Skip to Content

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

Farrington v. Taylor [1847] NSWSupC 26

infancy, trusts

Supreme Court of New South Wales

May 1847

Source: Sydney Morning Herald, 7 May 1847, in Supreme Court Collection, Vol. 1, pp 111-112

His Honor pronounced Judgment in this case as follows:-

This is a bill filed by William Farrington, of Pyrmont, the father and next friend of Thomas Charles Farrington, an infant, being of the age of eighteen years or thereabouts, against Hugh Taylor, of Parramatta, and William White, praying that the defendant Taylor may be decreed to account for the rents and profits of certain houses belonging to the estate of the infant, received by him, or but for his wilful default might have been received; and that the said Taylor may be declared to have committed breaches of trust in not having applied the said rents and profits upon the trusts of the will of Richard Farrington. The bill further prayed that the defendant Taylor may be discharged from acting in the execution of the trusts of the will, that some other person may be appointed a trustee in his place and stead-that a receiver may be appointed of the rents,-and that Taylor be removed, and restrained by injunction from receiving the same.

From the statement in the Bill, admitted by the answer, it appears that in May, 1834, one Richard Farrington conveyed to the defendants, Taylor and White, certain parcels of land in Parramatta, in trust that they should pay and apply so much of the rents and profits as might arise therefrom, as to them should seem necessary and proper to the education, maintenance, and to the placing out to trade or business Thomas Charles Farrington and Priscilla Farrington (the latter since deceased) until they should arrive at the ages of twenty one years, when the said hereditaments should be released to them as tenants in common. In May, 1837, Richard Farrington made and published his will, by which he confirms the conveyance in trust for T.C. Farrington, Priscilla Farrington (being then deceased,) and further directs that if T. C. Farrington should die before he attained his twenty first year, the houses and premises should become the property of Hugh Taylor and William White, share and share alike. The testator died a few days after the making and publishing of this will, without revoking it. Taylor, it is admitted, alone acted in execution of the trusts of the will, and received the rents of the houses, and it is against him alone that complaint is now made for not applying a necessary and proper portion of the profits in the education and maintenance of the minor, and in placing him to trade or business. There is a complaint of Taylor's refusal to account satisfactorily for the rents and profits, though repeatedly urged to do so by Mr. Venour, the plaintiff's solicitor-of his mixing the rents and profits with his own monies-and of his pretending that he is applying the rents and profits in rebuilding and repairing the erections and buildings upon the premises. There is a further charge of Taylor permitting his son-in-law to occupy one of the houses, on the pretence that he, Taylor, cannot let it, and of his unwillingness to account unless undue charges for the collection of the rents made by him be allowed. There are other charges for misconduct, but those I have enumerated constitute the principal items of complaint. The answer of the defendant Taylor contained a general denial of the charges, and expressed a readiness to account at any time that he was required to do so, provided he had been allowed a reasonable sum in compensation for what, in a letter, he calls "looking after the business of the estate." The journies he had taken on behalf of the estate, and the various expenses incident to its management incurred by him. So far from being indebted to the estate, he claims a balance in his favour;-but whatever may be the result as to the side on which the balance shall be found to be ultimately due, there does not appear before me sufficient evidence of misconduct on the part of Taylor to warrant me in directing his removal from the trusteeship. The estate is a small one,-yielding rental only of about £74 a year,-and it is to be regretted that its management could not be conducted without the intervention of a Court of Equity. No evidence was offered in support of several of the charges contained in the bill, such as the permission of his son-in-law to occupy the house on pretence of his not being able to let it, and of his mixing his monies with those of the infant, in the sense in which it is charged; and although the infant's mother speaks of a very small sum having been to her knowledge paid on the infant's account for the last three years, she does not undertake to say that no more was expended in his support and maintenance. By the evidence of Taylor's co-trustee White, it is conceded that Taylor has kept the premises in good repair, and without some knowledge of the state and condition of the premises it is impossible to say what sum should be deemed a sufficient one for the purpose. There is also some evidence to show that the minor did not take proper and reasonable care of clothes with which he was provided, and the mere circumstance of his being at a particular time without suitable and sufficient clothes, is not to be regarded as conclusive evidence that he had not been furnished with them. On the whole it requires much stronger grounds than are disclosed in the meagre testimony that has been taken, to justify the removal of a trustee of the testator's own choice from the post of confidence in which he has been placed, and of which, on such testimony, without further inquiry, I cannot undertake to say has proved himself altogether unworthy. The following then is the decree, which upon the case as it appeared before me, I shall deem it requisite to pronounce;-premising, however, that as it would seem the testator's heir-at-law may have a claim to a moiety of the rents and profits during the infant's minority, I make no declaration of the infant's interests.

Ordered-That it be referred to the Master in Equity, to take an account of the rents and profits of the premises and hereditaments described in the plaintiff's bill as four dwelling-houses and premises, situate and being in O'Connell-street, Macquarie-street, and Hunter street, in the town of Parramatta, which have been received by the defendant, Hugh Taylor, or by any one on his behalf since the decease of Richard Farrington,-and also of such parts thereof as but for his wilful neglect and default, he might have received. And it is further ordered, that the Master do inquire into the application of such rents, issues, and profits, as may have come into the hands, or been received by the order, or for the use of the defendant, Hugh Taylor. And that in taking such account the defendant Taylor shall be charged with interest, for such balances as may be found to be in his hands from time to time.

Refer to Master to approve of guardian,-enquire who has maintained infant since the 10th of February, 1843, and what ought to be allowed for past and future maintenance.

Dismiss the bill against the defendant White with costs.

 

Published by the Division of Law, Macquarie University