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

Atkinson v. Barton [1841] NSWSupC 70

succession - guardianship and maintenance of children - Court of Claims - married women's legal disabilities

Supreme Court of New South Wales

Dowling C.J., 6 July 1841

Source: Sydney Herald, 3 July 1841  [1]


In this case a bill had been filed by the children of James Atkinson, deceased, through Joseph Newton their next friend, against the executors and trustees of their father's will, praying an account and maintenance. The other defendants have answered the bill, but the defendant Charlotte Barton, the mother of the minors, and who has married a second time, has not yet put in her answer. It had been referred to the master to appoint a guardian pendente lite, and a maintenance for the minors: the master made his report, recommending the appointment of a guardian; the plaintiff had obtained an order to confirm that report nisi; and Mr. DONELLY, for the plaintiff, now moved to make that order absolute.  Mr. BROADHURST, for the defendant, Charlotte Barton, submitted that the plaintiffs' proceeding was irregular: that he should have proceeded by petition instead of motion: that, in this case, the defendant could not file exceptions to the master's report; but that he should have had an opportunity of excepting to it, which she could only do upon petition.  Smith's C. P., Vol. 2, page 357. Mr. Donelly contended, that the authority cited, referred to cases where reports are made upon petition without any suit, which reports should therefore be confirmed by petition; but that decretal order, like the present, only required to be confirmed upon motion; that the proceedings upon motion were so much cheaper and shorter than upon petition, that the plaintiff had preferred that course in order the better to save the estate from expense, and the sooner to supply the wants of the minors, who were now in a state of complete destitution. Daniels C. P., vol. 2, page 946.

            The CHIEF JUSTICE: This is an application, the effect of which will be to have the children taken out of the care of their mother, their natural guardian, during the pendency of this suit, which may last for some time; and to do this a strong case should be shown; I think that the defendant should have an opportunity of excepting to the report.

            Mr. BROADHURST suggested that perhaps the the better course for all parties which could be now taken, would be for the defendant to file a petition of review, and thus bring the matter fully before the Court.  Mr. DONELLY having consented to this course, is was settled that no order should be made upon the motion, and that the defendant should file a petition of review, which, for greater despatch, theCHIEF JUSTICE fixed for hearing on Tuesday next.

            Attorneys for the plaintiff, O'REILLY; for the defendant, FITZHARDINGE.The Court then adjourned to Tuesday.

Dowling C.J., 9 July 1841

Source: Sydney Herald

10 July 1841


IN [Equity. - Before the CHIEF JUSTICE.]


The Chief Justice delivered the following judgment in this case, which was before the Court on Tuesday last, upon a petition of Review filed by the defendant Charlotte Barton, by which she sought to set aside that part of the Master's report in this cause which recommended the appointment of guardians for the defendant's childrenpendentelite. The Chief Justice decided upon leaving with the defendant the uncontrolled guardianship of her children during the progress of the suit.

