Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 (18 October 1960)

HIGH COURT OF AUSTRALIA

BLORE v. LANG [1960] HCA 73; (1960) 104 CLR 124

Testator's Family Maintenance

High Court of Australia
Dixon C.J.(1), Fullagar(2), Kitto(3), Menzies(2) and Windeyer(4) JJ.

CATCHWORDS

Testator's Family Maintenance - Application by testator's daughter - Testator survived by eight children - Three children including applicant excluded from benefit under will and codicil - No reason for applicant's exclusion - Doubt as to value of estate - Adequate provision for proper maintenance education or advancement in life - Equality among children considered as basis for order - Testator's Family Maintenance and Guardianship of Infants Act, 1916-1954 (N.S.W.), s. 3.

HEARING

Sydney, 1960, August 8, 9;
Melbourne, 1960, October 18. 18:10:1960
APPEAL from the Supreme Court of New South Wales.

DECISION

October 18.
The following written judgments were delivered:-
DIXON C.J. This is an appeal by an executor against an order made by Myers 1916-1954 ordering that the respondent do receive a legacy of 5,000 pounds charged upon the whole estate of the testator, with a specific exception, and that the legacy should bear interest from the date of the order. Although it is an executor who appeals from the order the appeal involves only his own beneficial interests; for after the death of the testator and before the respondent commenced her application to the Supreme Court he acquired by purchase from the beneficiaries of the estate charged with the legacy, the whole of their beneficial interests therein. The appellant is the eldest of a family of eight children whom the testator left him surviving when he died on 14th January 1957 at the age of sixty-five years. The respondent is the second child and eldest daughter. No disposition in favour of either of them is contained in the will and codicil, which documents both bear the same date, namely 29th June 1955. The appellant by that time had made his way in life and for that reason and perhaps for the additional reason that his father had assisted him to the extent of 1,000 pounds he may have been considered by the testator to need no further benefaction from him. But no such reason could apply to the respondent who, though married, apparently happily, to a husband employed on the staff of a well-known pastoral house at a remuneration adequate for the subordinate position he holds, possesses no means of her own and is entirely dependent on her husband's earnings, as also are her two children. She was on good terms with her father and no ground is disclosed or suggested by the evidence why her father omitted her from his testamentary dispositions. The testator was an illiterate man who had spent his life in the north-west of New South Wales where he held some 89,693 acres under Western Lands Leases and a little freehold. At the time of the respondent's birth the area held had been smaller. Her early life, in common with the rest of the family, had been a hard one and until she was eighteen years of age she contributed her share and more to the work of an outback homestead and an ever increasing family of brothers and sisters. At eighteen she went away to learn nursing but was intermittently recalled until in her twenty-sixth year she married. Her mother died in March 1948 but for nearly two years before her death the respondent and her husband lived and worked in the neighbourhood of the station. They moved to Swan Reach in South Australia where the testator came to stay with his daughter on five or six occasions. (at p127)

2. At the time when he made his will his youngest child, a son, was within a few months of attaining full age. He had one other daughter besides the respondent; she was about twenty-seven years and had married a man who was well-off. By his will the testator gave the whole of his estate to this daughter and four of his six sons, whom he named, in equal shares. The baptismal name of the daughter is not correctly given and her maiden and not her married name is used. Notwithstanding the age of his children and the nature of his dispositions there is a power for the maintenance advancement education and support of any infant, a power to lease and a power to carry on any station property in which the deceased might be interested at the date of his death. There is a mistake in the order of the names of the executor and omissions in other names. In other words the will shows signs of the draftsman's information being perhaps incomplete. Then there is a codicil executed on the same day as the will making a devise outside the family, of a house the testator owned in Broken Hill. (at p127)

3. For the purpose of death duties the value of this house was put down at 2,005 pounds, the value of the station less stock vehicles and plant at 30,458 pounds and a life insurance policy at 1,283 pounds. From this secured debts amounting to 8,124 pounds 10s. 0d. were deductible and unsecured debts amounting to 2,828 pounds, leaving the net dutiable amount at 22,793 pounds. If you deduct 2,005 pounds for the house at Broken Hill it leaves 20,788 pounds as the "probate value" of the property divisible under the will among the four sons and the daughter to whom it was devised and bequeathed in equal shares. In consequence of an inchoate transaction into which it is unnecessary to go the appellant executor decided, after the testator's death, to buy out these beneficiaries giving 6,000 pounds for each share, and this he did. On the face of the transaction it looks as if it left him with the burden of paying the secured and unsecured debts of the testator, but it may be doubted whether it was so understood by the appellant or his advisers. However it is clear enough that the amount of the legacy which the order appealed from makes payable is charged on the assets comprised in the shares which the appellant has purchased from his brothers and sister who are named as beneficiaries. (at p128)

