A FAMILY TANGLE.

Star (Christchurch), Issue 16875, 27 October 1922, Page 8

A FAMILY TANGLE.

WIDOW’S CLAIM FOR MAINTENANCE. Whether a wife is able to contract herself out of her husband’s estate by means of a deed of separation entered irto between the parties was the novel point bis Honor Air Justice Chapman was called upon to decide at the Supreme Court to-day in a case under the Family Protection Act. The plaintiff was Annie Minna. Mary Gardiner, of Auckland, widow of John Gardiner, of Rakaia, farmer, who at the time of his death, on December 4, 1921. left an estate valued at approximately .£47,000. The defendants were William Boag. -lobn Doig and John Gardiner, all of Rakaia, farmers, who were the executors and trustees of the will of John Gardiner, deceased. Plaintiff, who was the third wife of tlio testator, applied for an order under the Family Protection Act making proper and adequate provision for her and heft -x"~2rhter. Ephemia- van Brunt, and hey son. Hugh Lugwig Gardiner, out of the estate of the testator, and for such further order as in the circumstances would appear to the Court to be just and proper, upon the grounds that- the testator died leaving a will disposing of his property without making adequate provision for tbe proper maintenance and support of plaintiff and her children Mr W. J. Sim appeared for the plaintiff. Annie Minna Mary Gardiner, and her son.. Hugh Lugwig Gardiner, and Mr R. H. Livingstone for Eupheina van Brunt. Mr G. Harper appeared for the trustees and executors o + the will who were defending the action; Air J. H. Upham appeared for Rose Sharp and Alary Annie Malcolm, children of the testator's first marriage, and Air C. S. Thomas for Ada Louissa Leversedge. Ethel YYilliams and John Gardner, chldren of the second marriage. 1 he novel point in the action was the effect on the plaintiff's application of a covenant contained in a deed of separation entered into between the plaintiff and the testator on August 3, 1904. The covenant was as follows: The said Annie Alary Gardiner covenants and agrees that in the event of the decease of tbe said John Gardiner she will take no steps, or do. or consent. or be a party directly or indirectly to any proceedings against his executors or administrators or against his estate or effects, to obtain any further or other sums from the said estate under the testator’s Family Maintenfince or any other Act or for the purpose of contesting any will or testamentary disposition made by him of his property or estate.” Mr Sim said that the testator, whose death occurred on December 4, 1921. at the age of seventy-seven years married the plaintiff Annie Minna Alary Gardiner in the year 1897, when she was a young woman of twenty-four and he was a man of fifty-four. The testator was a farmer residing near Rakaia and it was possible that at th© lime of bis marriage to the plaintiff he : was struggling, t-o make a living. He died leaving an estate valued at over £46.000. From that largo estate Airs Gardiner, who was frail in health a,nd v. as now over fifty years of age, re--1 ceived an income of only £IOO per year, which came to her not by the will but by the deed of separation entered into in 1904. when the parties separated by mutual consent. Since then the parties had lived apart, but it might appear from the evidence that would bo given that they intended to live together again. The estate, explained counsel, consisted mainly of realty, near Rakaia. \ The testator, continued Afr Sim, had ir anied three times. By the first marriage he had two daughters, Rose Sharp and Alary Annie .Malcolm. His second marriage, which t-ook place in 1886, was to his step-daughter, a daughter of his first wife who had married twice. The children by that marriage were Ada Louissa. Leversedge, Ethel Williams and John Gardiner. The third marriage took place in 1897 and the children of that marriage were Euphemia Van Brunt and Hugh Lugwig Gardiner, the boy having reached the age of twenty-one years on October 9. 1922. According t-o the will of the testator, the plaintiff and the children of the third marriage did not appear at a-ll as beneficiaries. The will ret up settled shares for all the children by the first and second marriages and for their children. Afr Sim explained the provisions of the deed of separation entered into between the parties in 1904, and stated that as regarded the covenant, it was probably tbe first time in tbe history c>f the Act tliat his Honor was called upon to decide the validity of such a covenant. His Honor; Are you seeking to set rside the deed of trust then entered into? Afr Sim : No. His Honor: Then you are seeking for an interpretation by extraneous evidence ? Air Sim replied that he thought, under the special circumstances which would be submitted, that bis Honor could exercise his discretion in interpreting the trust. The Court exercised its discretion in matters under the Destitute Persons Act. Under the terms of rhe deed of separation, Afr Bim said, tbe plaintiff received an income r.f £l2O per annum which lapsed when her daughter became twenty-one years of age. The income was revived when the son became twenty-one years of age on October 9 last and she would now receive £-100 a year. She had maintained her two ' children under great disabilities recard- ! ing her own health and the health of ; her daughter and of her son. Afr Sim i detailed the marri< rj life <>f the rdain- ! tiff and the testator, which be‘ sj.id ! uas wrv unharvrvc owing to the bos- ! tihf” of * be children hr testator’s form- i er mhvriecrec. to the plaintiff The ! nlsSr.rifP was a recruit in the SaWsUnn I Aimv .end w:;< doincr Salvation Army ! work ir Rake.i:. when she met John j Gardiner She became engaged t-o him and were' married a rear later ! when she w nnlv twentv-four years j of ago. Tb-‘ will provided that the net j shares of the testator’s children hv j former marri-v'-es should be as lows Toh a Or-rdiner £10.696: \-G T.-miHe (daughter!. £8175; Uthel TVilHams (dg.n"hter) £8175 ; Rose Shorn (daughter). AJa!colm (daughter) R 6300. (Proceeding.)