A DEGREE NISI

New Zealand Times, Volume XXXIX, Issue 8776, 4 July 1914, Page 8

A DEGREE NISI

PIQUANT ARGUMENT INCISIVE COMMENTS BY THE CHIEF JUSTICE. A matter arising under the Family Protection Act was responsible for some rather warm discussion in chambers at the Supremo Court yesterday afternoon, before the Chief Justice (Sir Robert Stout). In April last application was made on behalf of Alice Barrow for maintenance out of the estate of her deceased husband, Charles Louis Barrow, of Otaki, and an order was made for the payment of 22s 6d per week for the maintenance of the widow and her daughter. The Public Trustee, however, had subsequently secured the suspension of the order, and yesterday a renewed application was made for maintenance. At the outset, Air R. B. ’Williams, who appeared for Mrs Barrow, said: “We have neither come here by summons, motion, nor anything, but by Your Honour’s suggestion regarding a matter mentioned in April last.” He went on to say that on April 2nd the court made an order for tho maintenance of Mrs Barrow and her child (a daughter, aged ten years). On April 3rd, he (counsel) received a letter from Mr J. W. Macdonald (solicitor for the Public Trustee) stating that ho had discovered that tho deceased had obtained a decree nisi in divorce from Mrs Barrow, and that, on bringing this before tho notice of the Chief Justice, His Honour had suspended the order made for the maintenance of tho widow; also that he (Mr Macdonald) would. bring the matter before the court again and bake stops to secure the 'repayment of £9 paid to Mrs Barrow.' “ I have been systematically following Your Honour,” Mr Williams added, “and trying to get this before the court. Three months have elapsed, and not a penny of the 22s 6d per week for which the order was made has been paid. It seems to me that the right to suspend an order should bo on ah inquiry. We had no inquiry, and I have come to ask that tho money be released so that the widow can get the 22s 6d per week.” His Honour: “The fact that the woman had a rule nisi against her ought to have ueen mentioned to the court.” . Mr Williams; “Under section 33 of the Act, tho coutt may-refuse an order to any person whose conduct, in the opinion of the court, disentitles them to it. I submit that the Public Trustee should have mentioned ” His Honour: “I think you should have moved. When the order was suspended, you could have asked for the matter to be brought before the court.” Mr Williams: “ The Public Trustee could have sat tight with that money for the rest of. his life.” His Honour: “ I don’t see that; the Public Trustee is to be blamed: he acted quite rightly.” In answer to a question by HiS Honour, Mr Macdonald stated that the order nisi was made on September 2nd, 1910. - His Honour: “And it was never made absolute.” - . Xt was also stated that the will was dated November 30th, 1910. Mr Williams stated that an affidavit which had been filed was incorrect as to when the parties came together again. The deceased came back to his wife two years and six months before his death, and not six months before he died. They became perfectly reconciled. “SOLICITOR TO BLAME.” His Honour said that for the present position tho widow’s solicitor was to blame for not intorming the Court of the facts at the time.. It was enough to disentitle the widow to any money at all. “Personally, if you knew it,” His Honour told Mr AVilliams, “you ought to have told the Court.” Mr Williams-; “The Court knew it •is much as I did at the time.” His Honour: “What did the Court know?” Mr Williams: “The woman went into the box and • was asked when the will was made, and she said it was when they were apart.” His Honour: “This is a very extraordinary statement for you! to make. Am I to carry in my mind all the people who appear in divorces ? It was your duty to inform the Court of tho facts of the petition. I did not know she was divorced. Tho Court ought to have been informed that there was a rule nisi granted against her, but it was ■ not informed of that.’’ Air Williams: “With utmost respect I fopudiate being a party to any suppression.” His Honour: “W’hy did you not tell the Court?” Air Williams: “The woman told me; ‘Sir Robert Stout heard me.’ ” His Honour: “Why did you not tell the woman she had a rule nisi against her?” Air Williams: “It was perfectly apparent.” His Honour: “You know, and ought to have told tho Court.” Air Williams: “I am not to blame in any way.” His Honour: “I am very sorry yon don’t see you have done wrong.” Hr Macdonald, in addressing the Court, said that all tho information he had was that there was a separation. He was not told there was a divorce. He asked the woman about th© separation, and she was equivocal and avoided the point. Commenting on the statement that a reconciliation had been effected two and a half years before the husband’s death. Air Alacdonald said that the widow had said that since the granting of the deforce nisi she had lived with Air and Mrs Skinner till Juno, 1911: Air Williams intimated that he was going to call evidence in answer to that affidavit: His Honour ascertained from Air Alacdonald that the child received an income of £lB per annum from an insurance policy, and the property was left to her if she attained the ago of twenty-one. Air Williams called as his first witness Allan Garment (father of ■ Airs Barrow), who gave evidence to the effect that there had been reconciliation between bia daughter and her husband. , APPLICANT IN THE BOX. Airs Barrow, in giving evidence, stated that no question had been asked her as to divorce proceedings, and it had not been her intention to deceive the court. At tins stage tho witness broke into tears. In answer to Mr Alacdonald, witness stated that she had said there had been, a separation, but she had not

thought it necessary to go into the matter fully when the application tor maintenance was heard. “You said the separation was due to drink,” observed His HonourWitness added that her Husband bad promised her a life in his property before ho died. After further evidence had been heard, Air Alacdonald stated that the Public Trustee had no feeling tvhatover in this matter, either one way or tho other. ~ His Honour: “X (think you weie quit© right—you don’t need to explain. was proper for me to bo informed. Air Williams assured the court that he did not suggest or think there was any feeling in the matter- He thought Air Alacdonald Had only deno his duty as a public officer. CONDITIONAL ORDER AIADE. The Chief Justice stated -that, in bis opinion, there had not been a _lud disclosure to the court at tue tune the order was made. In giving judgment His Honour said he would bJ.'ow, tor th© months of April, May and June, which had elapsed since the order was made, payment at -the xar-o of <s 6d a week for the child. The widow was entitled to this sum. From July Ist he would allow 21s per week on condition that the order was to bo for three years and that at the end or that time further application was made. If the conditions were broken, it would bb the duty of the Public Trustee to bring the matter before the oourt. The conditions were as follow:—(1) That tho widow maintains the child and gives it proper education ; (2) that she remains chaste. It she married again or did not remain chaste, or' if the child was not properly maintained, the matter was to bo brought before the court. His Honour explained .that the order was based on the fact that the widow was the wife of the deceased when he died. He had also taken into consideration the fact that she was weak and ill; had she not been in bad health, ho might not have done this. Upon Air Williams asking for costs, His Honour declined ito allow them, adding, “The whole , thing has been caused by there not being disclosures at the time.” . Air Williams- said he had been perfectly frank in all his dealings. “You have not been quite frank in this matter, Mr Williams,” was His Honour’s response. “Your Honour,” Mr Williams commenced, but the Chief Justice silenced further discussion with the remark, “1 have given my judgment.”