4. Now the first question which s. 3 (1) of the Testator's Family Maintenance and Guardianship of Infants, Act 1916-1954 sets for the court is whether the testator disposed of his property, either wholly or partly by will in such a manner that his daughter, the respondent, was left without adequate provision for her proper maintenance education or advancement in life. It is upon the fulfilment of the condition expressed by these words that the authority of the court to intervene depends, its "jurisdiction" as it is commonly expressed with more respect for the language of Chancery tradition than for juristic theory. The nature and effect of the condition has of course been much examined judicially. It is settled that you look at the circumstances as they were at the time when the testator died and not at the time when the application is made to the court. But the contingencies which a testator ought reasonably to have foreseen are not to be left out of view: Dun v. Dun [1959] UKPCHCA 2; (1959) 100 CLR 361 (PC); (1957) 99 CLR 325 (HCA) . The words "advancement in life" have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: McCosker v. McCosker [1957] HCA 82; (1957) 97 CLR 566 . But all the circumstances must be weighed and they include the size of the estate and the claims of the members of the testator's family and others upon his consideration. The section speaks of the testator's having left the applicant without adequate provision for her proper maintenance and advancement in life and in this the words "adequate provision" and "proper" must be given their full value. Cf. Bosch v. Perpetual Trustee Co. (1938) AC 463, at p 476; (1938) 38 SR (NSW) 176, at pp 184, 185 . Some moral claim to which a wise and just testator might be expected to respond must exist, but it may arise out of relationship. Cf. In re Ruxton (1946) VLR 334 , Fullagar J. "The Act is . . . designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty" per Salmond J. in In re Allen (Dec'd.); Allen v. Manchester (1922) NZLR 218, at p 220 , approved in Bosch's Case (1938) AC, at p 479; (1938) 38 SR (NSW), at p 187 . (at p129)

5. In this case the circumstances of the five children in whose favour the testator disposed of his property and of the three whom he excluded were dealt with in the affidavit evidence. The respondent herself began with an attempt to show why the hardships of childhood and early life and the services she then rendered to her parents in the household and in the life of the station added to her deserts as a daughter whose claim should have been recognized by her father. It has been said that the tendency of the modern world has been to elevate the importance of knowledge administrative capacity and scientific and technological skill above the place which property took in the social order. But if so the tendency has not spread to the western outback. For the respondent's claim to share in her father's property excited the most uncompromising opposition. Her claim to merit was traversed in detail by her brother who is the appellant and her sister and another brother. The details brought into controversy went outside the bounds of good sense and, as to one matter, outside the bounds of proper feeling and filial piety. But in the result it appeared with sufficient clearness that for no declared or ostensible reason the testator had omitted entirely from his dispositions a dutiful daughter whose deserts were not small, who shared, as it seemed, in his affections and who had exchanged her youthful robustness for a very different physical condition. Under cross-examination the appellant agreed that she had been a healthy, strong, vigorous Australian girl, "absolutely" to use his own term, that now at the age of forty-one she was no longer a vigorous type of woman - "absolutely not" - and that life had dealt harshly with her from her physical appearance. He would not agree altogether that her efforts in the early years had affected her, but he did agree that they had affected her to some extent. (at p129)

6. What in the end must be a decisive consideration is the "adequacy" of the economic "provision" with which in these circumstances she was left; that economic provision being nothing but a condition of complete dependence on her husband with no defences against the risks and contingencies to which they might both be exposed. (at p129)

7. Upon the foregoing facts the conclusion of Myers J. that she was entitled to an order was clearly right. Whether her omission as a beneficiary was due to some defect of the testator's judgment or some accident in the instructions for his will or how otherwise it may be accounted for is immaterial. It meant that the testator's obligation to her was undischarged. But then follows the more difficult question of the correctness of the course taken by Myers J. in ordering that the respondent receive a legacy of 5,000 pounds. (at p130)

