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

Baxter and wife v. Piper, Campbell and Walker [1832] NSWSupC 83

succession, interpretation of will

Supreme Court of New South Wales

In Equity, Forbes C.J., 5 November 1832

Source: Sydney Herald, 8 November 1832[1]

 

Baxter and Wife v. Piper, Campbell and Walker, Executors of Andrew Frazier. - This case was one of rather a novel character - Andrew Frazier died in this Colony leaving considerable freehold estates in the town Sydney and in various parts of the Colony.  On the 25th of March, 1825 he made a will, when after leaving one shilling to his wife he bequeathed £500 to his brother John Frazier, of Montrose, North Britain; £500 to another brother, William Frazier, of Liverpool; and £500 to the Provost of the Royal Borough of Montrose, in trust to invest in public securities, and that the interest of the money should be appropriated to the purchase of oatmeal every year, and be distributed among the poor of the Borough, on 26th February in every such year; after that all the rest of his estates real and personal should be sold, and after paying the above legacies, the residue was to be paid over to Mary Baxter by her, then name of Mary Jones.  Frazier died in 1827.  The question now for the decision of the Court was this.  Frazier before his death sent by Mr. Walker to the Provost of Montrose £500; was this in lieu of the £500 bequeathed in the will;  The bill in answer admitted the £500 had been sent to the Provost after the execution of the will, but whether instead of the bequest, or for what object, defendants were unable to answer or set forth.  The evidence of two witnesses had been taken before the master, that of William Wilson and Mrs. Elizabeth Walker.  The former stated that he was clerk to the testator, who was an illiterate man, and could neither read or write; witness kept his books and was well acquainted with his affairs; testator  has frequently informed him that he had sent home £500 to the Provost for the poor; he thought he might live for many years, he therefore sent it as it would be important to the poor; he had left his brothers legacies but they must wait till his death.  The evidence of Mrs. Elizabeth Walker was to this effect. - That about a fortnight before Mr. Walker went to England, Frazier came to their house to complete the advance of the £500 for the poor of Montrose; some person present observed he was very liberal, to which he replied, at his death he would leave £500 more, or words to that effect.

Mr. Wentworth now contended, that under the authority of Maddox's Chancery practice 93. it was a prescription of law that where a legacy was left and the money paid before the death of the legator, it was a redemption of the legacy.  From the evidence of Mrs. Walker it was clear, that saying after the execution of the will, it was his intention to leave £500 more, he had not then bequeathed it, no doubt considering that the £500 sent home by Mr. Walker, as the legacy mentioned in the will.

Mr. Norton on the other side observed, that the Court could not determine the case on the evidence but rather on the matter contained in the bill in answer.  It appeared the will was made in 1825; Mr. Walker left Sydney in 1826, and the testator died on the 3rd of January, 1827, being eight months after Mr. Walker left the Colony, it would naturally occur to every one that an alteration would have taken place in the will had such been the testator's intention.  His saying he would leave £500 more might easily be supposed to mean that he had left £500 more.  He was sure the Court would not annul the bequest on a mere fugitive assertion.

The Court would defer judgment to a future day.

 

 

In equity, Forbes C.J., Stephen and Dowling JJ, 17 November 1832

Source: Sydney Herald, 22 November 1832

 

Baxter and wife v. Walker, Piper, and others, executors of Alexander Frazier. - The Court, in this case, were of opinion, that the gift of the testator of the £500 to the Provost of Montrose, in trust for the poor of that Borough, was intended as a redemption of the legacy, therefore, the decree must be for the complaintant in the terms prayed for.

 

 

Dowling, Proceedings of the Supreme Court, Vol. 78, Archives Office of New South Wales, 2/3261

 

[p. 201] This was a suit in Equity to determine whether a legacy of 500£ bequeathed to the Provost & Burgh of Montrose for the relief of the poor by the testator Alexander Frazer had been adeemed in his life time.  The testator by his will dated in March 1825 bequeathed the legacy [p. 202] in question.  He died in January 1827.  In the month of May 1826 he transmitted the sum of 500£ to the hands of the Provost of Montrose, by Mr. Walker one of the executors named in his will, as was contended in lieu of the legacy named in his will.  He died without revoking or altering his will.  The question was whether the Sum of 500£ so transmitted was an adumption of the legacy.  The case was heard upon evidence before Forbes C.J. & after conferring with the other Judges, the Court now determined that the legacy was adeemed.

See the C.J.'s notes of the Case.

3 Atkins 153.  1 Cox. 51.  1 Atkins 427.  2 Bro. C.C. 317.  1 Ball & B. 298.

Notes

[1 ] See also Australian, 9 November 1832.

Published by the Division of Law, Macquarie University