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

Chisholm and Cooper v Kirby and wife [1832] NSWSupC 84

trusts - married women's legal disabilities - succession - Crown grant, breach of condition

Supreme Court of New South Wales

Forbes C.J., 5 November 1832

Source: Sydney Herald, 8 November 1832[1 ]


IN EQUITY. - (Monday.)

Before the Chief Justice. - James Chisholm and Thomas Cooper v. Kirkby and Wife - This was an application to the Court by Mr. Wentworth for a decree, to appoint A. B. Spark and John Lamb, Esqrs., trustees to a certain freehold property in Pitt-street, left by Elizabeth Archton, in trust to her daughter Eleanor Plowright, the wife of the defendant, but was not to be liable to the debts or controul of her husband; under the will the complainants were executors, and on the arrival of testator's daughter at 21 years of age or marriage before 21, then the property should be made over to her in trust, and at her death to the issue of such marriage.  She was now an infant aged 19, married to Benjamin Kirkby, and the complainants wished to carry the trust of the estate as willed into execution; the will was so obscure that they could not make the assignment except by the authority of the Court.  Last sittings the Court referred the application to the master to approve of the trustees, and John Lamb and A.B. Spark, Esqrs. had been approved to act in the place of these gentlemen.  The answer to the bill was of a friendly nature, the application being by consent.  The degree as prayed for was granted by the Court.


[1 ] See also Australian, 9 November 1832; and see Sydney Herald, 16 April 1832.

See also Doe d. Wilson and Crew v. Therry (heard in banco, 17 October 1832), reported in Dowling, Proceedings of the Supreme Court, Vol. 78, Archives Office of New South Wales, 2/3261, at p. 215: ``The points ruled in this case (tried before Forbes C.J.) were first, that the breach of a condition in a grant from the crown cannot  be taken advantage of by a stranger.  Second  that a grant from the crown to wife dura solâ is a chattel interest, & vests by law in husband, at the time of her death; and alienation by her during coverture, is non effective without his consent.  R. for a new trial refused."

Published by the Division of Law, Macquarie University