8. Once it is decided that the case is one in which the Court may make an order providing for the applicant, the question what provision ought to be made depends on somewhat different considerations. For it must be determined according to the circumstances that obtain at the time the application is before the Court. In that it is unlike the former question. By the time the respondent's application was made the appellant had contracted to buy the shares of his four brothers and his sister but that does not seem to be a relevant matter except in so far if at all as it may evidence the real value of the testator's estate. Exactly why Myers J. fixed 5,000 pounds as the amount of the legacy the respondent should receive is the subject of some dispute. Myers J. took the appellant as admitting in the witness box that, putting aside the house at Broken Hill, the estate was worth 30,000 pounds, but the transcript of the appellant's evidence does not seem to bear that construction. In stating the order he would make his Honour said this: "I cannot but feel that the testator did owe a moral duty to the applicant and a duty at least as great as the duty he owed to any of his children. In those circumstances it seems to me that the amount which he should have provided for her must be the same amount as he provided for his other children. I think if they are all to be regarded as equally entitled, she is equally entitled to share with them so that she should have taken a one-sixth share of her father's estate. Rather than make an order in that form which might cause some difficulties in view of the events that have happened, I think the proper order would be to give her a legacy equal to a one-sixth share. I therefore order that the applicant receive a legacy of 5,000 pounds charged on the whole of the testator's estate except the real property in Broken Hill; such legacy to carry interest only from this day". In attacking this exercise of discretion the appellant contends that his Honour was mistaken in taking equality as a basis and erred in taking 30,000 pounds as the net value of the estate - and further contended that, considered simply as a provision for the respondent, the amount is excessive. It is in this part of the case that the real difficulty lies. It seems fairly evident that the parties, perhaps because their attention was so absorbed in mutual personal controversy, never did bestow enough care in laying before the Court the materials for estimating the real value of the estate whether at death or at the time when the application came to be heard. It was thought enough, so it would seem, to state what values where submitted for death duty and categorically to restate those values. Perhaps in the exercise of this difficult jurisdiction of the Supreme Court some guess work is unavoidable, but to take measures to reduce that element and to enforce the tradition of ascertainment of facts secundum allegata et probata might be the proper course for this Court to adopt in its appellate jurisdiction. But when all is said and done we are dealing in this case with an appeal in adverse litigation between parties although it does arise in the probate jurisdiction. Ultimately the matter to be decided is whether 5,000 pounds is too much. I do not think that in substance the discretion of Myers J. in fixing it was exercised by any arithmetical process. It was done by a consideration of the whole circumstances, though certainly including in the consideration a comparison with the position of other children. It is not a sum that strikes me as in itself too large if all the material before the court is collated and weighed. It may be unfortunate that in the events that have occurred since the testator's death the incidence must be upon the appellant, but that cannot affect the matter. In the end after a full consideration of the case I have come to the conclusion that it is not such a sum as to justify the interference of an appellate Court with the amount. (at p131)

9. I think that the appeal should be dismissed. (at p131)

FULLAGAR AND MENZIES JJ. This appeal from an order of Myers J., made under the Testator's Family Maintenance and Guardianship of Infants Act, 1916-1954, giving the applicant (who is the present respondent) a legacy of 5,000 pounds out of the estate of her deceased father, presents some unusual features. (at p131)

2. The deceased was a grazier near Tibooburra in the far north-west of New South Wales. He was an illiterate man who for most of his life had known hard times but who had been more successful in his later years. When he died, his property consisted of a station, "Whitta Brinnah", comprising a small area of freehold and nearly 90,000 acres of Western leaseholds together with stock, plant and vehicles, a freehold house in Broken Hill and a life policy. The house in Broken Hill was worth 2,000 pounds and the life policy 1,282 pounds . The value of the station, with its stock and plant, is in dispute, and to this we shall have to return. (at p131)

