LEARY & ORS. V. CUTTS

©.3978/85

W. M. Houston, Govt. Print., Melb.

IN THE HIGH COURT OF AUSTRALIA

a UBARY & ORS.

REASONS FOR JUDGMENT

Oral Judgment delivered at...8ydney. an on... Wednesday,..29th. August..1956._

LEARY & ORS.

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Ccurrs

JUDGMENT _(0) DIXON C.J. WILLTAMS J.

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LEARY & OHS.

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This is an appeal from a decretal order made by Hardie J. under the Testators' Family Maintenance and Guardianship of Infants Act 1916-1954, The order makes provision for the maintenance of the widow of a testator who died on 21st October 1954, He was a retired hotelkeeper, 83 years of age. Eighteen years before his death, that is to say on 15th April 1936, being then a widower of seven years standing, he had married a lady of about 30 years of age who, at that time, earned her living as a trained nurse. By his first wife he had had children of whom four have survived, two sons and two daughters. They all married and three of them are older than the testator's widow. The two sons are engaged in business and do not appear to be unprosperous. The daughters, so far as appears, seem to be satisfactorily maintained by their husbands, at all events for the present.

The testator's last will was made on 3lst October 1951 and was admitted to probate on 15th April 1955. By this will the testator devised and bequeathed his property 'to trustees upon trust for conversion and directed that the net proceeds should be divided into five equal parts, of which one was to be paid to his widow and the other four were to be paid respectively to his surviving children. His liabilities were few and the net value of his assets was £9,840. The assets included the matrimonial home at 1 Duke Street, Five Dock, which. was valued at £3 00s 0:0, the furniture valued at £202, and a mortgage upon which £6,000 stood invested. Death and estate duties amounted to £713. The widow applied by originating summons