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

In the estate of Bradbury [1837] NSWSupC 22

succession - succession, next of kin, meaning of - marriage, second marriage in colony - reception of English law, succession, ecclesiastical jurisdiction - Supreme Court, ecclesiastical jurisdiction - Crown prerogative, limits on - fee system of administration

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 30 March 1837

Source: Sydney Gazette, 1 April 1837[1 ]

The Attorney General moved in the case of William Bradbury, for letters of Administration to be granted to the daughter of the deceased,, Mary Sheil, and her husband Dennis, at heirs at law.

It appeared from affidavits of the Rev. Mr. Therry and the Rev. Mr. Reddall of Campbell Town, also of Daniel Parsons Grove, by whom the Will, and confidential business of deceased were executed, that he (deceased) married one Catherine Patrick a widow, at Campbell Town, he being at the same time a married man, his wife residing in Hammersmith workhouse in England.  That he had sent various sums of money home to her at different times, and at one time, had applied to the government to procure her passage to this colony.  That the daughter, Mary Sheil, was the only issue of the marriage, and came out to her father years ago; she was married and had children, which deceased always treated as his grand-children.  Letters from the former wife, was also put in, which were however considered by the Court, of a very doubtful and suspicious character.  The Will, too, was only a copy, the original it was alleged was got out of deceased's hands a short time previous to his death.

Mr. Windeyer opposed the motion on behalf of the widow of the deceased upon the grounds that the letters, Will and evidence were all fictitious.  That a former Will had been made leaving the bulk of the property to the Blue Coast School.  The effect of this suit, if successful would be to bastardize the issue, if any, of the wife and place her in the condition of one not married, to reduce her from a woman of property and independence to an outcast, and a beggar.  The learned Counsel referred to the 14th clause of the statute, investing the Court with Ecclesiastical Jurisdiction, and contended that the Court possessed no jurisdiction beyond that given by the clause.  By 4. Institute. cap. 35. in the case Hargrave v. Butler, p. 35. three things were to be observed, in investing the Court with Ecclesiastical Jurisprudence, namely an act of parliament, a statute investing the new Court, and the Court could not depart from it.  It would show the popular opinion on the next point of next of kin, and show that the widow was indebitably such: to prove which the time of the court was occupied several hours, up to its adjournment, in hearing citations from the books which were very numerous, and interesting only to the parties concerned.  Decision reserved.

Dowling A.C.J., Burton and Kinchela JJ, 10 April 1837

Source: Dowling, Proceedings of the Supreme Court, Vol. 133, State Records of New South Wales, 2/3317[2 ]

[p. 157]

Monday 10th April 1837

In Banco

Cor. Dowling ACJ

Burton J

Kinchela J

In the Goods of Wm. Bradbury deceased.

Judgment.

