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

Davis v. Crispe [1834] NSWSupC 100

succession, interpretation of will - married women's legal disabilities, wife of convict - widows, right of quarantine - dower - bigamy - marriage, convicts remarry in New South Wales - felony attaint

Supreme Court of New South Wales

Burton J., 10 June 1834

Source: Australian, 13 June 1834

Davis v. Crispe. - This was an action of trespass for breaking and entering the plaintiffs dwelling, and seizing certain goods of the plaintiff and converting them to his own use.  The second count was for expelling the plaintiff from the dwelling of which he was possessed.  The third count was for carrying away the plaintiffs goods.  The fourth count was for an assault committed on the plaintiffs wife.  The defendant justified that the goods were in the defendant's house encumbering the same, and he caused them to be removed; and as to the assault, that Mary Davis the wife of plaintiff was in the house of defendant making a noise therein, and refused to leave upon being requested, whereupon defendant gently laid his hands on her and removed her.  The plaintiff replied extra viam.

The facts of the case were these; -- On the 2nd of February last one Richard Carter died possessed of the property in question, having by his Will appointed the defendant and another party Executors thereof, and Trustees to sell the Estate, and apply the proceeds as directed.  At the time of the death of Carter, his widow was living in the house of one of the Executors where she remained about a week, and then returned to the premises in question with the permission of the Executors, who said she might reside there until they were sold agreeably to the Will.  When the widow left the premises to reside with the Executor, the Trustees put a man in possession of them, and it did not appear how he got out.  The premises were sold by the Trustees in pursuance of the Will, and when they went to give possession to the purchaser on the 10th of March, they discovered that the widow had married the present plaintiff and refused to give up the premises, claiming a right to remain there for the space of forty days after the decease of her husband, thirty six of which only had expired.  Upon this the defendant took the wife of the present plaintiff by the hands and led her out of the house, and put the articles of furniture outside the door.  To recover a compensation the present action was brought.

For the defendant, it was contended, that under the will of the testator, the property was devised to trustees in trust to sell, and the defendant in execution of the trust, discharged his duty only in the part he had taken.  With regard to the claim of quarantine by the widow, she surely had lost her character by the marriage with the plaintiff.  It was no estate in Lands, only a right of possession in the widow, and could not be vested in the husband.  The estate was Carter's, and upon his death, the trustees only were legally entitled.  The widow's right was a participation of the proceeds after the sale.  Besides the possession had been abandoned by the widow, and given up to the trustees on the day of the funeral of the testator; and the widow's right was a right of possession, not a right to re-enter.  She went back to the premises with the permission of the trustees to remain until the premises were sold; that could not surely revest in the widow her right of quarantine.  That if the widow had an estate it must have been vested in the husband, and the wife ought to have been joined; and that they should have declared specially on the possession of the widow, not of the husband.  As to the question of assault there was no unnecessary violence used.  The widow had by the kindness of the trustees retained part of the furniture which she had possessed herself of, and which she was not entitled to.

The plaintiff abandoned the counts in the declaration for the injury done to the freehold, and

The learned Judge left the assessors to determine - first, whether the widow had been unlawfully removed; and secondly, if she were lawfully removed from possession, had more force been used than was necessary for the accomplishment of a lawful purpose.  In either case the plaintiff would be entitled to recover.  But if the widow had abandoned her possession, and afterwards assented to remain as permissive occupant, with the concurrence of the trustees, until the premises were sold, she had no right to complain in this action of a wrong and the defendant would be entitled to the verdict.  To determine either question they must look at the evidence, which was contradictory.  In point of law, the widow was entitled to her quarantine, that is, to remain in possession of the house forty days after the testator's death, and could not be removed without her assent.  If she voluntarily went the defendant would be entitled to a verdict.  If she had been put out against her consent, the plaintiff would be entitled to recover such damages as the nature of the trespass proved seemed to require.

The assessors found a verdict for the plaintiff - Damages, forty shillings.

F. Stephen and Nichols for plaintiff; Norton for defendant.

 

Forbes C.J., Dowling and Burton JJ, 21 June 1834

Source: Australian, 1 July 1834[1 ]

 

Davis v. Crispe. - This was an application for a nonsuit or new trial on the part of defendant.  His Honor Mr. Justice Burton read his notes of the trial, and stated that he had mis-directed the assessors in point of law, in holding that the plaintiff was entitled to a verdict, on the ground that his wife had been forcibly expelled from the mansion of her previous husband before the expiration of her quarantine or forty days from his death.  This right of quarantine was forfeited by her subsequent marriage within the forty days, a rule of law for which he had not the authority in Court at the trial.  His Honor was of opinion that although there was evidence to support a verdict without such direction, yet, that the assessors had made up their minds in consequence of the point of law which he had erroneously laid down, -- and, therefore, that a new trial should be granted.

Messrs. Foster and Norton contended that a nonsuit should be entered on the ground that the objection was taken at the trial on the point respecting the right of quarantine, and that if that point failed the plaintiff, he could not sustain the action because his wife had not joined in the same, this being an action for assaulting the wife.  The declaration in itself was good, because it alleged that the husband had sustained special damage, by the beating of his wife; but of this special damage, no evidence was offered, and without proof of special damage, and the plaintiff relying upon the mere assault, his wife should have been made a party.

