SUPREME COURT.

Otago Witness, Issue 3117, 10 December 1913, Page 48

SUPREME COURT.

IN DIVORCE. Thursday, December 4. (Before his Honor Mr Justice Williams.) MALLETT V. MALI,EXT. This was a petition by Mary Melville Mallett for a dissolution ol her marriage with Francis Mallett, farm labourer, on the ground of desertion. Mr Hanlon, who appeared in support of the petition (there was no appearance on the other side), said the parties wore married at Pleasant Point, Canterbury, on June 14, 1685, and resided at Albury for some 11 years, and it was there that six of the family were born. During practically the whole of their married life the husband had been very much addicted to gambling. Ho stayed away from his homo, and spent his time and money in billiard saloons. His conduct was so bad during the whole of these 11 years that his wife spent a most miserable existence with him. On one occasion at the end of the 11 years ho stayed away for nine weeks. Then he returned, but his conduct was just as bad, and they had frequent quarrels, after one of which they arranged to separate under an agreement; but the agrcc- • n.iu only lasted for about a month or six weeks, when the husband returned to the house. He continued to return from 1895 to 1900, when finally another child was born. Although he did not live with his wife from 1900, lie continued to make periodical payments of the maintenance up to 1905. Then he knocked of! paying, and the wife traced him after considerable effort. She applied to the magistrate for orders for maintenance for the two young children. She got the orders, but the husband i>aid nothing, and had remained away, knocking about the country affd taking no interest in either his wife or family. When the divorce papers were served on the respondent ho consulted a solicitor at Tiinaru. The solicitor had now written stating that ho did not intend to defend the case. All the respondent hoped was that an order would be made against him for costs. Evidence was given by the petitioner and Josephine Maokay. His Honor granted a decree nisi, with costs, the petitioner to have the custody of the youngest child. IN CHAMBERS. Probate was granted in tins estates of the following deceased persons: —James Shiels, Annie Mellor, John Harland. Jeanct Taylor, William Osborne, Harry William Brundcll, John Cagney, John Caldwell, Peter Sherratt. Letters of administration were granted in the estates of Marguorita Adclma Mawhinney and Joseph Horc. In re Mary Annie Williams. —Petition for vesting order (Mr Lemon). — Order in terms of prayer. IN BANCO. In re James M'Lood Nicolson, of Dunedin, retired draughtsman—originating summons for the interpretation of a will. The summons was issued by the executors and trustees, and the interpretation asked was in regard to the share to be taken by one of the grandchildren of the deceased, whose father had died prior to the making of the will. The testator, after giving a legacy of £IOO to the grandson, whose father was then dead, bequeathed the balance of his property to all my children living at my death in equal shares.” Then followed a clause declaring “ that if any child of mine shall die in my lifetime leaving a child or children who shall survive me and attain the age of 21 years, then such mentioned child or children shall rake equally among them the share that their parent would have taken had he or she survived me.” r l ho question was whether the words “ shall die in my lifetime” were to be read literally so as to exclude the grandson whoso father was, dead at the date of the will, or whether they were to bo read as meaning “shall <1 io or shall have died,” so as to take in the said grandchild. Mr A. 8. Adams and Mr A. C. Hanlon appeared for the grandson; Mr 8. Solomon, K.C.. and Mr H. Brasch for the children; and Mr W. Downie Stewart for the trustees. His Honor remarked that the question involved was a very neat one, and such as might go direct to the Court of Appeal. Sir Solomon expressed his readiness to fall in with that counsel, if it was the desire of the infant. Mr Adams expressed a desire to have his honor’s opinion on the question, and the case proceeded. Mr Stewart stated that the deceased made his will on March 27 of this year, and died on July 14. Ho had 10 children, one of whom, David, was dead at the date of the will; and he left one child. The value of the estate was £II,OOO odd, and If the grandchild was allowed to participate the share of each would he about £llOO, and if ho was not allowed to participate the share of each of the children would bo a little over £l2o'). After considerable argument by Mr Solomon and Mr Adams, his Honor reserved his decision.