SUPREME COURT.

Star (Christchurch), Issue 12754, 25 September 1919, Page 3

SUPREME COURT.

$ IN BANCO. His Honor Mr Justice Herdman presided at a sitting of the Supreme Court in banco to-day. QUESTION OF GUARDIANS. In the matter of tho Infants Act, 1908, Gwendoline Betty Holmes and Graham Holmes, by their guardian ad litem, Louisa Holmes, of Holmslea, Rakaia, widow, made application for the removal of th© following guardians: Gliarles Edmund Jennings, of Ashburton, accountant; Emmeline Snodgrass, of Tauranga, widow; and Charles Stewart Thomas, of Christchurch, solicitor: the ground being that the present guardians represented, only the maternal side. It was proposed to substitute paternal guardians or to seek a fresh arrangement so that the Holmes family may he represented in th© guardians Mr Beswick appeared on behalf 01 the plaintiffs, and Mr Alpers represented the defendants. Mr Beswic.k said that th© application was made under section 7 of the Infants Act, which gave power to the Court to remove guardians if it were shown to he in the interests of the children to do so. The evidence was all by affidavit and fairly voluminous. Briefly, the facts were that Gordon Holmes, grandfather of tho infants, died on November 12. 1902. He left considerable estate and under his will his son, Alexander Holmes, the father of the children concerned, took a life interest in the properties Holmslea and Summerton. in the Rakaia district. The properties were valued for probate purposes at £90,000, and had since become much more valuable. These were the properties which the two infants would inherit when they became of age. Under the grandfather’s will two-thirds of th© property value was to go to the son and one-third to the daughter, the infants being Gwendoline, aged eleven years, and Alexander, aged eight years. The grandmother, who was alive, was tho applicant. The aunts of the infants and other older children of the family lived on the properties. The grandfather left properties which were willed to the other children. 1 Airs Holmes, the grandmother, was entitled to an income and life residence at Holmslea. The Holmes family was an old Canterbury family and the name was well known in connection with the construction of the Lyttelton tunnel. The father of the infants died on February 14, 1912. The widow subsequently married Douglas Charles Thomas, a brother of Charles S. Thomas, one of the defendants, and there were three children by the marriage. Mrs Thomas (mother of the Holmes infants) died on November 16, 1918. Under her will the present defendants were left as guardians. The guardians contained no representative of the Holmes family. Mr C. S. Thomas was not related to the first children of the family, though he was to the second. Air Jennings was an uncle of Air Thomas. The present guardians had been acting only since the death of the mother last November. The grandmother, Airs Louisa Holmes (applicant) took proceedings believing that she was in danger of losing touch with tho children. The matter was one into which sentiment entered. It was proposed by the guardians that the two children should be sent to live with their half-brothers and sisters at Tanranga, and, of course, with their stepfather. It was contended by applicant that the children should remain in tho atmosphere and surroundings in which they had been brought up and on the property which they would ultimately inherit. Plaintiff contended that it was in the interests of the. infants that they should remain under the control of the Holmes family than under that of strangers. Air Beswick touched on other points and read extracts from affidavits. That from the evidence of th© Hon C. A. C. Hardy, AI.L.C., a life-long friend of tho Holmes family, and executor under tho will of David Gordon Holmes, was to the effect that he had known both Airs Holmes (tho grandmother) and Air Charles Buchanan (son-in-law), proposed guardians, and had no hesitation in saying that they would make good guardians. He knew also that the relations at Holmslea were well qualified to rare for the infants and that Holmslea itself was a true home. The whole question, said Air Beswick. was whether the two children should live at Rakaia or Tauranga. and whether the Holmes family should not be represented, cither by tho removal of the defendants or by the appointment of a representative of tho Holmes family. His Honor: The difficulty so far as 1 am concerned is tha tthe guardians (defendants) were evidently appointed by tho mother, the mother having the greatest interest in her children and having their welfare fully before her. 'Hi© mother would naturally consider the interests of her children above all other interests. The position was not in any way affected owing to the fact that she became tho wife of Charles Thomas's brotherAfr Beswick : It was probably not in Mrs Thomas’s mind at the time, or tho mind of any of the parties concerned, that a proposal would be made to remove the two children from Holmslea and their grandmother to Tauranga. His Honor: It seems a pity to remove the children from the influence of their home, where they will live in the future, and from the atmosphere of their upbringing. Mr Beswick ; That is my point. The welfare of tho children is the first consideration. Mr Alpers said that tho proposal was that, the children should be sent to a leading boarding school and that at least one of the vacational periods should be spent at Holmslea. The mother’s wish in regard to guardians could not he displaced, especially in view of the undisputed bona fidos of all parties concerned, it being admitted that all were closely interested in the welfare of the two children. After argument his Honor said that counsel would recognise from his remarks that he realised it was impossible for him to interfere. 7'he mother of the infants had appointed the guardians and it must he considered that she did so in their welfare. Before he could make a removal some grounds must be shown. There had been no charge of misconduct. The duties of all parties had been shown to be satisfactory. In view- of the facts as placed before him his Honor could not interfere. The summons ivonld be refused. Costs, to be taxed bv the Registrar, wore ordered to bo charged against the estate.