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

Canton v. Norton and others [1837] NSWSupC 44

succession, proof of death, death, presumption of

Supreme Court of New South Wales

Dowling A.C.J. and Burton J., 17 July 1837

Source: Sydney Herald, 20 July 1837

Canton v. Norton, and others. - This was a bill filed by Mrs. Bridget Canton, against the executors of the late Mr. Doyle, of Windsor.  It appears that in February 1836, the late Mr. Doyle made a will, in which he left the sum of £6000, together with the house and premises in which he lived at Windsor, with all the furniture, plate, &c., which they contained to his sister, Bridget Canton.  The will described the manner in which the legacies were to be paid, and the plaintiff now complained that the executors refused to pay the legacy.  The defendants answered that unless they were convinced the husband of the plaintiff was dead, they were not authorised to pay the legacies to the said Bridget Canton.  To this the plaintiff replied, that she believed her husband to be dead, as she had not heard of him for nearly ten years, and that if he was not dead it made no difference in the matter, as in consequence of quarrels between them, a deed of separation was drawn up in the year 1827, in which it was covenanted that neither party should thereafter have the least claim on each other, or on any property which they might respectively obtain.

Mr. Carter, who appeared for the defendants, said that they were anxious to pay the money according to the provisions of the will, if the plaintiff could shew that her husband was dead, or could prove the deed of separation.  The money was in the Bank of New South Wales, and would be paid as soon as the plaintiff could make out a case to justify the Court in ordering them to pay it.

After the Attorney-General and Mr. Foster had been heard, the Court said that before the executors would be authorised in paying her the legacy, the plaintiff must prove that her husband was dead, or give proper proof of the deed of separation being executed, but, as there was no objection on the other side, instead of dismissing the bill, the Court ordered it to be postponed.  Their Honors intimated that they though the executors would be justified in allowing a maintenance to Mrs. Canton.

Published by the Division of Law, Macquarie University