Brown v Cordingley
[2007] NSWSC 1338
•22 November 2007
CITATION: Brown v Cordingley [2007] NSWSC 1338 HEARING DATE(S): 20/11/07 21/11/2007
JUDGMENT DATE :
22 November 2007JURISDICTION: Equity Division JUDGMENT OF: Associate Justice Macready at 1 EX TEMPORE JUDGMENT DATE: 22 November 2007 DECISION: Paragraph 76 CATCHWORDS: Family Provision. Application by son under Family Provision Act 1982. Son already provided with benefits of $1.2 million under will of deceased. Summons dismissed. PARTIES: Gregory John Brown v Hugh Harold Cordingley FILE NUMBER(S): SC 4098/2005 COUNSEL: Mr C Harris SC for plaintiff
Mr P Hallen SC for defendantSOLICITORS: Diamond Conway Solicitors for plaintiff
Teece Hodgson & Ward for defendant
THE SUPREME COURTOF NEW SOUTH WALES
EQUITY DIVISION
THURSDAY 22 NOVEMBER 2007
4098/2005 GREGORY JOHN BROWN v HUGH HAROLD CORDINGLEY
JUDGMENT
1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Coralie Lesbia Cordingley who died on 16 February 2004 aged 86 years.
2 The deceased was survived by her two children from her first marriage, Gregory Brown and Robyn Woodford and her son Hugh Cordingley from her second marriage. Both her husbands pre-deceased her.
The last will of the deceased
3 The last will of the deceased was made on 27 May 2002 in which she appointed her sons, the defendant and the plaintiff, as executors of the will.
4 In her will she forgave any debts due by her son Hugh, and she gave a bequest of her real estate, known as Mihi, Uralla to the defendant. After giving a number of small legacies she provided that any parcels of her shares listed on the Stock exchange numbering less than 100 should pass to her son Gregory. There is only one such parcel held.
5 The next bequest in clause 4 (vi) is a bequest of all of the shares which she held to be divided equally between the plaintiff and his sister Robyn. She then made a number of other bequests and forgave to the company Mihi Pty Ltd any debt owed by that company as at the date of death. In clause 6 she gave the residue of her estate to be held equally between the plaintiff Gregory and her daughter Robyn.
6 After a distribution of $50,000 to each of the plaintiff and Robyn the estate consisted of the following property:Assets in the estate
1. Real estate in the deceased's name and being part of the property known as Mihi, Uralla. I will come back to the value of that shortly.
2. Shares with a value as at 11 October 2007 of $2,335,621.00.
3. Units in a unit trust valued at $82,112.
4. Residuary estate bank account in the sum of $124,359.
5. Share and income account in the sum of $168,012.
6. Solicitor's trust account in the sum of $87,102.
7. Rent received from a cottage on Mihi in the sum of $3600.
7 Adopting what the defendant says is the value of Mihi, this gives a gross distributable estate with a value of approximately $4.9 million and this includes cash assets of some $343,332.
8 The liabilities of the estate are at the most, $21,363. Costs incurred in this estate reflect the effort that has gone into this case. The plaintiff's costs are approximately $133,000 and the defendants are a similar amount.
9 I turn to the question of the value of the various parcels of land in Mihi which were debated before me. There are three blocks of land that are concerned. One is what is described as Block A. It is a parcel of 587 hectares. On that block is the Homestead. Block B is owned by a company Mihi Pty Ltd and it has an area of 983 hectares. That is effectively in the control of the defendant. Block C is a small parcel of 64 hectares which was purchased by the deceased and is in the name of the defendant.
10 There were two valuers who gave evidence. Mr Davidson gave evidence on behalf of the defendant. He assessed Block A in the sum of $2,150,000; Block B in the sum of $2,150,000; and Block C in the sum of $160,000.
11 Mr Viarella, who gave evidence of the half of the plaintiff, said he assessed Block A in the sum of $2,600,000; block B in the sum of $2,850,000 and Block C in the sum of $200,000.