3. The deceased, who died in January 1957 aged sixty-five years, left surviving six sons and two daughters ranging from twenty-two to forty-one years of age. His wife had died in 1948. By his will made in June 1955, he appointed his eldest son, Matthew George, as executor and divided his estate - except the house in Broken Hill, which he devised elsewhere - in equal shares between four sons and one daughter. The applicant, the eldest daughter, then aged thirty-eight, was one of the children omitted from the will. Until she was eighteen she had lived on the station, sharing its work and its hardships. His Honour said that the family had had "to endure a life of great loneliness and hard labour, and even for a country like Australia, unusual hardship. I do not think that she" (i.e., the applicant) "can truthfully be said to have done any more than any other member of her family in the sense that during this period all the children did what they could to keep the property going and to look after their parents and each other, but being older she had to work harder and endure more than the younger children." In 1936 she left home to work in neighbouring towns and earn her own living. She married in 1944 and has two young children. Her health is not good, and during the past seven years she has been in hospital on no less than eight occasions. Her husband is a manager employed by Dalgety & Co. Ltd., first at Swan Reach in South Australia and now at Wilcannia, and his remuneration is about 1,500 pounds a year. She and her husband have practically no assets. Her situation is no better than that of any of the beneficiaries and is worse than that of some. She was, it seems, always on good terms with her father, who in 1956 gave her 150 pounds and a tea service. The deceased visited the applicant from time to time and last stayed with her in 1956. There is no explanation for her omission from the will. It may be added that there seems to be no explanation why a brother, Gerald, was also omitted, although there may have been some reason for the father's making no provision for his eldest son, Matthew George, who owned a neighbouring property, Lake Stewart Station. However that may be, the evidence disclosed no reason why it was that five children, and five children only, were selected as beneficiaries. (at p132)

4. In these circumstances, Myers J. found that the applicant was left without adequate provision for her proper maintenance, and with that conclusion we agree. A survey of the family life, of the positions of the various members of the family when the will was made and when death occurred, and of the deceased's estate, indicates that the testator did fail to appreciate the claim of the applicant to assistance. The provisions of the will itself, the mis-naming of children therein, and the fact that it was only by codicil of the same date that he disposed of the Broken Hill property to a Mrs. Byrne, who with her husband had worked at "Whitta Brinnah" and whose son had lost an eye there, all seem to us to reinforce the view that in making his will, the deceased did not give the consideration that was to be expected to his testamentary dispositions and paid no attention to the needs of the members of the family. The appellant's contention that no order should have been made cannot therefore succeed. (at p133)

5. The provision which his Honour made for the applicant - viz., a legacy of 5,000 pounds - was determined by reference to a series of transactions that took place in July 1957 when the executor, Matthew George, bought from each of the five beneficiaries his or her share of the estate for 6,000 pounds - i.e., a total of 30,000 pounds. On the basis of these sales, his Honour fixed the net value of the estate, apart from the Broken Hill house, at 30,000 pounds. His Honour then considering that the applicant should have been a beneficiary equally with her four brothers and her sister, gave her one-sixth of the value of the estate - i.e., 5,000 pounds. Even if his Honour had been correct in concluding that the applicant was entitled to one-sixth of her father's net estate - and to this we shall return - we are not satisfied that the evidence as a whole justified the value of 30,000 pounds which was adopted as the basis of calculation. From what we have said, it appears that the executor did in July 1957 pay a total of 30,000 pounds for the assets of the estate less liabilities, but we do not regard those transactions as constituting a reliable guide to the value of the station property, stock and plant, either at the date when Matthew George made his purchases or at the time of the hearing of the applicant's application - and the latter is the date when, in an ordinary case, the value of the estate is to be ascertained : In re Borthwick ; Borthwick v. Beauvais (1948) Ch 645 , per Lord Greene M.R. (1948) Ch, at p 651 ; Coates v. National Trustees Executors and Agency Co. Ltd. [1956] HCA 23; (1956) 95 CLR 494 , per Kitto J. (1956) 95 CLR, at p 528 . In December 1956 the deceased had agreed to sell "Whitta Brinnah" as a going concern to his son Francis for 30,000 pounds, of which 10,000 pounds was to be paid to creditors and the balance, 20,000 pounds, at the rate of 1,500 pounds a year without interest. Had this sale been carried out, the price of the assets less liabilities would have been 20,000 pounds. Moreover, after the death of the deceased, the branch manager for Dalgety & Co. Ltd. at Broken Hill valued the station, livestock, motor cars and vehicles and plant at about 30,000 pounds for probate purposes, but the deceased had debts that can properly be described as station debts amounting to about 11,000 pounds. The bargain that Matthew George made really obliged him to pay nearly 45,000 pounds for "Whitta Brinnah" as a going concern - i.e., debts (11,000 pounds), duties and other liabilities (3,700 pounds), and 30,000 pounds to the beneficiaries. It is true that in ordinary circumstances such sales (even although, being sales to an executor, they might be expected to be at top prices) might be regarded as a safe guide to value - as his Honour did regard them - but it is apparent from the evidence that Matthew George himself and those conducting the case before Myers J. were under the impression that what Matthew George was paying was the same amount as that for which the deceased was prepared to sell, and his son Francis was prepared to buy, "Whitta Brinnah" as a going concern some six or seven months earlier. A misapprehension of this sort might not be regarded as having great significance if there were good reason for thinking that Matthew George fully appreciated the value of what he was buying, but the evidence points rather the other way. His evidence, with that of his brother Francis, suggests that he understood the latter's arrangement with the deceased and that he believed he was making an arrangement to the same effect with his brothers and sister who were beneficiaries. Like the rest of the family, Matthew George had little schooling - nine months at a convent in Wilcannia - and it is not difficult to see how the misapprehension might arise. We have already adverted to the fact that it was an error into which counsel who was cross-examining Matthew George, himself fell. We think, therefore, that upon the evidence as a whole it was wrong to make provision for the applicant on the footing that the net value of the deceased's estate without the Broken Hill house was 30,000 pounds. The provision of 5,000 pounds could not, therefore, be sustained even upon the basis that the applicant was entitled to one-sixth of the net value of her father's estate. (at p134)

