The Public Trustee as Administrator of the Estate of Harold Beaver (Dec) v Macgregor
[2001] WASC 222
THE PUBLIC TRUSTEE as Administrator of the Estate of HAROLD BEAVER (DEC) -v- MACGREGOR & ANOR [2001] WASC 222
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 222 | |
| Case No: | CIV:2512/2000 | 9 AUGUST 2001 | |
| Coram: | MILLER J | 17/08/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Deceased determined to be the son of Eliza Southgate nee WatererOrder that Public Trustee be at liberty to distribute the deceased's estate as if his father predeceased him without further issue | ||
| B | |||
| PDF Version |
| Parties: | THE PUBLIC TRUSTEE as Administrator of the Estate of HAROLD BEAVER (DEC) WALTER JOHN MACGREGOR DAVID WILLIAM DADLEY as Executors of the Estate of ELSIE DADLEY (DEC) |
Catchwords: | Administration of estate Evidence of pedigree Liberty of trustee to distribute estate of deceased as if father predeceased him without further issue Application of Trustees Act 1962, s 66 Turns on own facts |
Legislation: | Administration Act 1903, s 14 Trustees Act 1962, s 66 |
Case References: | Goodright d Stevens v Moss (1977) 2 Cowp 591 Jackson v Jackson & Pavan (1960) 3 All ER 621 R v Tomes (1917) VLR 78 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
Section 66 of the Trustees Act 1962
BETWEEN : THE PUBLIC TRUSTEE as Administrator of the Estate of HAROLD BEAVER (DEC)
- Plaintiff
AND
WALTER JOHN MACGREGOR
DAVID WILLIAM DADLEY as Executors of the Estate of ELSIE DADLEY (DEC)
Defendants
Catchwords:
Administration of estate - Evidence of pedigree - Liberty of trustee to distribute estate of deceased as if father predeceased him without further issue - Application of Trustees Act 1962, s 66 - Turns on own facts
(Page 2)
Legislation:
Administration Act 1903, s 14
Trustees Act 1962, s 66
Result:
Deceased determined to be the son of Eliza Southgate nee Waterer
Order that Public Trustee be at liberty to distribute the deceased's estate as if his father predeceased him without further issue
Category: B
Representation:
Counsel:
Plaintiff : Ms H J Finch
Defendants : Mr P D M Hughes
Solicitors:
Plaintiff : Public Trust Office
Defendants : Corsers
Case(s) referred to in judgment(s):
Goodright d Stevens v Moss (1977) 2 Cowp 591
Jackson v Jackson & Pavan (1960) 3 All ER 621
R v Tomes (1917) VLR 78
Case(s) also cited:
Nil
(Page 3)
1 MILLER J: This is the return of an originating summons issued by the plaintiff to determine two issues. The first is to answer the question whether Harold Beaver, late of 28 Maydwell Way, Calista in the State of Western Australia, retired builder, deceased ("the deceased") who died on 30 August 1987, was the son of one Eliza Southgate nee Waterer. The second is whether an order should be made that the plaintiff be at liberty to distribute the deceased's estate as if his father predeceased him without further issue.
2 At the hearing of the summons I determined that the deceased was the son of Eliza Southgate nee Waterer, he being born Percy Laycock Waterer on 5 April 1903 at Blackpool, England. I also made an order that the Public Trustee be at liberty to distribute the deceased's estate as if his father predeceased him without further issue. I undertook to give reasons for my decisions and these are the reasons.
3 The deceased died intestate and an order to administer his estate was made in this Court in its probate jurisdiction in favour of the plaintiff on 21 December 1987. The deceased was a bachelor without issue. His estate is therefore to be distributed pursuant to the provisions of s 14 of the Administration Act 1903.
4 When the deceased died at the Rockingham-Kwinana District Hospital in Cooloongup on 30 August 1987 he was a builder. His age on the certified copy of his certificate of death was given as 85 years. His father's name was unknown but curiously his father's occupation was given as "lay preacher". His mother's maiden name was given as "unknown".
5 Within the papers of the deceased, however, was an envelope addressed to the manager of the Commonwealth Bank, Forrest Place, Perth. On its face it read "Re next of kin to Harold Beaver 29/4/1982". Amongst the documents within that envelope was a form completed by the deceased in which he showed his date of birth as 5 April 1903 at Blackpool, England. He stated that his step-sister was his only next of kin. His step-father was shown as Alex Southgate of 2 Phoenix Street, Lane Cove, North Shore, Sydney and his sister's maiden name, Betty Southgate, of Sydney. The words "married name don't know" were added. Another document within the envelope contained the statement that the deceased's step-sister was his only living relative and her name "was Betty Southgate and was living with mother and father 2 Phoenix Street, Lane Cove NSW which they owned". Her age was noted as
(Page 4)
- 40 years "from guess work" and it was thought that she had two or three children. An additional document read as follows:
"I wish to advise my next of kin is my step-sister, Betty Southgate, our mother's married name being Lily Southgate, husband name Alex Southgate, address being 2 Phoenix Street, Lane Cove, Sydney NSW".