12 Both valuers gave evidence before the Court and were cross-examined together in a useful procedure which enabled each to respond to the other. Their experience is somewhat different. Mr Davidson has spent his life as a country valuer in the New England area. Mr Viarella is a city valuer who has done only eight country valuations none of which were in the New England area.
13 The valuers helpfully set out a statement of differences, which is an exhibit before me in the Court. The most critical part of the differences between the valuers is their treatment of comparables. They both had two comparables in common. One was a property called East Mihi and the other was a property called Goumallee.
14 Mr Davidson thought that a property called Woodburne was a very good comparable. That was a property that was not used by Mr Viarella. Mr Davidson thought that was appropriate because of the timeframe, the closeness, and a number of other matters. Mr Viarella preferred East Mihi. However, Mr Davidson seemed to have more local knowledge, particularly when dealing with soil types and elevation and matters of that kind. In my view the reasons which he advanced in his evidence for preferring his comparable as the most appropriate one I think are right and I adopt Mr Davidson's valuations, which relevantly put the estate property at $2,150,000.
Family history
15 Some of the matters relating to the family history are contained in the chronologies which have been helpfully placed before the Court and I will adopt these with some modification.
16 The deceased was born in February 1918 and left school at the age of 14 years. She worked at home for some time and in 1938 she began her training as a nurse. She qualified in 1942 and two years later, in 1944, she married her first husband John Thomas Brown. He died on 30 September 1953 after having suffered a severe stroke in 1950.
17 They had two children, the plaintiff, who was born in February 1950 and Robyn who was born in October 1946.
18 Following the death of her first husband the deceased re-married in January 1958. She married Harold Windsor Cordingley who was a grazier and owned a property called Mihi at Uralla which consisted of about 3,900 acres with a commodious Homestead. The defendant was born as a result of that marriage in February 1959 and was their only child.
19 I turn to the plaintiff's situation. Before moving to Mihi he lived with his mother at Pymble where she worked as a nurse in order to support her young family. After moving to Uralla he went to a local school and then went to Shore preparatory school followed by Shore secondary school. After leaving school he obtained a place at the University of New South Wales in mechanical engineering. After a year of mechanical engineering he decided he wanted to be an architect and enrolled in a part-time architects course. During this period he received some financial assistance, as did the other child, not unnaturally, from their mother.
20 The plaintiff stopped doing his architectural course in 1971 and decided on an occupation as a motorcycle mechanic and enrolled at the Sydney Technical College. He could not complete that course.
21 The plaintiff came back to Mihi at the beginning of 1972 and then spent some time in New Zealand. By late 1973 he was back at Mihi again.
22 In 1973, after the death of the deceased’s second husband on 15 December, the plaintiff was asked by the deceased to help on the property. He did so to the best of his ability. During this period he lived in a cottage on the property and he worked there until approximately December 1975 and was paid a wage for the work which he did. Later he was employed part-time in the period from July 1979 to November 1979. One matter which I have not mentioned is that whilst he was working at the property he suffered a serious fall in 1979 and received serious injuries. In due course he left Mihi in about 1980.
23 The plaintiff married his wife in February 1978 and he had three children. His first son Tim was born in August 1978.
24 It was at about this time the defendant started to work at Mihi. He had previously been educated at The Armidale School. At this time there was a Discretionary Trust formed which apparently owned the real state of Block B and in due course in various ways that eventually led to the defendant having control of that real estate.
25 The plaintiff's second child, Jessica, was born in May 1981 and in that year he started working as an apprentice carpenter and he and his wife purchased some land at Exeter. They also in that year started to do work on a house which he was building, because the plaintiff was keen to become a builder. It was not completed but it was completed to a stage sufficient for the family to move in to live there. In 1984 he completed his apprenticeship as a carpenter and joiner.
26 It was at this stage that the deceased purchased the small Block C which was in the name of the defendant. It was run with the rest of the partnership and paid off through the operations of the partnership.
