FAMILY PROTECTION ACT

Otago Daily Times, Issue 15105, 30 March 1911, Page 8

FAMILY PROTECTION ACT

IMPORTANT JUDGMENT.

(Peb Uxited I'bess Association.)

WELLINGTON, March 29. Reserved judgment was given by his Honor Mr Justice Chapman to-day in an originating summons in which four children, disinherited by their mother's will, asked that provision be made for them. The judgment is an important one. The parties in the action in the matter of the of Elisabeth Green (deceased) were liOiiisa Margaret Palmer (married woman), Margaret Louisa Jane Taylor (married woman), Emma Christina Walter (married woman), and Henry Francis Green (barber), ajl of Wellington, children of Elizabeth. Green (deceased), the plaintiffs, and Reginald Herbert Webb, solicitor, and Charles John Munn, executor of the estate, defendants. Plaintiffs claimed to be entitle*] to ,in order under the Family Protection Act making such provision for the plaintiffs, or some of them, out oF the estate upon the grounds that testator died leaving a will dated 20th July, 1910, without making adequate provision for their proper maintenance and support. On behalf of plaintiffs it was stated that on or about 13th November, 1806, deceased made a ■niU whereby she left everything to the children in equal shares, subject to a lifo interest to her aster, Sarah Bailey. Under a subsequent will made on the 6th October, 1910, Miss Bailey got everything. The estate was a very small one and worth something like £930. There were six children, four of whom were plaintiffs. Three of the plaintiffs wore married women, their husbands being casual labourers. Plaintiff Green ivas a barber ■when he was capable of working, but he could do no work pwing to physical incapacity. Another of the plaintiffs had only one leg. All were in poor circumstances.

" I dismiss without difficulty," said his Honor, "tho claims of Mrs Palmer and .Mrs Taylor. They aie women in good health, married to able-bodied men. I do not think that they ought, to have put forward their claims, and as I consider that they have put the estate to unnecessary cost I order them to pay £10 10s costs to the executors, and for this I hold them jointly and severally liable. The two remaining claims must be treated as claims as to which I have discretionary authority given me by the act, and I propose to deal with thorn on that footing. First, as to Henry Francis Green, who is a barber, now out of work. I think that this claimant has made out Ms case. There is a mass of evidence, but it comes to this: Dr Izard satisfies me that this man is suffering from, a. certain ailment. It is probable that he has received it as an hereditary disease. 'Hat it greatly reduced his power of earning a living is made out by unbiassed evidence. I cannot, however, do more than order him some,.slight assistance. Were I to do more it would greatly reduce the estate available for the maintenance of the residuary legatee. I think a proper allowance to make in his favour is 5s per week, and this I charge upon the estate until the executors can make some proposal for ■exonerating it or any part of it. This will run from the date of this judgment or such earlier date as he ceased to reside with the residuary legatee. It will be payable quarterly. I make, however, this reservation: Dr Izard admits that there is in tho experimental stages what is claimed to be a cure for the ailment from which this maji If it comes to be used' in New Zealand and is found applicable to such a case as his, or if H. F. Green refuses to go to the hospital to have it tried, an application may be made to a judge of this court to vary this order. As to Mis Walter," his Honor proceeded, "I find that as a single woman she wa-s capable of earning her living. Her husband is a labourer earning a" small wage. She has a child, and when she was 14 years old she had one leg amputated. I think that hers is a. case for which the testatrix ought to have made some provision. I cannot do much for her, but I think that she will be materially assisted by payment of a sum of £50, which I order the executors to pay her. is the raising of this sum may tako some time, I allow them 12 months from this date in which to pay it. They are at liberty to pay it iii whole or in part sooner if they think fit. No doubt these payments mil seriously trsnch upon the residuary fund, but I am influenced by the circumstance that the residuary legatee has no dependants, and that it is open to her to invest part of the fund in an annuity, which at her advanced age will give her enough to live upon. Should it bo desired to liberate part of the fund for this purpose this may form the subject of an application to a judge. I reserve liberty to apply generally. I am not able to relievo either the successful claimants or the residuary legatee of the whole of the costs, but I direct the executors to pay the claimants tho sum of £10 10s and court fees by way oi coets."