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

In the estate of Dempsey [1838] NSWSupC 34

felony attaint - pardon, when effective - succession

Supreme Court of New South Wales

Burton J., 27 March 1838

Source: Australian, 3 April 1838

Mr Windeyer moved that letters of administration, with the will annexed, of the estate and effects of James Dempsey, deceased, be granted unto Timothy Maher, one of the executors therein named - the two others named in the will having renounced their executorship.  The Attorney General, as amicus curiae, suggested that Maher could not act as an executor, he being under an unexpired sentence of transportation, and being thereby rendered incapable under the Act of Parliament, of acquiring or holding property.  The learned gentleman said, that he merely suggested this as amicus curiae, because it was within his knowledge that the applicant was a most respectable man, in his station of life - but it might turn out that parties would sue the the [sic] estate of the deceased, and the applicant, even in his capacity as executor, could not, under the Act of Parliament, be sued.  Mr Windeyer explained that the applicant had lately been brought before the Sydney Bench of Justices in their summary jurisdiction, upon a trivial complaint of abusive language towards Mr Edwin Park; and the question then arose whether he was to be considered in the light of free or bond.  Maher held what was termed the Governor's letter for a conditional pardon, and a duplicate of the pardon, which had been transmitted to England for Her Majesty's approval, was produced in Court.  The pardon, when approved of, (and there were few, if any instances, where recommended pardons had been refused), would take effect from the date of it's having been granted, and it was therefore held by the Magistrates, that Maher was to be dealt with as a free man - the presumption being that he was such.  Mr Justice Burton wondered how any question whatever could arise upon the point.  The Act expressly declared, that the pardon should take effect from the date of it's being granted, when the Sovereign's approval should be signified through one of the principal Secretaries of State.  Until, therefore, the royal approval to a pardon was made known, the instrument was incomplete.  The Court suggested that administration, in the mean-time, be granted to the two other executors named in the will, with leave to the applicant to come in and join in the executorship, when he was in a condition to do so.  This course was ultimately adopted, after Mr Windeyer had communicated with the parties.

Published by the Division of Law, Macquarie University