27 The plaintiff's third child, Rachel, was born in March 1986.
28 In 1988 there was a partnership between the deceased and the defendant. It was the usual stock partnership which owned all the stock, plant and equipment on the property. The precise details of how this was formed is not before me, but it seems the defendant did not contribute by way of cash at this stage to the coming into operation of that partnership. Whether it was a substantial benefit or not is hard to know because the details of the value of the stock are not available and I could not form any conclusion as to whether there was a substantial benefit provided for him at this stage.
29 I return to the plaintiff's situation. In September 1991 unfortunately the plaintiff and his wife separated. In October of that year the plaintiff had a mental breakdown and was admitted to Kenmore Psychiatric Hospital for sometime and he has received treatment since then.
30 I return to the defendant's situation. By 1994 the deceased was not wishing to be actively involved in the stock partnership and arrangements were made for that partnership between her and the defendant to be terminated and a fresh partnership commenced between the defendant and his wife which took over the existing assets of the partnership.
31 The quid pro quo for this seems to be that the defendant and his wife took over the liability for an overdraft of some $196,000 and that was of great benefit to the deceased; she was free of any involvement and the liability for that debt.
32 There seems to have been some arrangement made at that stage that her land, which, of course, was still in her name, could be used for partnership purposes and she would be paid $5,000 per annum rent. In the scheme of things that is not terribly important.
33 The plaintiff had over the years completed various courses in respect of his building endeavours. He received a certificate in respect of advanced building in 1996 and received a building licence in 1998.
34 The deceased made her will, as I have indicated, in 2002 and died on 16 February 2004. At the end of 2005 the plaintiff had a nasty injury when he injured his hip after an attack by an animal and he was diagnosed with Perth’s disease. That led him to have an arthroscopy and it is plain from the evidence that he will have to have a replacement hip at some stage.
35 The plaintiff is an eligible person and there is no difficulty in this regard. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:Eligibility
- “The first question is, was the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
- The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that from arrangements to pay creditors”.
36 I turn to consider the plaintiff’s situation in life. The plaintiff is 57 years of age with no dependent children and is separated from his wife. His main asset is the property at 12 Buskers Avenue, Exeter, which is a partially completed home and is valued at $230,000 to $250,000. He has two life policies with MLC and AXA worth $49,867 and $1,130; and he has shares to the value of $17,018, savings in a bank account of some $8,961; he has a car worth $4,000, a trailer, tools, furniture and contents worth some $12,000. He does not have any superannuation. He has a number of debts including a Visa card of $37,948.68, he owes the Australian Tax Office $15,000, he has debts to his solicitor of $23,000, a debt to the valuer of $6,954 and a debt to his former solicitor $5,329.20.
37 The plaintiff presently does not have an income. He has not worked for sometime and he is in receipt of unemployment benefits. He receives a New Start Allowance of $215 per week plus $23 per week dividend income. He does not have any medical insurance, hence some of the needs which he has, to which I will refer later. He estimates his present weekly expenses at $588. That is a total of some $30,576 per annum.
38 So far as the plaintiff's medical condition is concerned, he suffers from depression, disrhythmic disorder and from panic attacks. He describes his condition as suffering from intense period of anxiety, insomnia, lethargy, depression and social insulation. The medical information is that his psychiatric problems are deep seated and are unlikely to be resolved. As I indicated, he suffered an accident in 2005 in which he injured his hip. He now has Perth’s disease and is in need of a hip replacement. He also requires extensive dentistry work.
39 The plaintiff had a relationship with the deceased throughout his life and, although there may have been some frustrations on the part of the deceased, there is nothing in that relationship which would in any way affect the claim which the plaintiff makes. Apart from the benefits when he was being educated, the plaintiff also received some $14,000 from the deceased in 1987 and $20,000 in 1997.
40 It is necessary to consider the situation in life of others having a claim on the bounty of the deceased. These are the defendant and his sister Robyn.