            His HONOR said this was a petition to review the Master's report, upon a reference to him on the 25th February, 1841, to approve of a fit and proper person or persons to be appointed guardian or guardians of the infant plaintiffs in this suit, during their minority. Upon the private hearing of this matter at Chambers, on the 8th inst., it was argued, in order to avoid farther delay and expense, that I should at once direct what ought to be done in this stage of the cause, instead of referring the matter back to the Master. Various objections were taken to the Master's report, to which it is not now necessary particularly to advert.  The late James Atkinson, Esq., of Oldbury, by his will, dated 25th October, 1831, gave and bequeathed to his wife Elizabeth, for life, or as long as she continued a widow, the whole of his personal estate, to be applied at her discretion in the education and maintenance of his four children, the infants in this cause, and after her death the whole was to be divided amongst his children as soon as they all should attain twenty one years of age, with the exception of his estate at Oldbury, which he desired might descend to his eldest or only son if any; and in case his wife should marry again, she should be entitled to receiv[e] £1000 out of his personal estate for her own use, and the remainder of his real and personal estates should be held in trust by his executors for the use of his children, to be equally divided between them when they should all attain twenty-one, except as before excepted, as to the Oldbury estate, which was to descend to his eldest son undivided. The testator appointed his wife, A. Berry, Esq., and John Coghill, Esq., his executors. The testator died on the 30th October, 1834, leaving his wife, one son, and three daughters, him surviving, and his will was duly proved by his executors. In March, 1836, his widow intermarried with Mr. George Bruce Barton, from whom she is now in fact separated, from causes of a domestic nature, but irrespective (as far as appears at present on the proceedings) of any personal demerit on her part. A bill has been filed on behalf of the infants, against the executors for an account, and praying the appointment of a receiver. The executors, Messers. Berry and Coghill, have put in their answer; but Mr. Barton has not yet answered. Pending the cause, the reference in question to the master, to appoint a guardian for the infants, and to report what allowance should be made, and the question now arises upon the master's report, whether Mrs. Barton, the mother of the infants, should, under the authority of this court, be appointed guardian until the final hearing of the cause now depending. In the argument of the case before me, on the master's report, it was conceded on all hands, that whatever assumed personal unfitness there might have been in Mrs. Barton to be the guardian of her infant children, that suggestion was without foundation, and all intention of separating her from her children was not only abandoned, but even a desire expressed that she should still have uncontrolled access to them, subject only to such limitations as were consistent with school education. It would be the duty of this Court to effectuate the intentions of the testator, in the event, supposed by him of his widow marrying again; that the provision for the maintenance and education of his children should be strictly guarded; but I do not collect from his will that he contemplated a separation of the children from the mother in the event of a second marriage. The primary object in view seems to have been to preserve the fund intact, for the purposes of maintenance and education, and for the benefit of the children, free from the control or participation therein of a second husband. So long as these objects were kept in view, and the children were properly maintained and educated, he seems not to have been solicitous as to the mode in which those objects were effected. On the part of Mrs. Barton all interference with the fund thus appropriated is disclaimed, she being desirous only that the expense fairly incurred in maintaining and educating the children proportionate to their means and expectations, should be defrayed by the executors. So long as there appeared any danger of misappropriation of the funds by Mrs. Barton, either during her residence with, or separate from her husband, the executors were bound to exercise a jealous watchfulness; and, in the care they have taken in this stage of the proceedings, it appears to the Court that they have exercised a commendable caution. Had there been any unfitness in Mrs. Barton personally to be the guardian of her children, or if by reason of her marriage with her present husband the children were likely to be exposed to discomfort, or the proper duties of a mother were likely to be interfered with either by the control or presence of her husband, it would be the duty of the Court to protect the infants from such consequences; but in the present position in which she is placed, the only question for me to determine is, whether it is necessary with a view to their education that they should be taken from her and sent to a school not of her own choosing, but under the control and direction of another guardian, to be appointed by the Court. The master has certified by his report, that since the death of their father the infants have resided with and have been instructed under the charge of their mother, and he finds that they have been instructed with love and attention, and educated in some branches not generally taught at public schools. From the evidence before the master, it appears that Mrs. Barton was herself brought up as a governess, and prior to her marriage with Mr. Atkinson, had been engaged in several families of consideration in educating young ladies in every branch of female accomplishment. It being made manifest, therefore, that Mrs. Barton is herself competent to educate her children either by herself or by any competent assistance under her own eye, it would require a state of urgent circumstances to induce the Court to deprive them (all of whom are under thirteen years of age) of that maternal care and tenderness, which none but a mother can bestow. If education means merely school instruction in the usual branches of knowledge, and Mrs. Barton were incapable of imparting them, the Court would be bound to see that the intentions of the testator were carried into effect, even at the expense of depriving the infants of that most essential part of education the cultivation of filial piety, of the affections of the heart - and of those social duties of domestic life which constitute the most sacred bond between parent and child, - but when it is acknowledged that she is competent to instruct her children in all particulars suitable to their present ages, I see no reason why she should not still have the guardianship of them, at least until the final hearing of the cause. The comfort, the happiness, and the advantage of the children, indicate this determination, when not opposed by any counteracting circumstances, at present pointing out a different course. To impose upon the mother even [a] qualified control in this matter, [lines partly omitted]

