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

Brownlow v. Foster, executor [1838] NSWSupC 30

succession, appointment of executor

Supreme Court of New South Wales

In banco, Dowling C.J., Burton and Willis JJ, 24 March 1838

Source: Sydney Herald, 26 March, 1838[ 1]

Brownlow v. Foster, Executor. - This was an action to recover the sum of £64 14s. for a goods supplied to one Atkinson, tried before Mr. Justice Willis, when a verdict was returned for the defendant.  A motion for a new trial was now made by Mr. a'Beckett.  His Honor, before reading his notes, observed that the plaintiff's attorney stated, when the case came on, that the defendant's wife had offered that morning to pay the debt, which he had refused to take without the costs, but Mrs. Foster could not be found, and the case was proceeded with.  The facts were very simple; it was not denied that the debt was due from Atkinson.  Corporal Lane stated that when Atkinson died, he was in possession of a public-house, full of furniture, with wine, spirits, &c.; he had since seen the defendant behind the bar acting as master of the house; this witness subsequently stated that at the time he saw the defendant waiting, everything belonging to Atkinson had been sold. Mr. Nichols proved that he defendant had told him that he married Atkinson's widow.  His Honor said he must nonsuit the plaintiff, as there was no such act of interference with the property of Atkinson as constituted him an executor, but the plaintiff wishing the case to be left to the Assessors, His Honor told them that there was not sufficient evidence to prove that the defendant had acted as an executor, nor did the acknowledgment of the defendant's wife that the account was correct bind him.  The Assessors returned a verdict for the defendant.

Mr. a'Beckett appeared in support of the motion for a new trial, contending that sufficient interference or intermeddling had been shewn to bind the defendant.  The learned gentleman quoted several cases to show that the slightest acts of intermeddling, even taking away a dog, or milking a cow, had been held sufficient to bind a party as executor.

After Mr. Kerr had been heard in reply, the Court decided that there must be a new trial; the laws as laid down by the learned Judge was quite right, but still they considered that there was sufficient evidence to prove an intermeddling, and that justice had not been done.  The circumstance of the defendant having adopted the wife and the business was enough evidence to have been left to the Jury.  New trial ordered.



[ 1]See also Australian, 27 March 1838; Sydney Gazette, 29 March 1838.

Published by the Division of Law, Macquarie University