6. However, in our opinion, this basis is itself wrong. The jurisdiction conferred by the Act is to interfere with the testator's dispositions when he has left a member of his family without adequate provision for his or her proper maintenance, etc., and the extent of the interference authorized is to order such provision as the court thinks fit for that person's proper maintenance. Bad conduct or character may disentitle a member of the family to needed assistance, but good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court. Nor, in a case where a testator has chosen to dispose of his estate according to his inclination, ought the generous treatment of a child who has no need of the testator's bounty be used to determine the provision to be made for a child whose need has been disregarded or overlooked. The measure to be applied is not what has been given to the one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case. The Testator's Family Maintenance Act is legislation for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of what may appear to the court to be a fair distribution of a deceased person's estate among the members of his family. As has been said in another context, the Act is to provide maintenance, not legacies. Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same. This is not such a case, and the provisions made by the will, as to some children at any rate, could not properly be regarded as provision for maintenance. The testator, independently of need, has chosen to confine his bounty to five of his children. There is, therefore, no justification for using the gifts so made as the measure of the provision to be made for one to whom nothing has been given, but who should receive something for her proper maintenance. (at p135)

7. In such a case as this, where the applicant is a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort, her need is not for the bread and butter of life but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit. The kind of provision that we think the deceased ought to have made for the applicant is a gift of a sum of money that she could invest to give her a couple of hundred pounds a year of her own, together with the additional security of a little capital, or would provide half the purchase price of a small property of the sort described by the applicant when she said that she knew of properties that would suit her and her husband that had been sold at a price in the vicinity of 6,000 to 8,000 pounds. In all the circumstances, we regard 3,000 pounds as the minimum provision that the testator should have made for the applicant by his will. Such a gift would, we think, have discharged the deceased's duty to his daughter, although, so far as the evidence shows, he might well have treated her with greater generosity. This, in the absence of any change in circumstances between the death of the testator and the date of the application, is, therefore, the sum which, as a matter of discretion, we think should have been fixed by the court rather than the 5,000 pounds that his Honour did fix. (at p135)

8. However this may be, we would not have considered it proper for an appeal court to interfere with the award of 5,000 pounds made by Myers J. had his Honour made that provision by applying correct principles rather than by applying the principle of equality to an unsatisfactorily-based valuation of the deceased's estate. As this was not the case, however, the order that was made cannot stand, and we think we may properly substitute for it our own estimate of the provision that ought to be made. (at p136)

9. It is for these reasons that we would allow the appeal and reduce the provision for the applicant from a legacy of 5,000 pounds to a legacy of 3,000 pounds. (at p136)

KITTO J. In my opinion the learned judge (Myers J.) was clearly right in deciding that the respondent, the applicant in the proceedings before him, had established a case for an order making adequate provision for her proper maintenance out of the testator's estate, particularly having regard to her state of health and the need for maintenance which the testator seems to have recognized from time to time during his lifetime. (at p136)