The defendant
41 The defendant is 48 years of age, married with three dependent children aged between 15 and 22 years. He has a number of assets. There is Block C worth $160,000; his equity in the company Mihi Pty Ltd $2,300,000 which is the land. There is the partnership with a negative value of $85,000. He has miscellaneous shares and stocks worth about $30,000; and superannuation of $13,000. His debts included MasterCard of $3,958, a debt to the bank of $426,621. The income of the defendant and his wife, because of the drought, is not great. His wife works to supplement their income and for the year ended 30 June 2007 she earned $7,493. In the previous year it was slightly higher at $11,786.
42 The defendant currently receives a Centre Link exceptional circumstances relief payment of $756.52 per fortnight and his taxable income for the year ended 30 June 2006 was $12,247.
43 Their fortunes are linked to the property and they obviously have a reasonable level of debt. Currently, with the drought and low wool prices, they hardly make any substantial profit. They expect only to break even. He has received a number of subsidies in respect of his operation of the property.
44 The defendant is in good health, apart from a difficult knee and the difficult times which they suffer. He needs to do some work on the property but that is always the case with country properties where there is always something to be done.
45 The defendant had a good relationship with the deceased. There were some criticisms of his treatment of his mother at the end of her life and it is difficult to know the full truth of what happened in respect of those matters. One only has some observations of some people without knowing what the deceased was doing. I do not regard them as serious matters which in any way affect the relationship.
46 I turn to the situation of Robyn Woodford. She is aged 61 years, married to her husband, who is now retired. She works as a real estate agent on the Gold Coast and, because of the nature of her work, has a variable income. For instance, for the year ended 30 June 2004 she had a taxable income of $6,793; and the year ended 30 June 2006 she had a taxable income of $44,624.
47 So far as assets are concerned, her home is owned jointly with her husband and is valued at between $700,000 and $750,000. It is subject to a mortgage $550,000. Not unexpectedly, as a real estate agent she has a number of investment units. Her total equity in those units is between $209,000 and $239,000. She has a car worth $6,000 and they have a number of leased vehicles, which are fully leased. Apart from some shares worth $8,680, she has a bank account with $65,000 therein and has no superannuation. She has miscellaneous credit card debts of $122,625.
48 She also had a relationship with the deceased and received a provision of $20,000 during the lifetime of the deceased.
50 The plaintiff claims that provision ought to have been made out of the deceased's estate for the following purposes:49 It is necessary to see how the plaintiff says he has been left without adequate provision for his proper maintenance, education and advancement in life. It is only if this is established that the Court has jurisdiction to interfere with the provisions of the will of the deceased. This Court’s role is not to re-write the will of the deceased or make what might be said to be a just will in accordance with some beneficiaries’ expectations. It is also not a jurisdiction where hurt feelings are rewarded or a jurisdiction where an award is given for good service.
- 1. $200,000.00 to purchase a small rural property (being the equivalent value of the 64 hectare parcel of land owned by the defendant at Mihi).
2. $291,444.00 to complete the house at Exeter (being $223,025.00 + $30,249.00 + $23,210.00 + $1927.00.00 + $7,679.00 + $5,350.00).
3. $11,490.00 for dental work.
4. $27,500.00 for hip surgery.
5. $42,000.00 for a new car.
6. $27,000.00 for new furniture.
7. $55,000.00 for computer and new tools.
8. $28,000.00 accountants fees to complete an outstanding tax returns.
9. $900,000.00 to produce invested annual income of $45,000.00.
A total provision of $,1,582,430.00.
- “67. When it comes to children, as Young J observed in Shearer v The Public Trustee, NSWSC, unreported, 23 March 1998, it has never been said by any Court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLF 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous.
- 68. In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109] - [110], White J having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this have occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2--3] NSWCA 352.
- 69. White J’s decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgement, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the estate is ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her well being. Thirdly, the applicant did not have any need in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally.
