VALIDITY OF A MARRIAGE

Press, Volume LXXI, Issue 21412, 2 March 1935, Page 3

VALIDITY OF A MARRIAGE

* SUPREME COURT HEARING TRUST ESTABLISHED SIXTY , YEARS AGO (SPECIAL TO THE FRESS.I TIMARU, March 1. Judgment declaring that Isabelle Ellis Pattison, an Auckland spinster, was entitled to one-third share in a trust fund, now valued at £19,227, established by the late Captain Henry Cain, formerly of "Woodlands," Timaru, on February 26, 1870, was given by Mr Justice Johnston in the Supreme Court to-day. Miss Pattison based her claim to participate in the trust fund on the ground that she was a daughter of Jane Ellis Espie, a step-daughter of Captain Cain. Her mother, plaintiff contended, on the death of her first husband, William Johnson Newton, married Jonathan Melvin Pattison, whom plaintiff asserted was her father. The defendants were Miles Jefferson Knubley, solicitor, of Timaru, and Melville Jameson Gray, land agent, of Scotland, as trustees, and Harry William Espie Newton and Lewis Geoffrey Newton. The Newton brothers

were sons of Janp Ellis Espie by her first marriage to William Johnson Newton in 1874. • The Defence The defence was founded on an allegation that at the time Jane Ellis Newton married Jonathan Melvin Pattison on July 5, 1886, her husband, William Newton, was still living, that the second marriage was invalid, and that the plaintiff was illegitimate, and so not entitled to take under the deed of settlement of 1870, which related to legitimate children only. After traversing the evidence and the cases cited to him by counsel, his Honour says in his judgment: "Having found no evidence sufficient to convince me Newton was alive in July, 1886, I think, since I now presume him dead, and* as it is a legitimate inference that Mr„ Newton did not intend to commit bigamy, I should uphold the second marriage. There is no evidence before the court which shows Mrs Newton vas not justified in the conclusion she must have reached, if we assume her guiltless of any criminal intention, that her husband William Newton was then dead. She must have known, as well as others, of his attempts to commit suicide and it is quite likely she had reason to believe that those frustrated attempts would be repeated and succeed and that his disappearance was only consistent with that conclusion. Marriage Valid "In my opinion, therefore, the defence that the second marriage was invalid by reason of the - continued existence of William Newton at the time it was contracted, fails, and plaintiff is entitled to a declaration that she is entitled to a one-third share in the settled fund of February 26, 1870." Plaintiff was allowed costs as on a claim, for £6OOO. To the trustees 30 guineas and disbursements were allowed, those costs and the costs of plaintiff to be paid out of the shares of H. W. E. Newton and L. G. Newton.