2. A much more difficult question is whether the order which his Honour made should be disturbed. It was made in exercise of a discretion which, as his Honour recognized, required consideration of all the circumstances existing at the date of the order. The language in which his Honour expressed his reasons for thinking that the applicant should receive a sum approximately equal to one-sixth of the estate is open to the construction that equality of treatment as between the applicant and the five children mentioned in the will was the proper standard to apply, simply because the testator had thought it right to apply equality as between the five children whom he mentioned. If that were what his Honour meant, it could not be supported. But the more likely meaning of the relevant part of the judgment seems to me to be that an equal division of the estate would give the respondent no more than in all the circumstances was sufficient to provide for her proper maintenance, having regard to the value of the estate and the fact that the children who had been made beneficiaries had no greater moral claims upon the testator than she. (at p136)

3. If the net value of the estate at the date of the order was 30,000 pounds, as his Honour took it to be, I should think that the order was within the limits of a sound discretionary judgment, and that there was no ground for intervention by a court of appeal. Unfortunately, the material before his Honour on the question of value was far from satisfactory. The appellant, although he is the executor, did no more to assist the Court on this aspect of the case than to put in as evidence (and it was not objected to) a valuation which had been made in 1957 for probate purposes; but there was no affidavit from the valuer bringing his opinion up to date, and he was not made available for cross-examination. Apart from that there was only the evidence, to which the learned judge gave a degree of weight which apparently the appellant's advisers had not anticipated, as to proposed and actual transactions between members of the family. The transactions were of a nature which called for care in using them as helpful in determining the value of the assets. In particular, the circumstances were such as to make it doubtful whether all relevant factors had been fully understood and properly weighed by the persons concerned. I am by no means convinced that his Honour's conclusion that the estate was worth 30,000 pounds was incorrect - there is, after all, some probability that, whatever else the appellant may have failed to understand, he did understand how much money he was paying and what he was getting for it - but I have been much exercised as to whether the conclusion rested upon too insecure a foundation to be accepted as a sound basis for an order. There is something to be said, I think, for remitting the case to the Supreme Court to enable the question of value to be further investigated; but in view of the conclusions expressed in the judgments which have already been delivered, there is no point in my considering that course further. (at p137)

4. I do not think that there is any ground on which a court of appeal would be justified in reducing the provision made for the respondent, and I am therefore of opinion that the appeal should be dismissed. (at p137)

WINDEYER J. The jurisdiction under the Testator's Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasized at the expense of evidence directed to the central issues in the case. That to some extent happened here. The applicant did, however, establish that, in all the circumstances, including the state of her health and her husband's limited resources, her father had failed to recognize by his will a moral obligation to make some provision for her. It is not disputed that the testator had always been on good terms with her and her husband. She had been a good daughter, and her father had so regarded her. He had assisted in meeting the costs of medical treatment for her and had thus recognized her needs and her moral claims upon him. (at p138)

2. Once the condition that the Act imposes for enabling the court to intervene and direct some allowance for an applicant is satisfied, then, in my view, the amount that should be allowed is very much a matter for the judge who hears the application. It is, I think, not often that this Court should substitute some other order for the provision that the trial judge in his discretion has made. In the present case I do not think that five thousand pounds was necessarily an improper sum for the learned judge to allow to the applicant if his estimate of the value of the testator's estate was correct. The evidence does not satisfy me that some other particular sum would, in the circumstances, be more proper. Nevertheless, I have doubts - the same doubts, I think, as my brother Kitto has expressed - whether the learned judge had satisfactory evidence before him of the value of the testator's estate, and whether he drew the correct conclusion from such material as he did have. I was therefore inclined to think that the matter should go back to his Honour for his further consideration of what is, after all, a matter of fundamental importance in every application under the Act, namely the true value of the estate of the deceased. But other members of this Court do not think this course appropriate in this case; and it was not sought by the appellant in his notice of appeal. Moreover, by the rules made under the Act it is the duty of the executor to file an affidavit "setting out the nature and amount of the estate". In the circumstances, therefore, I am prepared to concur in an order simply dismissing the appeal. (at p138)

ORDER

Appeal dismissed with costs.