SEQUEL TO DIVORCE.

New Zealand Times, Volume LXXVII, Issue 5372, 3 September 1904, Page 2

SEQUEL TO DIVORCE.

A DEAD FATHER’S BEQUEST. Yesterday tho Chief Justice heard at, application by Mr AVilford, on behalf ot Enijly Monk, married woman, Willkauae, for the custody 'of her t hree children of a former marriage, Ethel Mary, Esther Prudenoe. and Frederick Horaco Gaskin, aged seventeen, fourteen, and .six years respectively. The facts of tho care, as sot forth, protented some unusual features. It appeared that the father of tho children above mentioned, the late John Gaskin, Ivarori, who died in November last, had divorced his wife in May, 1901, and, placed the children in different institutions. At tho time of his death he wat possessed of considerable property, whch ho loft in trust lor his children, subject, to the following provision:—“lt any of my children before mentioned shall at any time after my death livewith and place themselves in any way under the control of their mother, then, such child or children shall thereupon forfeit all his or their interest under this my will, and my trustees shall hold the share, original an. well us accruing, of every such child, in trust; for the other or others of my children before named, who shall not have lived with and placed themselves under lh« control of their mother.” Mr T. M. AVilford appeared in support of tho application, and Mr T. AV. Hislop opposed on liehalf of tho trustees (George AY. Longhurst and AYilliam H. AVallaco, Makara). Mr AVilford argued that tho words .‘‘placed themselves under tho control o! their mother” meant “voluntarily placed themselves.” If the Court now gave tho mother custody of tho children, they could not ho said to have “voluntarily” placed themselves under hor ‘ control, and, therefore, would not loro thoil shares under tho will. Counsel further contended that even if all tho children voluntarily placed themselves under their mother’s control, they would still, though forfeiting thoir interest under tho will, bo entitled to succeed to the property as next of kin. The will provided that in the event of any child forfeiting his or her interest, tho trustees .should hold that share in trust for the other or others who had not so forfeited, and if all tho children forfeited in that way;, tire trustees would have no child to give a share to. Ho submitted that it would bp improper that thoinatural relationship between a mother and her. children should bo broken. The mother had married the co-respondent in tho divorce proceedings,-which were not defended. In the course of some .discussion, it was mentioned that-tho oldest girl was an inmate of St. Mary’s Home, Ivarori, the second girl was at St. Francis Xavier’s Academy, Scatonn, and Ilia hoy was attending a State school. BoJh tho parent.’) wore Protestants. - His Honor observed that what ho had to consider ■ was tho interests of Uni children. So far as one child, the girl in St. Mary’s Home, Knroi’i, was concerned, it was perfectly plain from Ur Mills’s letter that she needed constant caro from a medical man.. Tho girl was suffering from her eyesight am) hearing, and needed more than the ah tent ion to from a mother in » house, oven with a small'familyi H< did not think that sho should bo removed, but with regard to the .. other two, could counsel suggest that the children would be benefited by complying with tho application? Bo could not' look at the feelings of parents, except in a secondary sense. AVith regard to tho second girl at St, Xavier’! Academy, the mother did not object tc any question of religion. If that were raised, ho should feel hound to say that tho child should bo brought up in thin religion of the parents. A - Mr Hislop interjected that, there vrai no question of religion,in the case. His Honor asked would not the girl ho better off whoro she was at present than with her mother? He .'might make an order to say that the daughter i should spend a month a year with lh< mother. : , V'?':' Mr AVilford said ho would not object to such an order. . Mr Hislop pointed cut. that the position of tho mother’s home had to In considered. His Honor: :I, do not wait to say that merely because tho ; mother hat gone wrong it should depritc her of ur interest in her children. Mr Hislop: That is. not the only ground in the affidavit. - Mr AVilford asked that an order encfi as that suggested by tho Court should be made. ; .- "A■ His Honor: It is clear that (In mother would ho 'entitled to visit hor children, and if sho could not do that, 1 do not sc© why they should not visit her. ■

Mr Hislop objected that what hie learned friend now asked lor was not tho application tho trustees were there to meet. It was, or would be, -a. distinct application. As a matter of fact, the mother had visited tho.. children since . these, proceedings : commenced without objection. Counsel understood that tho mother had been helping to make, a living by cooking for a camp, and die asked Jf, under ■ such circum--stances, it was proper that the children should visit her? She did not appear to have a home to which they could go. Mr Wilford contradicted the state, incut, and added that he would bo prepared to bring evidence that the mother had'a home. His Honor observed that if Mr Hislop suggested that there was no proper' homo for tho children, ho should not allow thorn to go there, even to visit. At present he was not hi favour of allowing the mother to have control of tho children. H'o thought she should have leave to visit them olio© a month, and. if she had a'*propor . home, that they should spend part of their holidays with her. He should adjourn the. application until next Friday to enable evidence to bo given on that point. / Pei-mission was given to have affi- , davits filed on each side as to the condition of the mother’s homo.