SUPREME COURT

Dominion, Volume 9, Issue 2884, 23 September 1916, Page 13

SUPREME COURT

_ « ■ CURIOUS WILL CASE ARGUMENT UNDER FAMILY PROTECTION ACT i In the Supremo Court yesterday,- before Mr. Justice Chapman, nil action Drought by John Ray against John Moncrieff and anothor, under Section 33 of the Family Protection Act, presented 6omo peculiar features. Mr. A. W. Blair, with him Mr; Phillips, of Carterton, appeared for the plaintiff, aiftl Sir John Fandlay, K.C., with him Mr. Maunsell, of Carterton, for the' defence. In opening Uie case, Mr. Blair said that the plaintiff, John Ray, who was 44 years of age, was tho only surviving son of tho late Thomas Ray, his father, who. left a widow, now about 75 or 76 years of ago, and a daughter. In his will tho father loft property valued at £16,000 or £17,000, and after making provision for his widow, he loft his estate to be divided botween the daughter and the three sons of tho plaintiff on their roaohing the age of 25. Plaintiff was to get an allowance of about £50 a year out of tho estate after his mother s death; until that time he got nothing and was practically dopendont on others. "The plaintiff," observed Mr. Blair, "is a chronic drunkard, and that>was thc_reason, no doubt, why he was not provided for in the will." Referring'to the history of tho plaintiff, counsel stated that John R,ay was born in the Taratahi Hotel, which his father kept at tho time, and the father owned racehorses. Plaintiff and his elder brother, who was killed in 1884 in a racing accident, were brought up as jockoys. Tho conditions of liis lito at this period, it was claimed, led him into acquiring drinking habits. As a jockey tho necessity of "wastjng" to- ride at certain weights led him into drinking gin for tho purpose of promoting free sweating. His environment whilo working as a jockey for his father tended to impair his moral fibre, and tho father, in making-his will, should have taken into consideration the fact that his son had been brought up in 6uch a. way. and the father should have anticipated that matters would turnout as tboy had turned out. Right nvp to the time of his father's deatn, plaintiff had worked for him on a farm as a labourer, and had been almost totally dependent on what he had thus earned from his father. The question was one of maintenance. The father died a wealthy man, and had left tho plaintiff, a weakly man, totally unprovided for. His Honour: 1 cannot overlook the fact that as he grows older ho will ho receiving about a pound per. week, besides what he may' be capable of earning. Tho father appears to havo taken , this into consideration. _ _ • Mr. Blair', continuing, said the plaintiff was dopendent upon his father up to the time of tho latter's death, when ! the conditions changed completely. Tho drinking habits,of the plaintiff were not hereditary, as both his parents were very abstemious; his habits were acquired under the special circumstances of his environment, and tho question now was not that of curing him,bbu r providing him with maintenance.-- If meftns were provided for him to acquire a farm at some distance from a hotel, he could recover his moral fibre. His' Honour: If the Court- adds to i his income, would his family benefit? ' Mr. BJair: It would if tho Court imposed conditions, and the Court has that power 1 under Section 2 of tho Act. . Sir John Findlay, for.tho defence, characterised tho , application as an audacious one, and said it was unfair to suggest that the. plaintiff's career was ruined by the ■- conduct of ' tho parents. ; The father, had been greatly concernedjibout hie son,-and.did his best to so'arrango affairs that tho son would really benefit and not be encouraged in his drinking habits. It'i ■had been decided in tho Courts that what a testator had laid down should not be disturbed without clear evidence. Six months ago a certain offer was mado to plaintiff by his mother, which was declined. Tho plaintiff- wanted a weekly allowance. •_ To give this man money would bo quite a wrong thing," observed counsel. "I am satisfied that he is an able-bodied drunkard, and the only euro is to make hfm work, or offer hiui the alternative of starvation." An affidavit by tho mother i stated that the plaintiff was well ablo to work, provided ho abstained from drink: He was omitted from his father's will becauso of his intemperate habits. . „ His Honour reserved his decision.