INVOLVED WILL CASE

Sun (Auckland), Volume IV, Issue 931, 26 March 1930, Page 11

INVOLVED WILL CASE

COURT OF APPEAL HEARS DISPUTE HAMUA FARMER’S ESTATE Press Association WELLINGTON, Today. The Court of Appeal is today engaged in hearing the appeal in the case ol Esther Johanson, of Shannon, a married woman, against John Thomas Cavanagh, of Mangahao, labourer; Henry Cavanagh, of Wallaceville, sawmill hand; William Cavanagh, of Hamua, dairy farmer; and Lucy Henrietta Sedcole, of Hamua, married woman, first respondents, and John Wolland, of Hamua, second respondent. John Cavanagh, late of Hamua, farmer, died in January, 1911, leaving a will dated November 25, 1910. The effect of the will was that the testator gave the whole of his property upon trust, to pay an income to his wife and his then-unmarried daughter Esther in equal shares during the wife's lifetime, and until the marriage or death of Esther. Upon the death or marriage of Esther, the wife was to receive the whole income during life, upon the death of the wife the trustees to invest £3,000, and pay the income to Esther during life, and after death to hold the corpus for such persons as she may appoint, and in default of the appointment for* such persons as would have taken had the same been the absolute property of Esther. After making provision for the payment of £25 to Esther per annum after the expiration of a period of five years from the death of the wife, such payments to be charged against the legacy of £ 3,000, the testator directed the trustees to hold the remainder of the estate in trust for his sons. C. E. Cavanagh and R. K. J. Cavanagh, in equal shares. Probate of the will was granted on February 25, 1911. The present net value of the estate is approximately £3,739 12s. The testator left surviving his widow, Lucy Annie Cavanagh, and about 11 adult children. The widow died on July 16, 1928.

The first respondents in this case are four of these children of deceased, and in August last year they brought an application under the Family Protection Act for provision out of the estate, claiming that Cavanagh had not made adequate provision for their maintenance. The second respondent is the executor of the estate. At the hearing on August 8, 1929, 2dr. Justice Smith made an order allowing to each of these four children a sum of £1,250 to be paid out of the sum of £3,000 directed to be set aside for Mrs. Johanson. Appellant now appeals from this judgment. For the appellant, Mr. Cooper appears, and for the respondent, Air. F. H. Smith. On the Bench are the Chief Justice, Sir Michael Myers, Mr. Justice Herdman, Air. Justice Blair, and Air. Justice Kennedy. Counsel for the appellant said the proceedings were first begun in 1912, but they were not brought before the court till August, 1929. During the intervening period, respondents did not deem it necessary to apply to the court, for assistance. The question of law involved was whether the Act really entitled the court to go behind the testator’s own judgment. Mr. Smith, for the respondents, said ,iis clients had a considerable claim on the estate of their father. They worked for him for years without wages, and had been promised by him remuneration under the will. To takt< £I.OOO from £3.000 left Airs. Johansen more than sufficient to reward her for her services. Despite the delay of a number of years in prosecuting the suit, he submitted that he was still able to show that at the time of tho death of the testator the respondents were entitled to provisions out of the estate. The court reserved its decision.