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

In re Wood [1850] NSWSupC 10 [succession]


Supreme Court of New South Wales

Full Court, 15 April 1850

Source: Sydney Morning Herald, 16 April 1850, Supreme Court Collection, vol. 3, pp 88-89


This was an application to the full Court, sitting in its Ecclesiastical Jurisdiction.

It would seem the deceased, a Port Phillip settler, came to Sydney and put up at the house of one Michael O'Keefe, a publican. The deceased was well supplied with money, having a sum to his credit in one of the banks here; he seems to have been fond of something stronger than water---for, in the course of a few days, he ran up a grog score with O'Keefe to a fearful amount. The end of this drinking bout was, as might be expected, Wood died, and died indebted to O'Keefe in some £40 or £50, partly for a grog score, and partly for board and lodging, money lent, &c.

Within three days of Wood's decease O'Keefe, as creditor, applied for letters of administration to the deceased's effects; in fact, he established his right to them, it having been proved in due form before the Prothonotary that he was a creditor. The letters of administration had been all but issued, when the widow of the deceased set up her right to them as one of the next of kin; this (her claim) was made before one of their Honors in chambers, when it was agreed on either side that he, O'Keefe, should retire and let the widow take out letters of administration; it being further agreed, that if, upon a reference taking place before the Prothonotary, it should turn out that O'Keefe was a creditor to the amount of £10, then he should be paid his costs incurred in endeavouring to get letters of administration, out of the assets of the estate. The Prothonotary had taken evidence in the matter, and found, amongst other things, that the deceased did owe more than £10 to O'Keefe.

Mr. BROADHURST now moved that the Prothonotary's report be confirmed, and that O'Keefe be paid his costs, as aforesaid, out of the first available assets of the deceased's estate.

Mr. FISHER appeared to show cause, contending that it was intended to be referred to the Prothonotary, to ascertain whether the debt was a bona fide one: the debt actually claimed was a balance only;---the original claim having been £67 12s. 6d. The creditor gives credits,---which will more than satisfy that claim, irrespective of the "grog score," and which latter part could not be considered bona fide. Indeed he said it was in proof that O'Keefe had been paid more than he acknowledged;---coupling this fact with others, it was not an unfair inference to draw, that the creditor had been paid the whole sum due: the learned counsel next said that the Prothonotary had improperly received in evidence the testimony of the creditor's wife in support of his claim. Lastly, he submitted that, it was only in cases, where the next of kin had been guilty of great delay in coming in to take out letters of administration, that the Ecclesiastical Courts would allow a creditor's costs incurred in taking out such letters to be paid out of the assets of the estate. In this case there had been no such delay, but on the contrary, the creditor had been guilty of indecent haste in making the application he did.

Mr. BROADHURST replied, stating that the Prothonotary's finding could not now in this stage be impeached. Even if it could, it did not appear, though the testimony of the wife of the creditor had been taken, that he (the Prothonotary) had taken it into consideration. And as to the debt itself, if it should turn out hereafter that there was any legal defence to it, such as that arising out of the provisions of the Tippling Act, yet that did not make it the less a debt; it would only be a defence if pleaded, and it would not bar the debt, but only the remedy by action founded on it. Clearly, therefore, the condition of the order had been performed, and as a matter of course the creditors would be entitled to have the said costs, when taxed, paid out of the first assets of the estate.

The COURT agreed that the Prothonotary's report ought to be confirmed, and that O'Keefe ought to be paid the costs occasioned by his application for letters of administration, having proved that he was a creditor to the extent of £10, out of the assets of the estate. The Court or Judge clearly had the power to make the order in question, referring it to the Prothonotary. If there were any good legal defence to any action that might be brought on the debt, it was still open to the administratix to plead it at the proper time.

Published by the Division of Law, Macquarie University