustees pending the realisation of the estate. Mrs Plimmer, the present applicant, was now seventy-six years of age, and had no property and no income beyond the £l5O per annum given to her under the deed of separation. It was desirable that in these her later years some adequate provision should be made for her comfort and well-being. He maintained that the Court would take that view of the case, because in the course of nature it could not be very many years before she would follow her husband, and it was tut right that her few remaining years should be spent in that comfort which a person in her position in life could rightly expect. The late Mr Plimmer died worth, roughly, £35,000, and but for the fact that he had parted with a considerable portion of his property, he would probably have left something be' ween £SO,GOQ and £IOO,OOO. Consequently, this motion was brought before the Court in order that an adequate provision should be made for his widow. Dr Findlay pointed out that Mr Justice Edwards, who had heard most of the applications that had been brought under this statute, had agreed with the view expressed by the Chief Justice in the case of Phillips that in determining whether an adequate provision had been made the Court- would have regard to the value of the estate and the position which ■ the wife had held. ' Of course, in this ease there was no suggestion of any misconduct on the part of Mrs Plimmer, and she was, therefore, unques- • tionably entitled to the fullest consideration at the hands of the Court, and, indeed, to the same relief as if she had been living with her husband all along. Had she been living with him when he died, it was obvious that she would have enjoyed a much greater - amount of comfort than that which £l5O a year could procure for her. As the years passed bv it was only reasonable to suppose that she would require medical attention and careful nursing, which the small sum allowed her would not procure, and, besides, she would still have to contribute towards the support of her son George. Dr Findlay proceeded to refer to several cases in which the allowance to a widow was increased by the Court in a larger proportion to the value of the estate than was asked for Jn this case. The question was, what fund the additional allowance, if the Court granted it, would come out of? •

The Chief Justice: What does the will say about the payment of debts and charges: does it make any provision ? Mr Quick: There is no special provision : they come out of the residue. The Chief Justice: What is the value of the res'duary estate? Mr Quick: It is suoposed to be about £Booo—that is the gross value. Dr Findlay said there were annuitie® to the amount of £250 per annum to come out ot tht residuary estate until the estate, could be realised; and the £IOOO left to George was in a sense postponed. The trustees could postpone the realisation of the estate for fivo years. In the circumstances, it seemed only reasonable: that the widow’s annuity should -be increased to £SOO, which would be an adequate allowance considering the value of the estate and the position in life of the widow and ii was to be remembered that according to the code which prevailed all ovei Europe the widow was regarded as en-

titled to one-third of her deceased husband’s estate. If this were done, Mrs Plimmer would receive something like £SOO, which was the sum asked for. It was, of course, true that the Court would not proceed to make a fresh will, but it was the plain intention of the Legislature in passing this act to enable the Court to correct an injustice done by a deceased person by his will; and the Court, in the case of an innocent wife, had allowed sums equal to one-third of the estate and sometimes more.

Dr Findlay then called John Alfred Plimmer, who stated that he was a son of the late John Plimmer, and was familiar with the position of his estate. He had made an estimate of the total value of the estate, and made it to be about £25,000; but that value had been added to by the Stamp Department. Before he died a portion of the estate was sold, and testator also at various times made gifts to members of his family. Mr Quick: Gifts mad© during his lifetime do not count in this ease; his acts of munificence have nothing to do with this claim.

The Chief Justice: I don’t know about that. Supposing a man gave away £20,000’ and left his wife without anything, this act would enable the Court to interfere.

Mr Quick: But is this Court going to inquire into the position of every beneficiary under the will? The Chief Justice: To ascertain a person’s position in life w© must consider his property. Mr Quick: I don’t think a person should be put into the box to say what took place between him and the testator, and I object to any particulars of these gifts being stated. Dr Findlay said he did not want to know the particulars; he only wanted to know their value. He asked the witness if he could give any idea of the value of the gifts which the testator made within the five years preceding his death. Witness said they were probably worth between £2OOO and £3OOO, eliminating the property that was sold. Mr Quick: Is the Court' going to take into consideration the value of the property that was sold? The Chief Justice: Suppose this happened : that a person has £20,000 worth of property, and he sells it for £5000; wouldn't that he taken into consideration? We have a right to do so. We must try to get at the testator’s position in life.

Mr Quick: At the time of his death, I think.

Dr Findlay: Did he sell any property to his children within five years of his death? .