bound to direct that the natural guardianship of the infants should be confirmed by the direction of this court, until occasion (should any arise) for the court's interposition, with a view to the welfare of the children. I see no necessity at present for appointing any other person with Mrs. Barton in the guardianship, especially the gentleman proposed by the executors, who however respectable a person, yet stands in the anomolous position of being clerk to one of the solicitors in the cause. It appears that no other person can as yet be found to act as guardian, and consequently the court is compelled to deal with the case as one in which no preferable course can be adopted. The master has reported that in his opinion an annual allowance of £350, will at present be sufficient to cover the expense of the maintenance and education and clothing of the infants, payable out of the income arising from the free, real, and personal estate, to commence from the 1st January, 1841. So far his report must stand confirmed, and at and after that rate of allowance, the executors will be sanctioned in making disbursements for these several objects, and they are hereby directed accordingly. It appears that there are some out-standing claims against he estate for these purposes due at the time of the filing of the bill now pending. Those claims if satisfactorily made out the executors will be justified in discharging under the authority of this Court, and for that purpose direction will be given in the order which the Master will draw up. The order now propounded will take effect and be in force until the final hearing of the cause. It is to be lamented that so much delay and expense has arisen in this interlocutory proceeding, for unfortunately the estate must be burdened with the costs of it. The petition, on which my present order is founded, seems to me to have been unnecessarily long, in setting forth the whole of the Master's report, which, being on the files of the Court, need only, as it strikes the Court, have been referred to, in setting for the grounds of objection. The Master, in his taxation of costs, will determine whether the petition might not have had the merit of greater brevity without with holding matter necessary for the decision thereon, or infringing any rule of practice in like cases. If he thinks it might have been shortened consistently with these criteria, he has the sanction of the Court for disallowing costs for irrelevant detail.

            The Court then ordered that the costs of the interlocutory order, and of all parties, were to be taxed and paid out of the estate by the executors.



[1] See Atkinson v. Barton, 1842.

The Sydney Gazette, 18 July 1834, p. 4 reports the following decision of the Court of Claims. (Despite its title, this was an advisory body to the Governor, recommending for or against the issuance of Crown grants of land.):

"Case No. 117 - Executors of the late J. Atkinson, of Oldbury, deceased, in trust for Charlotte Elizabeth Atkinson, Jane Emily Atkinson, James John Oldbury Atkinson, and Caroline Louisa Waring Atkinson. Five hundred acres, in the County of Camden, and parish unnamed, near Berrima.

"The order for this land was issued on the 1st October, by Governor Sir Thomas Brisbane to James Atkinson, deceased, who, it is alleged, devised to his Widow, now Mrs. Barton, for life if she remained unmarried, otherwise to his children in trust.

"Case No. 118 - Executors of the late James Atkinson, of Oldbury, deceased, in trust for Charlotte Elizabeth Atkinson, Jane Emily Atkinson, James John Oldbury Atkinson, and Caroline Louisa Waring Atkinson, Two hundred and ninety-four acres, in the County of Camden, and parish unnamed, at Sutton Forest, near Berrima.

"The order for this land was issued on the 11th August, 1828, by Governor Darling to James Atkinson, deceased, who, it is alleged, devised to his Widow, now Mrs. Barton, for life if she remained unmarried, otherwise to his children in trust.

"Case No. 119 - Executors of the late James Atkinson, of Oldbury, deceased, in trust for Charlotte Elizabeth Atkinson, Jane Emily Atkinson, James John Oldbury Atkinson, and Caroline Louisa Waring Atkinson, Fifty acres, in the County of Camden, and parish unnamed, near Berrima.

"The order for this land was issued on the 8th May, 1830, by Governor Darling to James Atkinson, deceased, as a special Reserve, for the purpose of erecting a Mill. Deceased, it is alleged, devised to his Widow, now Mrs. Barton, for life, if she remained unmarried, otherwise to his children in trust."

Published by the Division of Law, Macquarie University