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

In re Wilson [1847] NSWSupC 39

equity, guardianship

Supreme Court of New South Wales

Stephens C.J. and Therry J., 5 May1847

Source: Sydney Morning Herald, 6 May 1847, in Supreme Court Collection, Vol. 1, p. 111


Before their Honors the Chief Justice, and Mr. Justice Therry.

This side of the Court was opened at half-past eleven o'clock, when His Honor the Chief Justice stated, that it was originally intended to have delivered several judgments, but owing to the pressure of business which their Honors had had to encounter since the week began, it had not been in their power to get any of them ready, except that in the matter of Rosina Wilson, which he delivered as follows:-

We have considered, in connexion with the Master's two reports, and his reasons in support of them, the voluminous evidence in this matter, and have conferred together on the proper course to be pursued, in a case which has been one of no small anxiety to us, and which is, indeed, all the circumstances being considered, full of difficulty. We have seen and conversed with the young person, who is the object of the contest between the two excepting parties; and it is manifest to us, that she is not competent to make a discreet and well considered choice for herself in this matter. The duty of deciding for her, therefore, having regard to her own best and highest interests, devolves entirely on the Judges. After full deliberation, we are not prepared to select either of the two parties, by whom the question has been litigated hitherto. There are, in our opinion, all things being taken into account, the religion of the infant, her own particular predilections and prejudices, the society for which she is entitled to be educated, and other considerations which we think it inexpedient, in this place, to do more than simply advert to-insuperable objections to each of the candidates. On the other hand, we entertain a strong repugnance, considering the additional expense of such a proceeding, to send the case down for third enquiry. Our determination is, therefore, to abstain at present from making any order in this case. It will be open to any person, (on his own responsibility, of course,) to apply to us in the mean time by petition, supported by proper affidavits, for an appointment in his favour; and should an unquestionably eligible person offer himself, to whom no reasonable objection can be made, we shall take on ourselves the responsibility of making that appointment. We have to add, that we cast no imputation, on either Mr. Norton or Mr. Heydon, respecting the course taken by them in this matter: and it would certainly, bearing in mind the reports made in favour of each, be impossible to say that either could, with justice, be deprived of his costs. We conceive that the costs incurred by each, considering that neither is wholly a volunteer in the business, should be paid out of the estate: and we shall be prepared to order that their costs respectively be taxed to them accordingly. The payment of these, however, must be postponed to that of the infant's allowance; which will of course be paid in full.

Published by the Division of Law, Macquarie University