"The next question is, whether the declarations of the father and mother in their life-time, can be admitted in evidence after their death? Tradition is sufficient in point of pedigree: circumstances may be proved: for instance: suppose from the hour of one child's birth to the death of its parent, it had always been treated as illegitimate, and another introduced and considered as the heir of the family; that would be good evidence. An entry in a father's family Bible, an inscription on a tombstone, a pedigree hung up in the family mansion (as the Duke of Buckingham's was), are all good evidence. So the declarations of parents in their life-time. I have known advice given to a father and mother to make attested declarations in writing under their hand of the precise time of the birth of the bastard eigne and the subsequent marriage, to prevent controversy in the family touching the inheritance."
7 Evidence of a friend of the deceased's mother is equally admissible. June Edith Lily Webb of Epping Road, Lane Cove in the State of New South Wales has sworn that she was a friend of Elsie Dadley, late of 37 Pitt Street, Glen Innes, New South Wales, who died on 1 January 1988. She knew Elsie Dadley as Elsie or Betty Southgate whom she first met in or around 1940 when they were each around about 9 years of age and their families near neighbours. The Southgate family then lived at 2 Phoenix Street, Lane Cove, New South Wales and Mrs Webb has sworn that she and Betty became very close friends and remained so until her death. She knew Betty Southgate as the only child of Mr and Mrs Southgate, although she had been told by Betty Southgate that Mrs Southgate had been married before her marriage to Mr Southgate and from that earlier marriage had a son whose name was Harold Beaver.
(Page 5)
- Mrs Webb knew Harold Beaver and observed that he was many years older than Betty. He lived for several years with the Southgate family and she last saw him when she was around 16 years of age. According to Mrs Webb, Mrs Southgate always referred to Harold Beaver as her son and by her conduct towards him, it was apparent that this was so. Mrs Webb did not, however, know the name of Harold Beaver's father or any other details of Mrs Southgate's earlier marriage.
8 What is critical in this case is the declaration of the deceased that he was born on 5 April 1903 at Blackpool in England. That declaration, contained within one of the documents in the envelope addressed to the manager of the Commonwealth Bank, is admissible in evidence. It was so held in R v Tomes (1917) VLR 78 where evidence of a girl under the age of 16 years as to her name and date of celebration of her birthday was admitted to determine the question whether she was or was not identical with a girl referred to in a certified copy of an entry in the Register of Births. The Court considered that the case was not one in which the age of the person had been proved by hearsay but that it had been proved by putting in evidence the certificate of birth which related to a person of the same name and identity as that of the person who gave evidence. Although the point is somewhat different, it is authority which entitles me to take account of the deceased's declaration in the form within the envelope insofar as it relates to other evidence to which I shall now refer.
9 On 7 June 1920 at North Sydney, Eliza Waterer, a housemaid and spinster, who had been born in Lytham, England of William Waterer and Elizabeth Wade, married Alexander Leonard Southgate, a soldier/clerk, who was a bachelor born at Bedford in England. The wife was 32 years of age and the husband 28. A certified copy of the certificate of that marriage celebrated at St Leonard's, Willoughby reveals these details. That certified copy of the marriage certificate is probably admissible under the provisions of the Evidence Act 1906, s 67, but is in any event admissible (as are other certified copies to which I shall refer) by reason of the general principle that an entry in a register of births is prima facie evidence of the truth of the entry insofar as the entry is required to be made by statute: Jackson v Jackson & Pavan (1960) 3 All ER 621.
10 It is significant that the marriage certificate of Alexander Leonard Southgate and Eliza Waterer shows Eliza Waterer as a spinster on 7 June 1920. Although Betty Southgate had told her friend, Mrs Webb, that her mother had been married before the marriage to Alexander Leonard Southgate, it would seem that this was not so. A pretence of a prior marriage seems to have been perpetuated by Mr and Mrs Southgate.
(Page 6)
- When Eliza Southgate died at the age of 58 years on 19 March 1949 at Marrickville in New South Wales, her father and mother were respectively shown as William Waterer and Elizabeth Wade and she was shown as having been born in Lancashire, England, although having lived for 40 years in the State of New South Wales. Her husband gave the information contained within the death certificate and in relation to the questions of marriage and children, revealed that she had first been married at Lancashire, England to Amos Atherton of whom there was one child named Harold who was 35 years of age and still living. Her second marriage was given as that to Alexander Leonard Southgate of whom there was one child named Elsie aged 18 years and still living.
