SUPREME COURT.

Otago Daily Times, Issue 19503, 11 June 1925, Page 2

SUPREME COURT.

(Before his 1 Honor Mr Justice Sim.) His Honor Mr Justice Sim held a sitting of the Supreme Court yesterday, when three applications under the Family Protection Act came up for hearing. Jane Kirkland, Mary Bain, and Annie Topping (Mr H. E. Barrowclough) v. William Morris and James John Benjamin Morris (Messrs S. Solomon, K.C., and J. it. M. Lemon). Application under the Family Protection Act. Mr Barrowclough said that the proceedings arose out of the will of Beniamin Morris, farmer, Owaka.. 'lho deceased had left a widow, three sons, and three daughters. A fourth son had been killed at the war. The oldest son had left the family home some yours ago, and had started farming on his own account, and at that time ho had secured some provision from his father. He was not a party to the proceedings. The other tVo sons had leases of separate parts of the old home farm, and the daughters were married and had left the farm. The deceased’s will was a rather unusual one. Ho left to each of his three married daughters a legacy of £IOO each, but this had failed because there were no funds to meet it. He appointed his two sons, William and James, then lessees of the farm, his trustees, and bequeathed the farm to them, and they had to make payment as rent to the widow for the restof her life. It was not intended to attack the provision for the widow. After the death of the widow the farm was to be hold in trust for the two trustees for th«ir lives, and after their death it was to go to the children of the trustees. Eventually, therefore, the children of William •and James would receive the whole of the farm. The gift to the widow of the residue of the estate was practically of no effect. Under these circumstances _ the three dauglifers were without any provision at all, and they came before the court to ask for further provision to be made for them. The stamp accounts as filed showed ttie final balance of the estate at £3204 13s 9d, but there was a sum of £9OO odd duo by the estate as a mortgage. This amount had been guaranteed by the father for Ids son James, and the estate had therefore a claim for this sum against James. His Honor; Is that admitted? Mr Barrowclough: Yes. It had to he remembered that there might be sonl _e difficulty in recovering the money, but it it were recovered the estate would be worth just a little over £4OOO. Mr Solomon said ho would like to point out that James had absolutely no funds. Continuing, Mr Barrowclough said there wac the sum of £9OO, for what it was worth, and the result was that the daughters got nothing. There was a large family, and they assisted their father on the farm. The son’s had left the home for a wihle and (hen came hack and worked the farm under lease. The girls 1 had worked paiticularly hard to enable the deceased to carry bn the farm. The financial positions of tlie daughters were not good. His Honor: What order do you suggest the court should make? Mr Barrowclough said that after the death of the widow the properly could be sold, and that the. daughters could receive a stated amount. At the very ‘least they wove entitled to £IOO each. 'faking the total estate at £3OOO, the only claims under the provisions would ho those of the two trustees, and he suggested that if the daughters received £SOO to 'he divided between thorn they would not bo asking too much. Ho admitted (hey could mot got. anything that day. Ho submitted that the daughters had a greater relative moral claim than the grandchildren. His Honor; Your claim is also against the sons. * Mr Barrowclough; It may ho that they themselves think they arc entitled to more than a life interest in the estate. Mr Solomon said it was an unusual case, and certainly a difficult, one for the court, but he submitted it was not a ease lor the provisions of the Family Protection Act. It was really a case where no adequate provision had been made for the applicants. Both the sons wore in poor health. On the other hand, the circum: stances of the applicants were such that it seemed to him none of them came within the scope of the Family Protection Act. His clients did not wish to deprive the three daughters of their legacies. In fact, he had endeavoured to arrive at some arrangement, but there was a grave difficulty in the way. The sons had a lease that expired at the end of this year, and William Morris had put: some hundreds of pounds into it to make a living. If his Honoi ordered Unit the farm should be sold a active injury would be done to him. The property altogether might lie expected to ’realise some £2500. He could not quite see how, under the circum stances, the daughters should get more than they would have got had there been the money to pav them the legacies of £IOO each’. What was to ho done with the balance if the estate wore sold after the £SOO was paid? His Honor -would have to make a new will, because the sona had a life interest in the property. Were they to be deprived of that? Ho submitted that if what was suggested wa« done by Mr Barrowclough the three beneficiaries who wore adequately provided for would bo better provided for, and the other two beneficiaries, adequately provided for, would be inadequately provided for. His Honor: Supposing a charge were placed on the farm for the payment of the throe legacies, and perhaps something more, would the trustees have power to mortgage the estate to raise (he amount? Mr Solomon: There would ho great diffieult.y in getting the mortgage. His Honor said he would make an order charging the farm with £6OO for the payment of £2OO to each of the three daughters after the death of the widow. Leave was reserved generally to any party to apply, including leave to apply for directions as to the method of raising the £6OO after (ho death of the widow. The parties to pay their own costs. Mary Jane Bardsiey, widow (Mr J. B. Callnnj v. the Public Trustee and .Tonn Thomas Bardsle” and William James Bardsiey (Mr A. C. Stephens). Application tinder the Family Protection Ad for a variation of the terms of the will of John James Bardsiey. His Honor made an order in terms of tho suggestions submitted by counsel. Janette Dasler, widow (Mr J. B. Callan) v. the Public Trustee (Mr H. Brasch) arid others (Mr A. Duncan). Application under the Family Protection Act for further monetary provisions. His Honor made an order in the forms submitted by counsel.