OUR SYDNEY LETTER.

Waikato Times, Volume XXXIV, Issue 2793, 7 June 1890, Page 6 (Supplement)

OUR SYDNEY LETTER.

(PKOM OUU OWN COKKKSI'ONDKNT.) Sydney , , May 27. Sosik important will eases huvo occupied the attentiou of the courts and the public recently, and should have tho effect of stimulating reflection, us to the lights and duties of tostators, whother in relation to the Stato or to their own family and dependents'. Tho iirst was the will of Mr David Berry. In hia lifetime Mr Berry was the owner of an enormous estate in the Shoalhavon district, granted at a time when, in tho shallow judgement of tho rulers of tho day, laud had no valuo at all. The Borry estate comprised a large slice of tho colony of Now South Wales. So vast was it that there is a staudiug joke told by way of a story to the following effect: —Me Berry had engaged a party of men to get timber, posts and rails, slabs or what not. Standing on the soa-coast and fully instructed that his operations must bo confined to the private property of his employer, the spokesman of tho party asked him how far they might go to get tho timber without trespassing ou Crown lands or on the property of other people. "Anywhere,

sir, anywhere,' , replied tho uncrowned king of the conntry, " anywhere between here and sundown. However, iu the uatural course of events Mr Berry left the earth, and loft that considerable portion of it comprised in his estates also bohind him. He was a very aged mau, 03 according to one account, and 102 according to another, but all his life ho had been a mau of great originality and force of character. Vast as was tho power which ho wielded, no complaint of injustice, extortion or oppression was ever heard from his dominions. Considering that he heid absoluto power of eviction and distraint over a whole country side, inhabited by some thousands of people, this speaks volumes, and Land Nationalises may well note the fact that under private ownership this enormous territory was far better and more wisely administered than it possibly could have been by Government-officials. However, to the will. His estate was J worth about a million and half of money, and he left it to a distant relative who, during his lifetime, had asssisted him in its management. The will was contested by the uoiirett of kin on the grounds that tho testator was not of sound mind. As a matter of fact the will was only exeouted a very short time before his death, at a moment when ho was so feeble from the effects of disease that he could not sign his name, being unable to hold the pen. The lawyers mustered in great force, so rich a corpus being a bonanza

t9 tho men of horse-hair. Quite a small army of w'tnesses were assembled and they proved conclusively enough not ouly (hat the testator svas in full possoseion of his intellectual faculties at the I time of his death, but that the will which he had oxecuted was nearly a duplicate of one which had bnen framed by his instructions some time previously. The Court found that the will was good, and what is more to the purpose that there were no valid grounds for contesting it Greatly to the surprise of th.> general public, who had expected that the whole of the costs would come out ->f the estate, the objector was adjudged to pay nearly tho wholo of the costs of both parties. The other side, however, consented to forego their costs provided thu defendant agreed to give them no moro trouble. Mr Berry, I may mention, was unmarried, and there appears to have been little violation of natural right iu his posthumous disposition of his property. It is a question, however, whether a man ie entitled to disiuherit his nearest of kin. It is a question, moreover, whether in the case of the landed property, which has grown into value with and on account of

tho growth of the colony, the State ought not to receive a much larger share of the unearned incremont than is represented by the amount of the probate duty. That unearned increment belongs to the people of New South Wales as honestly and as righteously as tho improvements, cattle and crops ou tho estato belong to the people who put them there. Tho one important internal fuuctiou of the State is to administer even-handed justice. But it is impossible that this function can be healthily or efficiently performed as long as the rights of the people in this regard aro persistently ignored. The other case, that of Brown v. M'Encroe, affords more scope for question in regard to the personal relations of the parties. Brown, a wealthy but aged man, marriKl a young wife. If the evidence can b« believed, sho gave him. considerably cause for suspicion. Some witnesses

