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

In re Fowler, deceased (1828) Sel Cas (Dowling) 964; [1828] NSWSupC 25

succession, interpretation of will, succession, contempt by executrix

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 1 May 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 80]

[Thursday 1st May]

[In the matter of Sophia M. Fowler deceased.]

Present, Forbes C.J., Stephen J. & Dowling J.

This being the first day of the second Criminal Sessions, the Judges assembled at ten o'Clock and proceeded to business, after which we all visited the gaol.

Wentworth moved that letters of administration be granted to William Browne, under the following circumstances: The testatrix had made a will, reciting in a singular manner that she was apprehensive of being assassinated, and then devised certain part of her cattle and stock to such person as should bring her murderer to justice in the event of her fears being realized, and then devised other cattle and stock to Elizabeth Catharine Fosse, a young girl aged 16 then living with her as her adopted daughter.  Testatrix died a natural death, and upon application to this court it was referred to Mr. [p. 81] Wills, the late Registrar to collect in her estate and effects, her natural daughter being then an infant under the age of 21.  The Registrar collected in the effects, since then Eliz: Cath: Forsse had married William Browne, and now it was moved that to him letters of administration be granted, on the ground that his wife, being a primary as well as a residuary legatee under the will, and the contingency of the testatrix dying by the hands of a murderer, not having happened the whole of the testatrix's property vested in Mrs. Browne, and by law therefore in her husband.

By the Court.-

We can give no opinion at present as to the construction of what is suggested to be the residuary clause in the testatrix's will; but we see no objection to the granting of letters of administration with the will annexed to William Browne, and at the same time to direct that the Registrar or other ministerial officer of the Court have authority to [p. 82] interpose for the purpose of protecting the interests of the next of kin, if there be any in existence.  There must go at present a citation to all persons who may be interested in the estate of the testatrix, to shew cause why administration with the will annexed should not be granted to William Browne.  There may be a question hereafter raised as to the construction, and effect of that part of the will under which it is said that the residue of the estate goes to Eliz: Cath: Fosse, the now wife ofWilliam Browne.

See notes Vol.3.p.11.[1 ]

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[p. 82]

[Saturday 7th June]

[In the matter of Sophia M. Fowler deceased.]

Before a full Court.

Wentworth, moved an affidavit that the next of kin of the deceased had been duly cited, that administration be granted with her will annexed to William Browne, under the [p. 83] circumstances stated in the last term.

The Court adverting to what was said on the former occasion and to the 4. G. 4. C. 96. s.10.[2 ] ordered:-

That letters of administration be granted with the will annexed to William Browne, and that the proper ministerial officer of the Court, shall have authority to interpose, for the purpose of protecting the interests of the next of kin, in such way as he may be advised.[3 ]

see notes Vol.4. p. 134.[4 ]

Notes

[1 ] This reference is to the full collection of 248 notebooks of Dowling J.  They are collected in the Archives Office of New South Wales as "Proceedings of the Supreme Court of New South Wales 1828-40", reference 2/3184-396, 2/3400-33.  In this part of the case, the records in theSelect Cases are a duplicate of those at Vol. 3, 2/3186 pp 11-13, with only minor grammatical differences between the two.

[2 ] Section 10 of the New South Wales Act granted ecclesiastical jurisdiction to the Supreme Court.

[3 ] There were risks in being appointed legal personal representative of a deceased estate.  In 1828, Mary Kelly was imprisoned for contempt when she failed to provide accounts concerning her husband's estate, to which she had been appointed executrix.  Later, she was released from prison when she supplied the accounts: In re Kelly, 15 August 1828, Dowling,Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, p. 317.

In another, anonymous, case, a widow was removed from the administration of the estate of  her intestate deceased husband on the ground that she "was incapable of managing the trust reposed in her ".  Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, p. 6.

[4 ] This reference is to the full collection of 248 notebooks of Dowling J.  They are collected in the Archives Office of New South Wales as "Proceedings of the Supreme Court of New South Wales 1828-40", reference 2/3184-396, 2/3400-33.  In this part of the case, the records in theSelect Cases are a copy of those at Vol. 4, 2/3187 pp 134-135.

Published by the Division of Law, Macquarie University