LAW REPORTS.

Dominion, Volume 3, Issue 892, 11 August 1910, Page 3

LAW REPORTS.

' SUPREME COURT. FAMILY PROTECTION ACT. A NEW POINT. " A caso which was described as the first .of its kind came before-the Chief Justice (Sir Eobert Stout) in Banco yester-' clay. . , ' The late Lawrence Arthur Eobert Nortbington, insurance agent, of Bulls, who was killed in a motor-car accident near that place in October, 1908, left a will bequeathing, after payment of debts and expenses, £W0 each to his two illegitimate i-bildren, and the remainder of his estate to his widow, Caroline Northington. Four children of the marriage are living. The testator's whole estate consisted of an insurance policy on his own lifo for ,£SOO. The widow applied to tho Court to vary the will in favour of herself and her children, io as to giro the whole of tho money to them. Mr. P. Levi appeared for the applicants and Mr. P. G. Bolton opposed it on. behalf of the illegitimate children. ... His Honour (in reply to Mr. Levi's opening): I can't deprive the illegitimate children of their share. • How. can I? There'is a moral duty to provide for them." 1., have" no power, to give them anything,: but I. can't; take away.,what their'-father lias given 'them. Couldn't they come'to the executors under the Destitute Persons Actp ' Mr. -Levi, quoted the Destitute Persons Act, Section' 11, Sub-Section 4, to show that tho granting of an order in such a caso was a matter for the discretion of tho magistrate.. .His Honour: Well, perhaps they can't recover, but.the statute recognises a legal liability. I.can't re-form this- man's will. Ho. has chosen to leave money to children of whom he is the father.. How can I deprive thcm of it? Are they to starve? ' Mr; Levi: Are the legitimate.children •to starve?-.. , His Honour: You should have shown that the illegitimate children had other mean's of support; or that the legitimate children had no other persons to whura they could look fur help. But you have not done cither of these things. You rely instead on the contention that tho'legitimate bo' provided for before- tho illegitimate. ' Have you any authority for that? Mr. Levi: Tho Family Protection Act is for the benefit •of legitimate' children only. ...-..,...' ' His Honour: That is'so, but can you show mo how I can take away the money from these others? If he had given them more than was necessary, I could take away some of it, and give it to the legitimate children. I don't think the law ever meant that.l,was to take away from two illegitimate children tho little money they have for their support. How can I say that these children are to bo cast on the State, when their father has provided foi them. ' i'ou have no. authority to quote, t ''''■"..•■; ' '• Mr. Levi: There could be no authority, except under the Family Protection Act. . : His. Honour: Just so; and there ••■ has' never been another case like this in Aew-Zealand. I quite agree'that tho Act only . contemplates provision for legitimate children, though our law goes further than the English law.- Wo proposed •to go;still'further in another' Act, which, the Home authorities disallowed. - It was based on ; New York legislation. 1 remember it well, .because I introduced it ' myself. I have 'looked carefully over this case, and I don't see that I can do anything. If. you like I will■ consider'.it I further, .but'at-present, I don't thinkyou lure'oiode out a case for the interference of.the Court. His Honour'further remarked that the father, might have thought that the ille-. gitimato children needed more supports because they might'have no friends. His Honour did not think he need hear Mr. Bolton. ■ " , . Mr. Bolton said he thought it proper to mention that there was a third illegitimate child-born since the testator' 3 death, and not provided for in tho will, in respect of. this child,;a remedy could bo sought under the Destitute Persons' Act against the estate. ' ; His Honour said bo would take time to further, consider the case,, and'if, ho desired to .hear' counsel, he would let them know. , v A WIFE'S DEBTS. ./'.APPEAL.ITJOM LOWER COURT. Questions relating to the liability of to pay debts contracted by .his wife were involved in the case of. Robert ! Williams y. Kirkcaldio and Stains, Ltd., which; was; argued before the Chief-Jus-tice (Sir. Robert Stout) .yesterday. ', Mr W H. Haselden, S.M., delivered at i Wellington on May 17, 1910, giving judgm« n I $ he " s P° ndc at and against the appellant for the sum of. ,£52 13s. Gd. for goods supplied by the respondent to tho wile ol the appellant. .htV« a ? ?trate, '- iß '' h is Judgment, had' stated that every married woman residing with her husband and having.' the goneral management of his house was presumed to-be his agent in all matters, connected with the'domestic economy ol he house and family. She was theretore clothed with an implied authority from her husband to give orders V for wearing apparel, provisions,'.- "and for the maintenance of herself • and family In.this case the wife and family, after residing iu Napier' for some time, came to Wellington, and occupied a house, the .husband remaining'in Napier, where, his business was. - There" was nothing to. .suggest that, thero was am- separation. Mrs. Williams, who ha'd been a customer of Eirkcaldie; and Stains- at Napier, began dealing at- their Wellington; shop. She appeared to have- told the plaintiffs that .her husband was in Napier, and the plaintiffs sent an . inquiry to their Napier firm, asking if Mr. Williams was,good for .£ls or ,£2o— not, whether he. would, pay his wife's account up to such an amouiit, but whether he was safe to be trusted with credit up to Mb or £>!]. The reply came back that he was to be so trusted, and Mrs. Williams went on' dealing with the firm.. The first two months' accounts were paid, and then the account ran on until it reached the sum sued for (.£7O 10s. 5d.). - It afterwurds turned out that tho relations between the hus,band and wife were strained, but to what extent his Worship could, not say. Williams,, in his evidence,' bad admitted that he' promised to pay his wife's account up to ,£SO, and he had paid-,£20 into court. Tho wife misbehaved while in Wellington, and. went away with a man, but when'this happened was not stated, 'and (here was nothing to .show that the firm knew anything about it. The plaintiff firm had agreed to reduce the account by certain articles now presumed to have been obtained by a person not a member of defendant's family. His Worship gave judgment for £fri 13s. 6(1., with costs iHB 4s. Against this judgment the defendant, Williams, appealed, on the ground that the judgment was wrong in law.and in tact, in that:—(l) The defendant was entitled to judgment' on. the evidence; (2) there wu;i no authority, .express or implied, given by defendant to his wife to bind his credit with the-firm; (3) tho iirm was aware of the separation of defendant and his wife, and that ample allowance had- been made bv him for her support;' (1) the defendant expressly limited his responsibility to ,£2o,' and that sum was paid into court; (5) the claim was either on ait alleged promise to answer for the debt of another (on which' alternative no writing sufficient to satisfy the Statute of Frauds had been proved), or upon an implied agency —which did not exist either in fact or in law. ' . The case on appeal was argued before the Chief Justice '. yesterday by Air. T. Young (for the appellant, Williams), and Mr'i'S. Kirkcaldie (for 1 , tho respondent, Kirkcaldie.and Stains, Ltd.). • Decision wna reserved.