[succession]

In re Daly

Supreme Court of Van Diemen's Land

Montagu J., 5 June 1835

Source: Cornwall Chronicle, 20 June 1835

The Attorney General applied on behalf of Mrs. Hannah Murphy, that she might be allowed to propound and prove a copy of the will of Mr. Daly, (who died in April 1834), as his original will, or else that letters of administration should be granted to her.

Mr. Gellibrand opposed this motion on behalf of Mr. Somerville and Mr. Williams, creditors of the late Mr. Daly, who, it appeared, died in April last year, leaving two children, who had been born to him by Hannah Murphy, who had lived with him several years. In support of his argument, he produced copies of the affidavits which had been attached to the will, in support of its being a true copy of the late Mr. Daly’s will, amongst which the principle were one of Mr. Joseph Bond Clarke, which stated, that he had been employed by Mr. Daly to make out his will, which he did, and at the same time made a copy of it. Mr. Daly had said he would deposit it in the hands of Mr. R. C. Simpson.

Another was made by Mrs. Murphy, which stated, that Mr. Daly told her he had made his will, and that it was in the hands of Mr. T. C. Simpson.

Also, one made by Mr. E. H. Thomas, which stated, that he had seen the late Mr. Daly within a few days of his death, and asked if he had not better make his will; he told him the proposition was a very just one, and he would speak to him again about it.

Mr. Gellibrand contended if this was a true copy of the will, why was it not produced until last November? But from the death of Mr. Daly up to that time, no such thing as a will had ever been heard of, and then it was produced under the very slender evidence which had now been laid before the Court.

His Honor, Mr. Justice Montagu knew so much officially of Mr. Joseph Bond Clarke, that he could not place any confidence whatever in his testimony.

The Attorney General was very willing to have that thrown out altogether; but he considered it was a very hard case, if the creditors were to come and first pay themselves out of these estates, and then what would they do with the overplus? - why, he suppose it must go into the hands of the Registrar, and then be sent to the Treasury, there to lay useless till the right owner be discovered, which was very likely never to take place.

Their Honors consulted for sometime, when the rule was discharged with costs.