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Decisions of the Superior Courts of New South Wales, 1788-1899

Mills and Douglass v Robinson [1826] NSWSupC 25

succession - ejectment

Supreme Court of New South Wales

Stephen A.C.J.,[1 ] 24 April 1826

Source: Sydney Gazette, 3 June 1826


This was an action of ejectment brought by the lessors of the plaintiff to recover possession of a certain piece and parcel of land situate in Pitt-street, Sydney, belonging to the estate of James Kershaw, deceased, and sold by order of the Court for the benefit of the next of kin, the deceased having no legal representative in the Colony.  The property in dispute, it appeared, was taken possession of, on the death of Kershaw, by order of the Supreme court, according to the provisions of the Act of the 4th Geo. IV.[2 ]and sold by public auction, by the Registrar, G. G. Mills, Esq. when H. G. Donglass, Esq. became the purchaser.  The defendant, however, who sets up some equitable claim, disputed the plaintiff's right of possession, to recover which the present action was brought.

Mr. Rowe, on the part of the defendant, contended that nothing appeared before the Court to shew that G. G. Mills, Esq. was actually such an Officer as the Act required.  His commission should be produced, and should be under the Sign Manual.  Further, by the 13th clause of the Act it was provided that before the Court would empower the Registrar to take possession of the property of an intestate, the party next of kin should be duly cited, which in the present case had not been done.  But supposing that these necessary provisions had been complied with, still he contended, that the main requisite which the Court should have granted to the Registrar, had not been granted; namely, letters of administration.  The Registrar did not possess even general letters of administration, and it was therefore impossible that any legal estate could vest in him, as even when the property of an intestate was granted to a creditor, it was necessary that he should possess letters of administration.  Mr. Rowe also further contended, that under the words of the Act, the Judges of the Supreme Court had no power to sell the property of intestates.

His Honor was of opinion, that the particular clause in the Act of 4 Geo. IV, was framed expressly to meet a case like that before the Court, in order to protect the property of intestates not having representatives in the Colony.  The Act expressly gave the Judges of the Supreme Court, the "custody, controul, or disposal"[3 ]of such property, for the benefit of the next of kin.  It was contended, that these words did not authorize a sale of such property, but supposing a house going into disrepair, or becoming dilapidated, was it to be contended that the Court were bound to take the trouble upon itself of looking after it, and preserving it in a fit and habitable state?  Was it not therefore more reasonable to suppose that the Legislature intended to give the Court the power to sell such property to the best advantage for the benefit of the next representative to prevent it lying in a state of waste, and becoming worse and worse?  It was obvious, therefore, that the clause in he Act gave equal power to sell, as to hold possession of the effects of the deceased, and as the subject of the present action was a leasehold property, it was to all intents and purposes a part of such effects.  With regard to the objection, that the Registrar was not the Officer contemplated by the Act, the Act itself gave a power to the Court to appoint the Registrar, or any other Ministerial Officer of the Court, to take possession of the effects of intestates, therefore it was clear an Officer might be appointed for this particular Act, who would be to all intents and purposes, a Ministerial Officer of the Court.  The Assessors, under the direction of His Honor, returned a verdict for the plaintiff, with one shilling damages.



[1 ]Forbes C.J. was on sick leave from 23 February 1826 until 29 May 1826; John Stephen was Acting Chief Justice in this period: see Australian, 23 February and 3 June 1826.

[2 ]The reference is to s. 10 of (1823) 4 Geo. 4, c. 96, which constituted the Supreme Court of New South Wales as a Court of Ecclesiastical Jurisdiction.  When executors or the next of kin were unable or unwilling to administer a deceased estate, s. 10 empowered the judges of the Court to appoint the Registrar or other officer of the Court to do so.  See also In the estate of Pugh, June 1826.

[3 ] These are the concluding words of (1823) 4 Geo. 4 c. 96, s. 10.



Published by the Division of Law, Macquarie University