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

In re Mocklar [1841] NSWSupC 19


Supreme Court of New South Wales

Dowling C.J., 27 February 1841

Source: Australian, 2 March 1841

SUPREME COURT - (Equity Side)

            SATURDAY. - The following important decision was pronounced by the Chief Justice:-

            This was a bill by the next of kin of Matthew Mocklar, instituted against the administrator and administratrix "de sont tort," and against the administrator "de bonis propries," praying an account of the goods and chattels of the intestate. The case was this, Matthew Mocklar, a veteran private soldier of the 75th regiment, died intestate on the 5th Nov,. 1822, in the actual possession of certain premises near the Bridge in Parramatta, leaving his widow and two daughters surviving him. One of the daughters, Mary, is now married to the complainant Timothy Regan, and the other, Judith, is an infant under twenty-one years of age. The widow, Hannah Mocklar, remained in possession of the premises in Church-street, after her husband's death, and, on the 30th June, 1823, being so in possession, obtained a lease of the land from the crown in her own name, as a "femme sole" that is to say, without any addition either of widow, spinster, or single woman for twenty-one years, with liberty to convert the lease into an absolute conveyance in fee, on condition that buildings to the amount of £1000 should be erected thereon. The widow without taking out letters of administration, took possession of her husband's personal effects, converted them, and paid his funeral expenses, and debts exceeding according to the account now rendered, more than his personal effects were worth. In 1826, the widow married the defendant, Richard Webb, and he came into the possession of the premises so leased, in 1823 to his wife; and with his own proper monies has since erected buildings thereon, as alleged to the value of £1000. The object of the present bill is to have the defendants decreed to be trustees of this property, to the use of the intestate daughters as personalty, it being contended that they are equitably entitled to such a decree, and praying an account against their mother and step-father, as administrators "de sont tort"; and also an account against Hugh Taylor, who has lately taken out letters of administration, as personal representative of the intestate. The answer of the latter admits him to be administrator, but no effects of the intestate appear to have come into his hands. The real point in dispute is whether the premises in Church-street on which the intestate died, and which are in possession of the defendants, Mr and Mrs Webb, in virtue of the lease from the Crown to Hannah Mocklar, are to be decreed assets in the hands of the defendants, and distributable for the benefit of the next of kin. According to the proof, before me, the intestate was an habitual drunkard. In August, 1804, Governor King granted a lease of the premises in question for fourteen years to one James Harrex, and on the 10th of November, 1809, Harrex assigned his interest therein for valuable consideration to one Phelps, and Phelps assigned his interest to one John Jones, and on the second of February, 1822, four years after the first lease had expired, Jones in pusuance of an agreement of that date, sold his interest in the premises to the intestate, in exchange for a fifty acre farm of the intestate supposed to be situate in the district of Castle Hill. Jones was a tanner by trade, and in pursuance of that agreement, Mocklar entered into possession of the premises, with the buildings erected thereon. His wife and children resided thereon, whilst he was doing duty as a soldier, with a detachment of the 75th regiment at Windsor. Incoming from Windsor, he fell from a bullock cart and was carried to the premises disabled, and remained there for a few days before he died, in November, 1822. At the time of his death there were some slabbed buildings on the land. After his death his children were taken into the orphan school, his wife remaining in possession, until her marriage with Webb, who also then took the children and maintained them until the eldest married the complainant Regan, and the infant daughter is still maintained by him. The deceased was in needy circumstances, and did not appear to be possessed of any property. The wife was an industrious woman, and according to the testimony of Mr. James Byrnes, in those days any person in possession of land, was considered the owner and obtained a lease from the Crown, and after the husband's death Mrs. Mocklar remained, and she had such a possession as to entitle her to a lease according to the then practice. There is one building now remaining on the land, which was there in the time of Mocklar's possession, and which is now used as a shed. After the marriage, the defendant Webb sent the children to school at his own expense, and in point of treatment he observed no difference between them and his own children by the second marriage. The defendants, by their answer, admit that the lease was granted to the widow Mocklar in her own name, previous to her marriage with Webb, but without any solicitation on her part, otherwise than by consenting to accept a lease thereof, on the intimation of the Crown Surveyor to her that the Crown would grant such a lease to her, subject to the performance of certain conditions, to which she acceeded. The question then is, whether, under the circumstances of this case, a Court of Equity will treat the defendants as trustees of this property, to the use of Mocklar's next of kin, and regard the value of the lease as assets distributable amongst the children. Were the premises now freehold it is sworn by Mr. Byrnes, they would be worth £1500 or £1600. There can be no doubt that, as against Jones, the intestate had originally a lawful possession, in consideration of the exchanged farm; but, as against the Crown, the lease to Harrex, having been then expired four years, might be another question. Had the Crown turned Mocklar out of possession as an intruder, he might have had this remedy over against Jones, but the Crown does not treat him as a trespasser, he is allowed to remain in possession until death, according to the practice of those days as sworn to by Mr Byrnes, the bare possessor of land was regarded as the owner, and would be entitled on application to a lease. After his death; his widow remaining in possession, not in virtue of any original possession of her own, but as the widow of a husband who had given valuable consideration for the right of possession. The husband therefore is the meritorious fountain or source of her right of possession, and in virtue of which she kept it after his decease. Had her husband continued to live he might have perfected his title by obtaining a lease in consideration of his prior possession, but in six months after his death she applies, being in possession, and obtains a lease from the Crown for twenty-one years in her widowed name, though not as a widow. Under what circumstances that lease was granted does not distinctly appear. If the Crown was induced to renew the lease in consideration of her being the widow of a man who had originally possessed himself of by a bonâ fide exchange of land with Jones, this would show that the rights of the husband were had in view, and that the wife derived her claim to a lease only through her husband. If she were a mere stranger or a single woman, and had had an original possession of her own, I own the case would be different, but in equity I cannot discover the relation by which she continued in possession after the death of her husband, through whom alone her right of possession commenced. In this stage of the case, I am not however to be considered intimating any decided opinion. It is clear this case must be referred to the master. One of the complainants is an infant, and she at all events would be entitled to call upon the administrators to account. The defendant, Mrs Webb, admits herself to be administrix, de sont tort, and although she may have duly administered the mere personal chattels which came to her possession, still she must account now that she is called upon.

            I now order and direct that it be referred to the master, to take an account of what real and personal estate the intestate died seized and possessed of, respectively; and that the master do specially report under what circumstances the lease of the premises in Church-street, Parramatta, was granted to Hannah Mocklar; and that he be at liberty to make such other report as he thinks proper, on any part of the case.

Published by the Division of Law, Macquarie University