In re MARY relief for about three months. When the applicant and her husband first went to Beerwah her husband worked in the Macnaughton J. Landsborough sawmill and was struck on the chest by a piece of timber. He was treated at the Brisbane General Hospital for some days and could not work for some weeks after. in 1922, whilst opossum snaring, he fell on his knife, which entered his left shoulder. He was taken to the Beerburrum Hospital, where he remained for some time, and it is alleged that he is unable to use his arm properly yet, but it is not stated that either of these injuries is permanent or that they will prevent him in the future from working either at his trade or on the farm. The applicant and her family obviously are in very poor circumstances. The respondent, who is unmarried, in his first affidavit, filed on 22nd February, 1923, says that he is 50 years of age, is a plumber by trade, but is unable to work at that trade or to do any work involving continuous exertion, and for long periods is unable to do any work at all. Since 1916 he has been under treatment for an affection of the bladder; he has undergone nine surgical operations in different public hospitals, and has been forbidden by his doctors to do any manual labour of a strenuous kind. He holds a permit from the Home Secretary to travel free on the railway from Beerwah to Brisbane for treatment, as he is unable to pay the fare himself. He can only read simple words in print and cannot read manuscript or write, except to sign his name. His only property is a perpetual lease, also situated near Beerwah, of an area of 59 acres, 2 roods, its yearly rent being 13s. 5d. He bought it from his brother, T. R. Sharp, in 1919 for £150. It had a two-roomed house on it then, and the respondent has since built additional rooms on to it. The land is poor. One acre has been cleared and planted with orange trees and pineapples, but so far there has been no return from the land, and the respondent is willing to sell the property now for £150. He has a savings bank account which on 26th August, 1921, had a credit balance of £20 7s. 2d. ; that balance was reduced by 28th September last to 2s. 3d. by successive withdrawals, the only credit entry being 5s. Id. for interest. In his letter to his solicitors he says "I was depending on part of the deposit (on the sale of the Lamington Terrace house) for my expenses and food, as I am now quite out of funds. A neighbour is helping me with food." I was informed. by his counsel that he did not appear in Chambers because he could not pay the railway fare from Beerwah. In re MARY SHARP. The applicant, in her affidavit in reply, filed on 27th February. 1923, does not question any of her brother's allegations as to his health. It will be seen that bad as the position of the applicant Macnaughton J. and her family may be, that of the respondent is a great deal worse. The applicant and her husband are in good health, except for the injury to the shoulder of the latter, while the respondent is unable to do any continuous work, and even if he sold the property left to him by his mother for the full value of £850 put upon it, would only derive a very small income from the proceeds. To make any order for the maintenance of the applicant out of this small estate under the present circumstances of the parties would be contrary, in my opinion, to the governing principle of The Testator's Family Mcintenance Act, stated by my learned brother, Shand J. in In re K. (1), to be "to enable an alteration to be made in the disposition of the estate so far, but so far only, as such an alteration may appear necessary to provide for the maintenance of a wife, husband or child, where adequate provision for proper maintenance and support has not been made by a testator himself; but that in giving effect to this principle the Court should interfere as little as possible with the provisions. of the will." The testatrix was well acquainted with the circumstances of the applicant and the respondent, and I see no reason for the Court to interfere with the disposition she has made of her small property, as it was not sufficient to support one person unable to do much work like the respondent. To make an order in favour of the applicant would, in effect, be to make a new will for the testatrix, and it has been decided in New Zealand that the Act is not a Statute to empower the Court do so. Allardice v. Allardice (2), per Stout C. J., at p. 969. first enquiry in such cases must be what is the need of maintenance and support, and the second, what property has the testator left (Ib. at p. 970). In all the reported. cases but one there has been a substantial amount of money in the estate. In Ahearn v. Ahearn (3), it was £7,300; in In re Chapman (4), £15,400; in McGrath v. Queensland Trustees (5), £10,577; in In re K. (6), £8,753; in Re Harris (7), the property passing under the will was £12,000, but the testator had disposed of property to the extent of about £200,000 among his children during his lifetime; and in R. Allardice (8) it was at least £23,000. The only case of a very (1) 1921, St. R. Qd. 172, at. p. 175. (2) 1910, 29 N.Z.L.R. 959. (3) 1917, St. R. Qd. 167. (4) 1918, St. R. Qd. 226. (5) 1919, St. R. Qd. 169. The G 106 In re MARY small estate that I have come across is Re McRitchie (1), before Chubb J. on November 14th, 1917, which is shortly stated at p. Macnaughton J. 195 of Part II. of The Queensland Supreme Court Practice. In view of these cases I understand "estate," in the passage just cited from In re K. (2), to mean an estate reasonably sufficient to provide adequate maintenance for all of the testator's wife, husband or children who are in need of such maintenance, as well as those who are sufficiently provided for by the will. Here, both the applicant and the respondent are in need of maintenance, but the need of the respondent is much the greater, therefore I do not think that the testatrix committed any breach of her parental duty to provide for the maintenance of her children by giving the whole of her small property to the respondent, and must add that, in my