SUPREME COURT.

Otago Witness, Issue 3015, 27 December 1911, Page 5

SUPREME COURT.

IN CHAMBERS. Tuesday, December 12

(Before his Honor Mr Justice Williams.) | Probate was granted in the estates of i William Muirhead (Mr Bundle) and Mary , M'Naught Falconer (Mr Wilkinson). . i Letters of" administration were granted in re Henry Young (Mr Maoassey). In re Maurioe Joel (deceased).—Motion for remuneration to executors (Mr Ramsay).—Referred to registrar. ! In re Robert Alexander Gunion (de- ' ceased).—Motion to amend (Mr Brent).— Accordingly. I In re James M'Bride, jun. (deceased.)— Petition for leave to sell or mortgage land (Mr Sidey).—Order in terms of prayer, i In re Constance Harriet Copland (dol ceased). —Petition for leave to vest property . in trustees (Mr Scurr). —Order in terms of | prayer. Douglas v Douglas—-Motion to dispense •with personal service (Mr Adams) —Order as prayed. IN DIVORCE. MORTON V. MORTON. Petition for alimony and custody of children. Mr Hanlon appeared for the petitioner, j Louise Morton; Mr Hay for the responi dent, James Fairley Morton. \ I 'The parties were, married on c the 10th , of August, 1899, and there are three chil- ; dren, born in April, 1902, September, 1903, | and February, 1906. On the 10th November, 1910, a decree nisi was granted against Morton- on the ground of adultery. The petitioner alleged that Morton, by being addicted to drink and by reason of his immoral habits, was unfit to undertake the : custody of the children, and by reason of his beißj; absent from home during the day was CV-ble to give them the care they require<7. The petitioner resided with hear mother at Musselburgh, and if custody I of the children was given, to her her ; mother was quite agreeable to her taking I the children to her home. j Mr Hanlon opened the facts, and called as witnesses the petitioner (Mrs Morton), ! Ann Josephine Daly (who for a time helped I in the house), Jessie Abernethy (a neighi bour), and Georgina Ban*. Mr Hay said that the question of main- [ tenance was not important to Morton. He I was quite prepared to obey the order of the court. The other question, o€ the custody of the children, was of thft utmost , : importance to him. Ho did noe want to | shut tho mother oil from the children, j but he suggested that h@ should retain custody and that she should have reasonable access to the children. As she had i never had the children since May, 1910, she could not, say that she was being deprived of anything. The ohildren were quite happy and contented, and well provided for. Evidence would also be called to show that Mrs Morton was a sort of gadabout and flighty, and that because of her neglect of her household duties Morton had to oall in a housekeeper. Evidence was given by the respondent, Margaret Lochhead, Rev. R. Fairmaid, and Charles Tillie. After counsel had addressed the court, his Honor reserved his decision. IN CHAMBERS. Friday, December 15. Probate was granted of the wills of Agnes Fraser Brown, James Harper Smaillio,

Catherine Irvine, Elizabeth Hooper, and Thomas Hicks. Letters of administration were granted in the estates of Hugh Find Lay, deceased; Herbert Chas. Neville, deceased; and Henr,y Hayman, deceased. In re Ada Ethel Branson, deceased. —Application for administration of will.—Mr Wm. C. MacGregor appeared in support, and Mr Woodhouse for -the caveator. —The question for the determination of his Honor was whether the Public Trustee was executor according to the tenor of the will, or whether administration (with will .annexed) should be given to the beneficiaries (the grown up children) under the will. —After considerable argument his Honor reserved his decision. : In re Wm. Pickersgill.— Motion for order to sell (Mr J. Macdonald).—Order as prayed. In re Thos. Hicks (deceased).—Motion for leave to file parers (Mr Allan). —Accordingly. Henderson v. Henderson and another.— Summons to proceed informa pauperis, and to amend petition, (Mr Ca.Uan for petitioner, Mr Adams for respondent, and Mr "Wilkincon for co-respondent).— Summons dismissed, with one guinea oosts to respondent and the co-respondent, without prejudice to petitioner to apply to be amended later on. MATTERS MATRIMONIAL. MARY ELIZABETH ELLEN SMITH v. JOSEPH SMITH. Motion for custody of children, and to make decree nisi absolute (Mr Moore). —Mr Hanlon, appearing for the husband, said that both parties were now in Wellington, and the husband suggested that the motion might be fought out there. He (Mr Hanlon) had pointed out to him the objection to that course. His Honor decided that tho mother should retain custody of the children. LOUISE MORTON V. JAMES FARLEY MORTON. Petition for custody of children. —Mr Hanlon for petitioner, Mr Hay for respondent. . . t . In this case his Honor gave judgment as follows:—This is a petition by the wife for the custody of the children of a marriage which has been dissolved on the petition of the wife on the ground of the husband's adultery. There are three children—a boy and two girls. The boy is 10 years of age in April next. One girl was seven years last September, and the other will be six next February. The children are at present in custody of the respondent and are happy with him. He is evidently very fond of them and has done his bast to bring them up properly. . He, however, has been guilty of the matrimonial offence which has caused the dissolution of the marriage. - The wife, on the other hand, is innoosmt. There is no suggestion that she has any immoral tendencies, or that she is given to drink. rihe appears to be in every way a perfectly respectable women. She has, however, in the past left the children very much to the care of her hus band, and when some years ago she entered into an agreement for separation with him it was stipulated under that agreement that he should have tho custody of the children. They, however, came together again subsequently to tho agreement for separation. It is further suggested that she is given to gadding about and to neglecting her household duties. In deciding the question of tho custody of the children one must look, not only at tho state of things existing at present, but at the future. The two girls have ceased to be little children and are growing up into womanhood. A man cannot look after them properly. It is right that there should be some woman to whom they can talk and in whom they may confide and who will advise and direct then'.. If they are left with their father the woman who looks after them will be a housekeeper —a hired servant. Looking at the way in which servants come and go there would probably be a succession of housekeepers. In such circumstances where the mother is innocent of any matrimonial offence it is obvious that she is the natural person to take charge of her female children, unless it is shown conclusively that she is for other reasons unfit to take charge of them. That has not been shown here, As to the boy it is different. His father is very much attached to him, and he to hia father. As growing girls want a woman to look after them, so growing boys ari hatter in charge of a man. There is nothing to show that there has been a continuance of immorality on the part of the respondent, nor to suergest that the fact of his previous fault will affect the morals of the boy. The remarks of Lord Selborne in Symington v. Symington (L.R. 2 So. ad Div. 415), where the facts are almost identical with these in tk* present case, and where the custoclv of the girls was given to the mother and of tho boys to the father, apply here. Lord Selborne there said.