- 70. It was submitted that Mayfield was distinguishable by the absence of these features in instant circumstances and because the appellant in Mayfield had filed no financial evidence had put forward no competing financial or other needs for the Court to consider.
- 71. And there are differences of fact between Mayfield and the present case. But they do not have effect central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32] Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision that Court ought to order."
52 The plaintiff says that he would like a 40 hectare property in the Southern Highlands area close to where he lives. It is really a matter of lifestyle. He does not advance to this Court that there is some economic benefit or need for him to have this property.
53 The problem, apart from whether it is an appropriate claim, is that there is no evidence before the Court of what such a property might cost. Certainly it cannot be measured by what he regards as the value of the small parcel which the deceased provided for the defendant during her lifetime.
54 As I say, there is no economic rationale advanced for this desire, it is just simply a matter of lifestyle and enjoyment and I frankly do not consider that it is an appropriate claim.
55 Some of the other matters he mentions are appropriate. Obviously the dental work and his hip replacement are appropriate needs. He probably needs a new car; whether it should be as expensive as he suggests it is another matter. Some furniture no doubt could be replaced. It seems to be a very expensive list of furniture but I accept that some of it would be appropriate.
56 He has mentioned a computer and tools in the sum of $55,000. Given that I think there is a real doubt as to whether he will return to work, I think probably it will not all be necessary. So far as the accountant’s fees are concerned, given the lack of work this does not seem to be a great problem. But obviously, it is something which is concerning him. He has not been able to get to deal with it himself so I accept the fact that he does probably need an accountant to actually deal with it. I think he suffers from a great deal of problems of being unable to tackle things like this and, indeed, that is his basic problem about him being able to get back to work.
57 There is a claim for repairs to the house. There is evidence from R & B Hall Builders that the total amount to complete the house is the sum of $223,025.00. That brings it to a very adequate and proper state. For instance it includes all things outside the house, including water tanks worth some $16,500, wood storage shed, driveways and footpath and a whole range of things necessary to complete the home. No doubt some of this should be done and some of these things are necessary, such as the lining of the walls, the internal baths, finishing the kitchen and bathrooms and obviously these are all things that he would like to be done.
58 It is the situation that he has not managed to do this for some 23 years, and probably he is not going to do them. He will probably have to engage someone to do some work for him in this respect.
59 The claim for some income provision is based upon the use of the 5% tables. It is not an appropriate way to calculate it because it takes no account of life expectancy. The fact of the matter is that if one looks at the situation of the estate, putting aside the question of costs in this matter, the plaintiff stands to receive shares of something in excess of $1.2 million and perhaps another $150,000 out of residue of the estate. The income from the shares alone in the last year is a net amount to the estate of in excess of $90,000 so the plaintiff's income is likely to be from shares alone at least $45,000 per annum.
60 That is far more than his current level of expenses to which I have already made reference. He is not in a situation where he is going to start some new enterprise. He is in a difficult situation because of his medical problems.
61 It is unlikely, on the information before the Court, that he may get back to meaningful work and therefore he is likely to just need support for himself to try to come to terms with his difficulties and lead a life which can satisfy him in some way.
62 The amount that he would receive under the estate is sufficient to enable the plaintiff, if he wishes to sell some shares, to enable him to have some funds to meet his expenses and if necessary to do things or part of the things he wants to do to his house.
64 In my view, on an analysis of the plaintiff's position, the plaintiff has not been left without adequate provision for his proper education and advancement in life and, accordingly, I dismiss the proceedings. I will hear the parties on costs.63 There are other avenues open to him. He is likely to be able to use his assets to put aside superannuation and take benefits in that respect. What this means is that he also has a very substantial fund to deal with any contingencies in life.
