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

In re White [1835] NSWSupC 85

succession, selection of administrator

Supreme Court of New South Wales

In banco, Dowling and Burton JJ, 17 October 1835

Source: Sydney Herald, 19 October 1835[1 ]

In the case of Henry White, deceased - Mr. Sydney Stephen moved that administration should be granted to John Thomas Wilson, a creditor of the intestate.  Citation had issued some time ago for the next of kin to come in, otherwise administration would be granted to the applicant, when two other creditors lodged caveats against it.  It was true, that there were other creditors of the intestate, whose debts exceeded that of the applicant, but he was a person of character and in opulent circumstances, and therefore calculated to act beneficially for the creditors in his capacity as administrator.  One of the persons who had lodged a caveat, Thompson, a butcher, of Sydney, was a creditor to the amount of £400, but he was prepared to shew, that although a creditor to such an amount, he was not a proper person to exercise the functions of an administrator.

Mr. Kerr, who appeared for another creditor said, that the practice of the Court was, that the principal creditor shall take the administration.

Mr. Sydney Stephen replied, that it was not because a party happened to be a creditor to a large amount, administration should necessarily devolve upon him; reason and justice spoke against the practice, as tending to prejudice the interests of the smaller creditors; he therefore contended that a party being a creditor to a large amount was the very reason why a preference should not be given to him.  The applicant was a gentleman, in whose hands administration would tend to the benefit of the whole of the creditors, and give general satisfaction.  With regard to the claims of Thompson, they were secured to him by promissory notes, whilst other creditors held no such securities.

Mr. Kerr on the part of a Mr. Hughes, Grocer, Pitt-street, objected to a preference being given to the applicant over other creditors whose claims exceeded his; he, Mr. Kerr, had no objection to Mr. Wilson being joined with his client in the administration.  The Court gave an opinion, that the better course would be to refer the parties to the master, who would decide as to who was the most proper person to whom the Court should grant administration.

 

Notes

[1 ] See also Australian, 6 November 1835, when George William Hughes was appointed administrator, on the advice of the Master.

Published by the Division of Law, Macquarie University