opinion, it is a great pity that the matter was brought into Court. The application will accordingly be dismissed. At p. 194 of Part II. A question of practice should be noticed. of the Queensland Supreme Court Practice, it is stated that the practice in Queensland hitherto has been to confine service of the summons to the executor or trustee of the will, although under s. 3, sub-sec. 4, of the Act any person who might be prejudiced by an order may be directed to be represented, and goes on to suggest that it would be wise to apply to the Judge for directions as to the service of the summons upon, or otherwise for the representation of, persons likely to be affected by the order. In my opinion it is most important that all parties who might be prejudiced or benefited by an order should have an opportunity, where it is reasonably possible, of being heard on the application. In simple cases notice should be given in the first instance by the applicant without going to the expense of taking out a summons for directions. As there is at present no money in the estate and the parties are in poor circumstances, there will be no order as to costs, except that the Public Curator will get his out of the estate. Solicitors for applicant: Application dismissed; costs of the Public Curator out of the estate. Bouchard & Holland. Solicitors for respondent: Morris, Fletcher & Cross. Solicitor for the Public Curator, trustee R. J. S. Barnett. (1) Queensland Sup. Ct. Prac., Pt. II., (2) 1921, St. R. Qd. 172. In re LYDIKSEN. CHRISTENSEN AND OTHERS v. ERICKSEN AND OTHERS. Will-Construction-Substitutionery gift-Gift to "children of my deceased sister"-Gift to children of any beneficicry under the A testator devised and bequeathed his property to trustees upon trust for conversion, and directed them (inter alia) to pay one-third of the residue "to the children of my deceased sister K, provided always that if any male or female being a beneficiary under this my will shall die in my lifetime leaving a child or children who shall survive me .. the child or children shall take (and if more than one, equally between them) the share which his or their parent would have taken of and in the residuary trust funds if such parent had survived me and attained the age of twenty-one years." L., one of the children of the testator's deceased sister K., died before the date of the will, leaving a daughter who survived the testator. Held, that the daughter of L. was not included as a beneficiary under the above residuary gift. SPECIAL CASE. This was a special case stated by consent of the parties under Order XXXVIII. (1) This action was commenced on 8th March, 1923, by a writ of summons endorsed as follows:--" The plaintiffs' claim is as the executors and trustees under the will of Jens Lydiksen, deceased, for a declaration of rights of the defendants under the said will and in particular that it may be determined upon the true construction of the said will and in the events which have happened whether the defendant Mildred L. Hansen (otherwise Mildred L. Cartwright) is entitled to any and what share in the estate of the abovenamed testator and (so far as may be necessary) for administration of the said estate." 2. The abovenamed Jens Lydiksen (hereinafter called the testator) died at Bundaberg aforesaid on 25th January, 1915, having made his last will and testament dated 30th September, 1911. The testator was never married. 3. By his will the testator appointed the plaintiffs as executors and trustees thereunder, and probate of the will was granted to 1923. March 16, 29. O'Sullivan J. In re LYDIKSEN. the plaintiffs as such executors by the Supreme Court of CHRISTENSEN AND OTHERS v. Queensland. 4. By his will the testator gave devised and bequeathed all his real and personal estate unto his trustees upon trust that his trustees should as soon as conveniently might be after his decease sell and convert into money his real estate and personal estate or such part thereof as should not consist of money and should out of the moneys to arise from such sale and conversion and out of his ready money pay his funeral and testamentary expenses and debts and as to the rest and residue of the proceeds thereof or trust funds should pay one-third part thereof to his sister Rebekha Lydiksen of Skjaerback Schleswig in Denmark Spinster for her own sole use and benefit and should also pay one-third part thereof to the children of his deceased sister Karoline Maria Krog formerly of Brons Schleswig in Denmark aforesaid equally share and share alike and should also pay the remaining one-third part thereof to the children of his late brother Jacob Lydiksen equally share and share alike provided always that if any male or female being a beneficiary under that his will should die in his lifetime leaving a child or children who should survive him and being a son or sons should attain the age of twenty-one years or being a daughter should attain that age or marry then and in every such case the last-mentioned child or children should take (and if more than one equally between them) the share which his or their parent would have taken of and in the residuary trust funds if such parent had survived him and attained the age of twentyone years. And he declared that his trustees should be permitted to pay or transfer any or all of his said trust estate unto any person claiming to be a beneficiary under that his will upon such evidence of identity of any such claimant as to his trustees should seem reasonable. And he further declared that his trustees should not be personally liable for any payment owing to mistaken identity fraud or otherwise. 5. The testator left him surviving his sister Rebekha Lydiksen and three children of his late brother Jacob Lydiksen-namely Mathias Lydiksen, Dorothea Maria Veck, all of whom reside in Denmark, and Lydik Hansen Nissen who resides at Wooster, State of Ohio, in the United States of America. Of the children of the testator's deceased sister Karoline Maria Krog the defendants Anna Rebekha Eriksen, Johanne Jensine Meier, and John Marinus Krog survived the testator, and the |