- (Counsel addressed on the question of costs)
EXHIBIT #8 BUNDLE OF CORRESPONDENCE BETWEEN THE SOLICITORS TENDERED, ADMITTED WITHOUT OBJECTION
65 I have heard argument on the costs order that ought to be made in respect of this matter. There are the costs of the proceedings and the costs of the cross claim which was brought by the defendant. Yesterday the defendant announced that he did not wish to proceed with the cross-claim and, accordingly, I order that the cross claim be dismissed.
66 The plaintiff seeks an order that the defendant's costs be paid or retained out of the estate of the deceased and also an order that the plaintiff pay the defendant's costs on an indemnity basis, and also an order that such costs should be paid from the shares which are to pass under the will of the deceased to the plaintiff.
67 The plaintiff seeks an order that, put very simply, apart from the right of indemnity for the estate by the defendant, that the plaintiff pay the defendant's costs on an ordinary basis with no provision for determining their burden and the defendant should be ordered to pay plaintiff's costs of the cross claim.
68 The matter is a difficult one and in some sense it has been made difficult because of the family feelings and the difficulties perhaps perceived by the plaintiff over his mother's refusal to allow him a small parcel of land out of the estate many years ago. However, I do not think the evidence suggests that that was the sole reason why these proceedings were brought.
69 It is to be noted probate was obtained in February 2005. There are affidavits sworn by both the plaintiff and the defendant in May and June that year where he swore as to the value of the estate. The estate's shares were then valued at $1.2 million. Plainly, the plaintiff must have known the value of the estate at that stage but, as is pointed out in submissions, his share would be somewhere around $600,000 to $650,000.
70 The proceedings were commenced in July 2005. There has been tendered some correspondence containing various offers. The first of such is a letter of 25 August 2006 which the defendant sent to the plaintiff and that was simply on the basis that "your clients proceedings be dismissed on the basis that the summons be dismissed and the plaintiff bear his own costs." That, unfortunately, did not address the question of the costs of the cross-claim which had been filed a week before.
71 There is, however, correspondence including a letter of 21 October 2007 where the plaintiff suggests that the plaintiff’s summons be dismissed, the cross-claim be dismissed, the defendant's costs be paid out of the estate and there be no order as to the costs of the cross summons or of the plaintiff's proceedings on the summons including the cross summons.
72 That does have the effect that the costs of the proceedings would be partially paid by the other beneficiary, Robyn Woodford. In other words, it throws some liability to her. There was then some correspondence which did not accept that offer. There was debate about other matters such as the amount of the residue and the cross-claim being settled for $33,000. Those were matters that relate to a slightly wider dispute between the parties about the administration of the estate rather than in relation to the claim under the Family Provision Act .
73 I do not get a great deal of help from those letters. The position in this matter at the time the proceedings were commenced is a somewhat different one from the one where it was at the hearing. Unfortunately, some 2½ years have passed. That has had the benefit that there has been a substantial increase in the value of the shares which puts quite a different perspective on the case that the plaintiff brought.
74 Although the plaintiff was plainly disappointed about the provision made, and perhaps in the early stages did not fully appreciate what his entitlement may have been, I think he must have known that he was entitled to some $600,000 at the time he commenced the proceedings. That is, as I say, different from the present situation.
76 Accordingly, the orders I make are:75 I think in those circumstances I am not prepared to make an order on an indemnity basis against the plaintiff. In my view the appropriate order -- and I will ask for comments from counsel -- is one that will enable the current estate to be distributed. I think that as a matter of principle the plaintiff should pay the defendant's costs of the proceedings on the ordinary basis and that they should come from his share.
- 1. That the defendant’s costs on an indemnity basis be paid or retained out of the estate of the deceased in the event that they are not paid by the plaintiff and subject to the matters which I will mention in later orders.
2. I order the plaintiff to pay the defendant’s costs of the proceedings.
3. I order that the defendant’s costs of the proceedings may be retained by the executor out of the shares passing to the plaintiff or, alternatively, out of his share of residue at the election of the defendant.
4. I order the defendant to pay the plaintiff's costs of the cross claim.
5. I order the exhibits be retained.
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