In this case, cross applications had been made for letters of administration of the goods and chattels of Wm. Bradbury deced [sic], and at the instance of Catharine Bradbury the widow of the deceased, and the other at the instance of Dennis Sheil & his wife Mary Sheil, in right of the latter as the daughter and lawful next of kin of the deced [sic].  Mutual Caveats having been entered respectively, the matter came on for argument on affidavits before us at the close of last term.  The widow rested her claim to have the letters of [p. 158] administration committed to her by virtue of a marriage defacto, which made her next of kin as was contended to the deced [sic] - & resisted the application of the daughter on the ground that she was not only not next of kin in law, but that she was illegitimate.  The daughter on the other hand resisted the application of the widow on the ground that at the time of the marriage of the deceased with her, he had another wife then, and now living in England.  Upon the facts sworn in the affidavits, it is quite incompetent for us to determine either upon the validity of the marriage of Catharine Bradbury with the deced [sic], or upon the legitimacy of Mary Sheil as his daughter.  No doubt a marriage defacto [sic] [p. 159] had been clearly established, by licence according to the rites of the Church of England and the ceremony performed by one of the Colonist chaplains.  Every intendment must be made in favour of such a marriage, until the contrary is established, and whatever suspicions may have been thrown around the marriage by the parties resisting the widows application, yet there is not enough to deprive her of the right she has prima facie in this Court, as the wife defacto of the deceased.  Treating her therefore as the lawful widow of the deceased (as we are bound to do) the question is, in what character, if at all, is she entitled to have administration.  On her part it was insisted that she had a right to come in as next of kin, within the meaning of the Charter of Justice 13. October. 4. G. 4. [p. 160] and great learning and industry [?] evinced to establish that a wife is next of kin to her husband.  We have carefully looked through the authorities cited in support of this proposition but we are clearly of opinion that the proposition is not maintainable.  It is however, not necessary to go at large into this part of the case, if it appears, as it does to us, that her right stands at present upon a higher ground.  Even if it should be made manifest, that the Charter of Justice did not give us jurisdiction to grant letters of administration to a widow, qua widow, and were bound to grant therein to her qua next of kin (of which we entertain very grave doubts) still the stat. 9. Geo. 4. C. 83. removes from our minds all difficulty upon the subject.  [p. 161] Assuming that the charter has carved out a peculiar jurisdiction for the Court in matters of this kind, so as to exclude the right of a widow qua widow and that we cannot go out of the charter, still we apprehend the stat. 9. G. 4. C. 83 removes the difficulty.  By the 2nd section of that act, it is enacted that until this majority shall cause fresh letters patent to be issued for this court, the letters patent issued by virtue of the statute 4 Geo. 4. C. 96., so far as the same shall not be altered by the 9. G. 4. shall be of the same force and affect as if the same had been issued in pursuance of the last mentioned act.  Both acts, as well as the charter, give a general jurisdiction to this court in Ecclesiastical matters, modified no doubt in its extent by that charter or by any other charter to be committed to the Court.  No new charter [p. 162] has in fact been issued since the 4th Geo. 4.  We apprehend it to be clear law, that the King has no prerogative to grant a charter in restraint of the laws of the realm; & therefore the charter in question could not deprive the subjects of this Colony of any rights vested in therein by that legislature.  Now by the G. G. 4. C. 83. S. 24. it is enacted "that all laws & statutes in force within the realm of England at the time of the passing of this act (not being inconsistent herewith or with any charter or letters patent or order in council which may be issued in pursuance hereof) shall be applied in the administration of justice, in the Courts of New South Wales "No charter, letters patent, or order in council, have been [p. 163] issued in pursuance of that act, and it therefore follows, that any laws or charters in force in England at the time of the passing of the act, must be in force here, so far as the same can be applied.  This important clause, which is not to be found in the 4. G. 4. C. 96., by virtue of which the present charter was issued, makes a most important change in the extent of jurisdiction given by the charter in matters of this kind, and lets in all statutes which would be in force in the Ecclesiastical Courts of England.  The statutes 31 Edw. III. c. 11 & 21 Hen. 8. c. 5. s. 3 are in force in those courts, and therefore by necessary operation of the 9 G. 4. c. 83. they become of force in this court, & if any doubt could be entertained as to the construction of the Charter in existence, it is that completely removed.  Now by the stat. [p. 164] 21. Hen. 8. the ordinary is compellable to grant administration of the husband's effects to the widow or next of kin but he may grant it to both or either at his discretion (2 Blk. Com. 495. per Chitty.)  The wording of this statute is in our opinion quite decisive that wife is not next of kin to husband, and that she could have no right to administration as next of kin by force of that statute.  She has it solely in right of wife to the deced [sic].  If she had the right as next of kin, why introduce the wife by name, and interpose the disjunctive particle "or", in connexion with the words "next of kin?  Next of kin clearly means - next of blood.  The wife being now before us, and a marriage defacto being established, we think [p. 165] we are bound to commit the letters of administration to Mary Bradbury of the goods & chattels of Wm. Bradbury, but taking care to require such justifying security of her, as shall protect those who may be interested, should it ultimately turn out to be necessary to repeat the letters of administration.

No judgment delivered.Registrar Delivered in a report.

Order letters and collisend cum.

Dowling CJ. we were prepared to give judgment in this case. - but postpone decision till next term at all events.

Notes

[ 1] See also Sydney Gazette, 25 July 1837.

J.E. Manning, the Registrar of the Supreme Court and Curator of Intestate Estates, wrote to the judges of the court on 5 May 1838, concerning the proposed Rules on intestate estates.  His primary concern was with his own income.  He used the case of Bradbury to show how diligent he had been in uncovering the existence of the English widow.  The daughter's husband was drunken and dissolute, but the colonial widow was ten times more depraved and unworthy.  He wanted a continuation of a system under which he was paid fees of office as well as a salary.  (Source: Chief Justice's Letter Book 1836-1843, State Records of New South Wales, 4/6652, pp 67f.)

[ 2] For further proceedings, see Dowling, Proceedings of the Supreme Court, Vol. 134, State Records of New South Wales, 2/3318, p. 43; Vol. 138-1, 2/3322, p. 74, when the decision was deferred.  It is not certain that this judgment was ever delivered.

Published by the Division of Law, Macquarie University