Mr. F. Stephen opposed the nonsuit, as no point had been reserved at the trial, and urged that there was evidence given on both sides from which the special damage might be inferred.  - A new trial was granted, but the nonsuit refused for the reasons urged - His Honor Mr. Justice Dowling observing, that it was impossible to say no special damage had accrued, for the assault was actually committed on the wife of plaintiff on her wedding day, from which the assessors might have concluded that plaintiff was deprived of the comfort and society of his wife on that important occasion.

 

Forbes C.J. and Dowling J., 3 October 1834

Source: Australian, 7 October 1834[ 2]

 

On Friday the Chief Justice delivered the final judgment of the Court in the following curious case, which had been argued on a previous day before himself and Mr. Justice Dowling:-

Davis and Wife v. Crispe and another.  - This was a bill filed against the defendants for the purpose of recovering a sum of money bequeathed to the plaintiff's wife, by one Richard Carter, whose widow she was.  The case came before the Court upon the following admission of facts:-  It appeared that in the month of November, 1826, the testator, Richard Carter, and the plaintiff's wife (then Mary Taylor) were married, after banns being duly published by the Reverend Samuel Marsden, with the permission of the Governor, at the Parish Church of Parramatta.  The testator, after his marriage, had accumulated a large property, consisting of real and personal estates, and by his will, dated 1st of February, 1834, demised all his estate to the defendants, the trustees and executors therein named, upon trust to sell and dispose of the same by public auction, and after deducting the expences [sic] attending the sale thereof, payment of his debts and funeral expences [sic], and paying his wife, Mary Carter, who he married in New South Wales, her lawful dower, to deposit the remainder in one of the Banks of New South Wales, for the purpose of being paid over to his wife and children, who were resident in England. - It was also admitted that Carter was married in England, that his wife was now alive, but that subsequent to his first marriage he had been transported to this Colony for a felony.

Mr. F. Stephen for the plaintiff argued at some length that this was a case in which the intention of the testator must guide the Court in its decision. - The terms lawful dower mentioned in the will could only be construed to mean a third portion of the testator's estate.  It was clear she could have no lawful dower, as the testator was married before he left England, and his wife was living there.  It was probable that the testator, who was an ignorant person, might imagine under the circumstances of his being transported, that he might in this Country lawfully be married again during the life of his wife in England, and that his colonial wife would be entitled to her dower of his colonial property.  Such an error was by no means uncommon.  The question was, did Carter intend to give complainant something or nothing?  The whole tenor of the will shewed that he did not mean to leave her without a provision, and therefore the word dower was the measure by which the exeeutors were to be guided, and must be assumed to mean what, in ordinary acceptation it was supposed to mean, viz. one third of his property, and was not limited by the word ``lawful," which would leave her without anything.  As he had directed the real property to be first converted into personalty, it was further contended that the testator intended to give to complainant one third of the proceeds absolutely.

Upon the part of the defendants it was urged that the testator intended to bequeath the plaintiff's wife no more than she was legally entitled to, which was, not hing [sic], the second marriage being entirely void and the first wife entitled to dower.  The fair construction of the words were, ``if Mary Carter is legally entitled to dower, then I bequeath it to be paid to her."

The Chief Justice said this was clearly a case in which the intention of the testator ought to direct the Court in its decision.  Looking at the will, his intention could be easily seen.  Upon the state of facts presented, the case was peculiar to this Colony, and it would be fruitless to look for precedents.  It was a popular error here (and he regretted to say it was one which many persons had fallen into) that where a man is transported for life for a felony to this Colony, he comes here a new man.  Therefore many people have contracted matrimony, and have treated their issue by such marriages as legal heirs to the property, as if they had never been married before.  He, (the Chief Justice) however, would state that the law of England recognized nothing of the kind - certain disabilities were certainly attached to a conviction for felony, and consequent upon attaint, was the disability to sue in a Court of Justice, or to make any contract.  This disability in the husband rendered the wife a feme sole to a certain extent, for the purposes of trade for instance, but a marriage contract legally solemnized could not be put an end to, by transportation or exile.  He was clearly of opinion, however, that it was the intention of the testator to make some provision for ``the wife he married in New South Wales," to use his own terms, and that the words lawful dower should be taken as a measure by which he intended to apportion the widow's share of his property, and therefore she was enabled to receive one third after payment of the testators just debts and funeral expences [sic].

Mr. Justice Dowling was of the same opinion - the intention of the testator, to use the terms adopted in the law books, was the ``Polar Star" by which Courts were directed in the construction of wills, and it was evident that the testator intended to give the plaintiff's wife one third of his property, after making the deductions directed in the will.

Counsel for the plaintiffs, Mr. F. Stephen and Mr. Nichols; for the defendants, Mr. Carter.

 

Notes

[1 ] See also Sydney Gazette, 21 June 1834; Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3283, vol. 100, p. 4.

[2 ] The notes of the initial hearing on this appeal are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3286, vol. 103, p. 68.  This also includes a shorthand version of the judgment of Forbes C.J.

Published by the Division of Law, Macquarie University