" Looking- at the moral interest of thesa boys, I am not satisfied that it will be compromised by leaving them In the care of, their natural and legal guardian, and on whom their material interest must mainly depend." The custody of the two girl* will therefore be given to the petitioner, and of the boy to the respondent. Thero must be the fullest provision for aoce3s to the- children both for the petitioner and the respondent. The case is a painful ono, but in cases of the kind the interests of the children are paramount, and I am satisfied that their interests will be best conserved by an order in the above terms. His Honor added that he had made jmi order as to maintenance, assuming that thj parties might agree as to that. If they did not agree the Court would make aa ' order. . The husband would be ordered to pay the costs. CRIMINAL SITTING, Tuesday, Decembeb 19. '•(Before his Honor Mr Justice Williams.) theft. ■ John Sullivan was brought before his Honor for sentence on a charge of the theft of a cashbox containing money and valuables, totalling in value £7O, from Tattersail's Hotel, Dunedin.—The prisoner had nothing to say, but handed in a written statement. Mr Macassey, who represented the Crown, said prisoner was a native of New Zealand, and was 33 years of age, and had latterly been living for the most part in Canterbury. He, however, had no'fixed place of abode, but followed up race meetings, and vyas what was known as a " guesser." Ha had' been previously convicted of stealing from hotel bedrooms at Palmerston North this year, and had been sentenced to six months' imprisonment, the offenoe being similar in character to the present one. Two months ago he had been similarly charged at Ashburton, and had been convicted and. discharged. His Honor sentenced' Sullivan to a term of imprisonment for reformative purpose* not to exceed two years.. ■ ■ _ ■ \ IN CHAMBERS. Probate was granted of the wills of ths following . deceased persons:—Elizabeth Harvey, Harriet Elizabeth Pearce, William Renton, Margaret M'Latchia, Mary Patrick, and James Taylor Mackerras. _ Letters of administration were granted in the estate of James Robertson (deceased). In re Charles Gillespie.—Petition for leave to carry on business (Mr Bedford). —Order made conditionally on consent of Publio Trußtee being filed. In re Joseph Young (deceased). —Petition for leave to sell land (Mr Stephens).— Order in terms of prayer. Turner v. Turner.—Motion for direction! as to personal service (Mr Woodihouse). — Order as moved. M'Glashan v. M'Glashan. —Summons for withdrawal of petition (Mr Woodhouse).— Accordingly. In re Thomas Keenan (deceased). — Petition for directions (Mr Cooke).—Share of Michael Keenan to be paid into court; costs of petition and of inquiries to be paid out of Michael Keenan's share. In re George Thomson (deceased).— Motion to confirm registrar's report (Mr Webb). —Report confirmed; remuneration accordingly. Edmond v. Edmond. —Motion to confirm, registrar's report (Mr Steohens).—Accordingly. In re Maurice Joel (deceased). —Motion to confirm registrar's report (Mr Ramsay).— Report confirmed; remuneration accordingly. Order to be served on beneficiaries in Now Zealand, and to contain a provision giving liberty to apply to vary within one month after service. In re William Jack (deceased). —Motion for remuneration of trustees (Mr Calkin).—« Referred to registrar. IN BANCO. Emery v. Spencer.—Motion for injunot tion (Mr J. MacGregor).—lnjunction granted by consent. In re Henry Jeffs' (deceased). —Brown v. Jeffs and others.—Originating summons for interpretation of will (Mr Stephens for plaintiff and two of the defendants, Mr Wm. C. MacGregor for G. Robertson, one of the defendants, and Mr W. D. Stewart for the remaining defendants). —His Honor reserved his decision.