A FAMILY QUARREL

Poverty Bay Herald, Volume LV, Issue 17503, 27 February 1931, Page 8

A FAMILY QUARREL

DAUGHTERS DISSATISFIED FURTHER PROVISIONS SOUGHT I JUDGE DISMISSES MOTIONS Giving it as his opinion that the applications arose 'solely out of a family quarrel, and that otherwise they would never have been made, Mr. Justice MacGregor, in the Supreme Court to-day, dismissed the originating summons under the Family Protection Act of Elsie May Carnegie and Annie Frances Lentell for further provision out of the estate of' their late father, Robert Hepburn, a farmer, of Mauutiilco. His 'Honor dismissed also a motion for an extension of time in which to take proceedings. The ease was part-heard in tho Supreme Court yesterday and was concluded to-day. Mr. L. T. Barnard appeared for the plaintiffs, and Mr. ,T. W. Blnthwayt for the. Public Trustee, who was cited as the defendant.

Mr. Blathwayt explained that when he stated that the third daughter did not. require provision from the estate he did not -mean to imply that she was in good circumstances. Robert Kenneth Hepburn, 2(>, who substantially fought the case, though not technically the defendant, was cross-examined by Mr. Burnard. Ho contended that his work rather than his sister’s that put his late father in the position in which he stood at tho time of his death. There was no grudge or animosity existing on either side, he said. Ever since he was a small boy he understood that the property was to bo left to him. His father had been ill for some years, and during the last six months the Carnegies came to stay with them. For three months witness was away on holiday, but Carnegie was paid for what he did during that time. For some years Mr and Mrs Carnegie resided with his mother, and Carnegie carried on tho farm under an agreement with her. Mrs Graham went there to live also, and remained for less than three months. His mother terminated the arrangement with Carnegie, and then for some months negotiations went on iu an endeavor to settle what ho was to receive. Finally, witness made out a list of what Carnegie was to receive, but his mother was not prepared to take that list as a settlement, and Carnegie wont to court and obtained judgment for part of the amount he claimed. Mrs Jane Elizabeth Hepburn, widow of the late Robert Hepburn, crossexamined by Mr. Burnard, stated that she had understood that the girls were to receive £IOO each out of the estate and tho son the farm. Carnegie had been in the habit of using language to which she took exception. "Rows” .arose, and witness gave the Carnegics a month’s notice to go.

Mr. Burnard said the will was somewhat peculiarly drawn, and he referred at some length to the terms of flic will. He submitted that there was no proof that the assets of the estate had been got in.

His Honor said the case had been ; very fully and ably argued on both j sides, and ho was thus enabled to arrive at a conclusion. There were ' two applications, one an originating , summons for further provision, coupled f . with a motion for extension of .time. The summons was taken out by the two elder daughters of the deceased testator, and the question was whether r the time in which to make the ap- } plication should be extended. Parties j were given 12 months in which to • make a claim and-if they should not j make the claim within that time they \ were taking a grave "risk. The princi- j pie was that where there was long delay extension of time was granted . only if there was manifest hardship. The testator made provision for his . wife and family, and in October, , 1023, died without altering that will. After the funeral a family meeting was held, at which the will was read, and all members of the family, including the two plaintiffs, 'signified that they were satisfied with its terms. His Honor was satisfied that at that time all the parties, including the plain- , tiffs, were aware of the main terms j of the will, and in particular knew that the brother was to get the farm.) That was tho bone of contention now. The plaintiffs and the others remained or. good terms until some time in , 1930, without any suggestion being made that the will was unfair. A quarrel took place between Carnegie and Mrs Hepburn and tho feud resulted in the two plaintiffs boing on one side and the other members of tho i family on the other. Tho third daugh- j ter did not support the application. It' was plain from the evidence that j Carnegie was the first person to take; action, and curiously enough it was not until his case was brought that there was any whisper of dissatisfaction with tho will. Apparently up until then they were satisfied with their share. The present proceedings were the direct outcome of the family quarrel, and would not have been brought otherwise. His Honor saw no reason, therefore, to grant the applications on tho following grounds: Tho long delay of seven years in making the application; the fact that the delay had not been satisfactorily cx- , plained,,and he could not see that refusal of an .extension of time would result in manifest hardship to the plaintiffs. It appeared that the will did make j adequate provision for the widow, daughters, and son, and it appeared to His Honor that as -the estate had been carried on without any objection and as its condition had materially altered in tho seven years, tho result would be manifest injustice if it were disturbed. To grant the applications seemed to Ills Honor to be making a new will for tho testator. The present motion and summons would be dismissed, with costs fo the defendant.