declared that tho old man was persuaded of her infidelity, aud made no secret to bis moro intimate friends of hia conviction. However, ho took no steps to effect a separation during his lifetime, but after his death it was fouud that ho bad left his widow only a small cottage at fern and an annuity at tho rate of £2 a week, tho latter also boiug subject to certain very galling conditions. Mrs Brown's innocence, aud her devotion in nursing her senile s'.onsc through his many infirmities, were strongly affirmed by witnesses on the other side. Unfortunately, she could not be heard in her own behalf, as she died shortly after her husband, and the action was defended by her nearest of kin. The judge, however, decided in favour of the will, and, in delivering his judgment, he laid dowu a principle which brings into strong prominence the great gulf that has opened out between modern law and practical justice. He is reported to have said, " When once the Court is satisfied that a testator is of sound and disposing mind it will not take into consideration any injustice or cruelty that may be apparent. Injustice or cruelty is no "ground for setting aside the will of a capable testator." How living testators of tyrannical or vindictive proclivities would rejoice to read this dictum from the seat of justice. The law forbids them to exercise injustice or cruelty duriug their lifetime, but they can gloat over the unrestrained reve.nse which they will perpctrateat tlieir deatl). If Mr Brown, a man in the receipt of about £15,000 yearly, and living in an appropriate country residence, had disrated his wife, during her lifetime, ami had sent her away to tließeclfern cottage to live on £2 a week, the law could have been successfully invoked on her behalf. It would have compelled him either to prove the truth of the suspicions which he entertained regarding her fidelity, or to provide for her in a manner suitable to the station to which he had raised her. Can anyone of sound reason affirm that the obligation which rests upon every man to provide suitably for his own dissolves into thin air as soon as he sits down to make his will, or that it is for the public «oo(l that the law should deliberately and in set terms condone a

breach of the law. Although the man is gone, and cannot be reached by legal process, the estate remains, and can 'be reached, and can be made to discharge the obvious obligation which, as I aaid before, devolve 3 upon every man to provide for his own. Sooner or later, I look for a great reform in these matters. The spirit of the age is altogether in favour ot the recognition of those actual rights and duties which inhere in the possession of our common, humanity, aud it is against the stupid technicalities by which iu the name of law they are so often nullified and set aside. If the law has a raison d'etre (and I believe it has), it is as an apparatus for administering justice. Any portion of it that facilitate injustice ought to be promptly amended or swept away, The unfortunate accident to Sir Henry Parkes is the chief topic of interest in political circles. Friends and foes alike have vied with one another in expressions of sympathy and condolence, and the Opposition seem disposed to throw no obstacles in the way of the despatch of business. Still, parties are so evenly balanced, that the absonce of one man, especially when that man is Premier, and the moving spirit of the Governmentmust be severely felt, and may lead to all kinds of unforeseen complications. Sir Henry was thrown out of a cab owing to the horse bolting, and has broken, his leg just above the ankle, A young man, however

vigorous or healthy could not expect ta s?et about again :ifter a comminuted fracture of this kiud, under four or five wcuke, and Sir Henry, though hale and strong, ia a very old man. Still, hie general health is so good that a speedy recovery is hoped for. The Government have wisely decided to go on with the debate on the Federation proposals, in apite of the accident. They will'be badly handicapped by the absence of their leader, especially as he is the father of Federation as at present understood. But it is obviously wiser to strike while the iron is hot, than to allow public interest to die out, and then essay the almost impossible task of reviving it. Whether they succeed or not in discharging this portion of the task they have gallantly taken up, it seems almost inevitable that Sir Henry's accident will pave the way for the downfall of the Ministry. Commercially trade remains very quiet. A large business is necessarily being dons to supply the wants of over a million persons, But purchases are on a very limited scale, no one apparently, whether his purchases are on a wholesale or retail scale, caring to bny anything that he can do without. This, of course, speaks well for the prospects of future recovery. Capital must be saved before it can be spent, and that it is being saved our increasing bank deposits and export returns abundantly testify. But it makes matters very dull in the present. The " awaiting time" is proverbially the lougcst.