The witness replied that his father sold Barrett’s Hotel in Wellington to him and his brother Charles. Its assessed value was £IB,OOO. They paid for it and other property £30,000 — £SOOO in cash, and they took over a mortgage of £25,000. That mortgage had not been paid off, hut, as a matter of fact, it had been increased. He did -, nob think his father within five years of his death gave anything more than £2OOO worth, but he was constantly making gifts. The money which witness had any knowledge of was distributed mainly between his father’s daughters and their sons, and were small sums given at different times. Witness’s scxn, William Roden Plimmer, had been left £SOO. The rent of the boardinghouse on Plimmer’s Steps was £5 a week with another cottage. Witness’s grandson was to receive a parcel of 1825 shares in the “New Zealand Times.” All of the testator’s daughters were married.

In cross-examination by Mr Quick, the witness said there were five sons and three daughters by the first wire. Witness’s brother, William, .had eight children, and two of them, Harry and Harcus, were provided for by the will. Mrs Gaby's husband was an engineer, carrying on a struggling business, and w'itness’s father used to assist him during his lifetime by giving him a few pounds now and then ; and that was what witness meant when he spoke of the gifts which his father had made. Mns Richardson, another daughter, had a very large family, mainly daughters, and he did not know if they were earning anything or not. One of the daughters was married, and the others were from twenty to twenty-six years of age. He thought they lived with their mother, and assisted in the household duties. Their mother was not in affluent circumstances, but rather the reverse. Another daughter had been ui>fortunate in her marriage, as she had been apart from her husband for a number of years, and had not been supported by him. She had three sons, who were all married. She was not in affluent circumstances, but she had a house free, which was one of the testator’s gifts, and fifty pounds a year. When the testator gave these moneys during five years before his death it was in cases of absolute want. Barretts Hotel was really forced upon witness and his brother. “Whitehall” was a house about thirty years old, and it requiied constant repairs. There was also another cottage there, which was still older. Witness’s son had to pay for the repairs and also the rates, taxes, and insurance. The City Hotel was a

wooden building about thirty, years old. Possibly if it bad no license it could be turned into shops, but h© did not know if it could be converted, because he thought it was in the “ brick district.’ The rent was £8 a week. Miss Wilson was bis father’s housekeeper for some thirty years, and she had a lif© interest in a bouse at Plimmerton. The separation between the claimant in this case and his father took place about thirty years ago, and there had. been no conFmunicatiou 'between them, to his knowledge, since; he did not believe they had ever sDoken.

Mr Quick: Was your father’s property acquired before or since the separation. —Since the separation, absolutely. Mr Quick: Can Mrs Plimmer take any credit to herself for having contributed to the aggregation of that property ?—«No, certainly not. Dr Findlay: No, perhaps not, except living on £l5O for all these years, and keeping her two children. Mr Quick: Have the daughters had more or less than £l5O a year ? —The sum has varied, but latterly they had certainly not had more than £l5O a year to live on.

Have they been a comfort to the old man? —Well, I would not like to say much at all about that.

Charles Henry Walter Dickson, clerk in the Stamp Department, produced accounts in the Plimmer estate. He said the total value, according to the Stamp Department’s figures, was £34,949 5 s 7d. The accounts which were originally filed were £24,272, but they had agreed that the amount was £27,949, there being a difference of £7OOO odd. Janet Plimmer. the claimant in this action, said that she separated from her husband about thirty years ago. There were two sons of the marriage, George and James, and the latter died when he was nineteen years of age. George was still living. He was married, and had two children. He was in receipt of a salary of £IOO a year, and witness had all along been contributing to his assistance out of her £l5O which she received under the deed of separation. She had no other property of any kind. She was seventy-six years of age. In cross-examination by Mr Quick, the witness said that she was married for not quite eleven years when she separated from her husband. She had not brought her husband any property when she married him. This was the case for the claimant.

Mr Quick, in addressing their Honors, said that the statute under which this claim was brought was an act peculiar to New Zealand, passed in the interests of wives who were left out in the cold by their husbands from caprice or from any other reason, and probably in order that the State should not suffer on that account. It was intended that such persons should he adequately provided for, bu. he submitted that the act did not apply, and was not intended to apply, to a case such as this. Mrs Plimmer had not been any comfort or of any assistance to her husband iu accumulating his wealth for some thirty years, when she separated from him, and entered into a deed of arrangement whereby she was to receive £l5O a year, and her trustee undertook that she should not make any further claim against him. The Chief Justice said he did not see how the deed could stop hed from doing so under this act, as the act was not passed for some twenty-six years after the deed was made.