11 Extensive enquiries and searches made by the plaintiff to ascertain the registration of the birth of either Harold Waterer, Harold Atherton or Harold Beaver in Australia, England or Canada revealed no record whatever of any Harold Beaver having been born at Blackpool, England between 1901 and 1905, nor any record of him being born in the State of New South Wales or elsewhere. No registration of the birth of any Harold Atherton could be found in the Blackpool area in England around the year 1903 but a Harold Todd Waterer was discovered to have been born on 7 October 1906 at East Preston in the county Borough of Preston. However, his mother's name was Edith Waterer. No details of the boy's father were given, which indicates that he was an illegitimate child. However, there was born at Lytham in the County of Lancaster on 5 April 1903, a Percy Laycock Waterer, who was the son of Eliza Waterer, described as a mother's help and of 43 Warton Street, Lytham. No details of the father were given, indicating that the child was born illegitimate.
12 Enquiries made in relation to the registration of the death of an Amos Atherton in England between 1900 and 1920 revealed that an Amos Atherton died at the age of 47 in Runcorn, Cheshire in the year 1911 and an Amos Atherton died at the age of 70 years in Balton, Lancashire in 1917. The first left no Will but the second left a Will in which he mentioned his wife Martha and children Clara, Alfred and James Atherton. As he was 70 years of age in 1917, he would have been born in about 1846 or 1847 and would therefore have been much older than Eliza Waterer. Further, his wife Martha was alive in 1898 and she proved the Will in 1917, with the result that Amos Atherton could not have been married to Eliza Waterer. There does not appear to be any evidence to suggest that Eliza Waterer was ever married to an Amos Atherton.
13 There were further extensive investigations undertaken by the plaintiff over a period of more than 10 years since the date of death of the
(Page 7)
- deceased, none of which turned up any evidence to suggest that the deceased was other than Percy Laycock Waterer born 5 April 1903 to Eliza Waterer, she being one and the same person as the Eliza Waterer who married Alexander Leonard Southgate on 7 June 1920. It would seem that for some reason Percy Laycock Waterer's name was changed to Harold Beaver. The boy's name may well have been changed because to have left it as Waterer would have indicated his illegitimacy.
14 I am satisfied on the evidence before me that the deceased was the son of Eliza Southgate nee Waterer, he having been born Percy Laycock Waterer on 5 April 1903 at Lytham in the county of Lancaster, England. The evidence therefore indicates that he was the half-brother of Elsie Dadley who was born Elsie Southgate on 4 November 1930 at Paddington, New South Wales, being the daughter of Alexander Leonard Southgate and Eliza Southgate then residing at 2 Phoenix Street, Lane Cove. Elsie Southgate was married to George Alfred Dadley at Lane Cove, New South Wales on 9 April 1949 and she died on 1 January 1988 at Glen Innes in New South Wales. She was then a widow with five living children. She was clearly the next of kin of the deceased at the date of his death and in my view, his estate should pass to the estate of the late Elsie Dadley. It is clear that the deceased's mother predeceased him and I am satisfied that on the evidence before me the deceased's father predeceased him without further issue.
15 Pursuant to the provisions of s 66 of the Trustees Act 1962 the plaintiff has advertised extensively for the deceased's father and any further issue. An advertisement to the following effect was published in leading newspapers in England, Canada and Australia between 1993 and 1999:
" ESTATE OF HAROLD BEAVER DECEASED
The Public Trustee administers the estate of the abovenamed.
The deceased appears to have been the son of Eliza (also known as Lily) Waterer later Southgate.
He may have been born on 5 April 1903 at Lynham Lancaster England under the name of Percy Laycock Waterer. He may have been the son of Amos Atherton.
Would the following persons (any of whom may have an interest in the estate) or any person claiming under or through or knowing the whereabouts of them please contact the Public
(Page 8)
- Trustee at 565 Hay Street, Perth, Western Australia within 2 months of the date of publication of this advertisement quoting reference DEC 225658 DG1:
1. the deceased's father (whether Amos Atherton or not) or any further issue of him;
2. Percy Laycock Waterer or any issue of him."
16 A number of responses to this advertisement were received from genealogists and researchers but nothing revealed the details of any person who could have been the father of the deceased. In my view the only conclusion that can be reached is that the deceased's father predeceased him and predeceased him without further issue. The requirements of s 66 of the Trustees Act having been sufficiently met in this regard, it was therefore appropriate for an order to be made giving the plaintiff leave to distribute the estate of the deceased as if his father had predeceased him without further issue.
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