Mr Quick said that the trustee under the deed was a Mr Gandy, who entered into a personal bond to indemnify the testator against anything of that sort occurring.

The Chief Justice said that could not be suggested.

Mr Quick said he did suggest that, and he thought he could cite cases which would have a direct bearing on the subject. This deed was still in existence, and he submitted that under it the estate had a claim against the trustee for an indemnity. Mrs Plimmer was in the position of a woman who complained, that she had been badly treated by her husband, because effect was being given to his wishes with regard to the children by his first wife. This act having been in force for only a few years, it was difficult to cite cases having any bearing upon it, _ but he would refer to the case of IVilkinson and Wilkinson, and that of Handy and Walker (N.Z.B.R. 22), and also the oases of Brush and Brush, and in re Rees (5, Gazette L.R., page 145). Mr Skerrett. on behalf of the residuary legatees, contended that at the time of has death the testator must have been under a moral and legal obligation to support the claimant, or the Court would not grant the application, but would exercise its discretion in the matter. In considering what provision was adequate regard should be had to the ci cumstanoes of the estate, and the position which the wife had pro* viously occupied. His contention was that reference ought not to be had to the position or the value of the estate when the wife had by deed abrogated her rights and privileges as a wire, and when the provision made wa*. adequate at the time it was made. He repeated that thirty years ago, by that deed of separation, Mrs Plimn.er deliberately abrogated her ights, and self from the obligations of wifehood. She bargained and covenanted to v&-

ceive £l5O a year for her life. Thas sum no Court had any discretion to re* duoe or increase. That sum was ad©" quace for her support at that time, and he submitted that if it was sufficient then for her maintenance in the condition of life in which she had. hitherto lived, it was so now. It was only suggested that it was not adequate now because her husband died possessed of considerable property. Another reason advanced was her age, but it might be pointed out that her advanced age decreased her spending power. '±!he Chief Justice: Yes, but an old woman needs someone to nurse her or to do her house-work.

Mr Skerrett thought it would _ be agreed that, according to the conditions of life in this colony, £l5O a year was ample for a woman seventy-six years of age. The Chief Justice: £l5O in 1874 was \ orth far more in Wellington than it is now.

Mr Justice Cooper said the Court had to consider what the position of Mr Plimmer was immediately before bis death, and whether he had made adequate provision for his wife during his lifetime and afterwards. Mr Skerrett submitted that the Court was undertaking a very grave responsibility if it was prepared to say that after a wife had provision made for her for thirty years, which she had accepted as sufficient for her wants, she could come to that Court merely because her husband had died possessed of considerable wealth, and obtain an increased amount. He submitted that there was no moral ncrr legal obligation, and Mrs Plimmer could neither get more nor less than the amount she had covenant-ed-for in the deed of separation. A woman in this position was not entitled to come to the Court unless she could show that there was some misconduct on the part of her husband which would set aside this deed.

The Chief Justice: The question is: How does the effect of the deed influence the Court ?

Mr Skerrett said it should do so, because this woman thirty years ago voluntarily agreed with her husband to accept £150,. and that sum was sufficient for her support. If the estate had been worth £IO,OOO instead of £25,000 he did not think the Court would have increased the sum payable to her. '

Mr Justice Oooper said probably not, unless the old lady was in a position of life in which she could not live upon it. The obligation was thrown upon he? by the deed to support her two sons, but on© of them was now dead, and the other was some forty years of age, and it could not be said that he was now in the custody of his mother.

Mr Skerrett submitted that the Court would inquire into the exact details as to how Mrs Plimmer lived, and what her expenditure was, in order that it might see that it was exercising its jurisdiction rightly. The Court had nothing to do with the individual property out of' which this money would have to come if the claim was allowed. The Court was only asked to make an order out of the estate, and not to apply the “ doctrine of abatement,” and it was no use making am order, because the trustees of the estate were entitled to an indemnity from the trustee, Mr Gandy. Dr Findlay, in reply, argued that the deed did not prevent Mrs Plimmer from coming to the Court and asking for an increase, for the circumstances were wholly different now to what they were thirty years ago. Since then the testator had made money, and the sum of £3 a week could not be regarded as adequate for the maintenance of his widow. The remedy under the deed was not the remedy under the statute, which was an entirely new one, and the statutory remedy was not affected by the deed at all. The parties did not contract with regard to this new law, and had not contemplated it coming into existence.

Their Honors reserved their decision.