DEVONSHIRE v HYDE

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3526/00 TIMOTHY ERNEST DEVONSHIRE v LORRAINE BEATRICE HYDE Judgment 1 MASTER MACREADY: This is an application under the Family Provision Act 1982 in respect of the estate of the late Stephen Mark Chuck who died on the 15th March 2000 aged 44 years. The deceased had not married nor did he have children. He was survived by his parents and the plaintiff. The plaintiff in the present proceedings alleges that he was in a de facto relationship with the deceased at the date of the deceased's death and for some years beforehand. 2 The last will of the deceased was made on the 23rd December 1994. By that will he appointed a long-time friend, the defendant, as sole executrix. He gave the whole of his estate to his parents Sidney Noel Chuck and Linda June Chuck. 3 The main asset in the estate of the deceased was his unit at Darlington and this has an agreed value of $360,000. There were other assets some of which have been realised to pay his debts and some of them retained. The present unrealised assets including the unit are valued at $370,271. 4 The present outstanding liabilities of the estate amount to $216,214 leaving a net estate, before the provision for costs and some other unquantified liabilities to which I will come to in a moment, of $154,057. 5 The plaintiff's costs in this matter were estimated in the sum of $57,000. The case was originally set down for three days and the estimate was made on that basis. Given that the case has only occupied one day of hearing that estimate was reduced to $47,000. The defendant estimated her costs for a three-day hearing at $75,000. Given the reduction in the length of the hearing the estimate was reduced to $65,000. This is a total of $112,000 leaving a balance in the estate of $42,057. 6 That estimate does not take into account a number of other costs that will be incurred. The largest of these costs will of course be the costs of sale of the unit. It is quite clear in this case that the unit will have to be sold as the bank which holds a mortgage over the property has already obtained judgment against the executrix both for possession and the amount under the mortgage. Costs on sale could be expected to be in the order of $10,000 and there are also accounting fees, income tax together and the executor's claim for commission which have not been included in the above figures. There is also an increasing level of liability given that the interest on the mortgage is accumulating at somewhere between $900 and $1000 each month. 7 It is probably useful to deal with a little of the chronology in the matter. The deceased was born on the 20th January 1956 and the plaintiff was born on 25 October 1978. There was thus a 22 year difference in their ages. As I have mentioned, it was in December 1994 that the deceased made his last will to which I have referred. Two years later in March he completed a superanuation form nominating his sister Diana to receive his superannuation. The superannuation was in an amount of some $85,000 that has not yet been paid. The evidence before me indicates that a claim has been made by the estate. There is no evidence of any final decision having been made by the trustees of superannuation fund as to any payments to be made. There is no possibility at this stage of making any order in relation to this amount as notional estate. It may be that some of the superannuation fund might go to the deceased's sister and some might go to the estate. Given the almost total lack of evidence advanced by the parties on this aspect I cannot assume that the estate will receive this sum. 8 On 4 April 1996 the deceased left his employment with Baxters footwear and moved to Sydney. In July 1996 he bought a home unit at Darlington for about $200,000. At this stage the deceased's sister Diana moved into the flat and flatted with the deceased. 9 It was on 22 December 1996 that the plaintiff says he met the deceased and had a sexual encounter with him. At that stage the plaintiff, who had a very difficult life and upbringing, was working as a male prostitute. In January 1997 the deceased's sister, Diana, ceased flatting with the deceased. It was in March 1997 that the plaintiff says he commenced a sexual relationship with the deceased at Fairymeadow. It was on 10 April 1997 that the plaintiff alleged that he moved into the deceased's unit and commenced to live with him. The plaintiff at that time was unemployed and during 1997 the plaintiff did some agency work as a nurses aid from time to time. 10 It was in April 1998 that the defendant submitted that the plaintiff moved into the deceased's unit. This is denied by the plaintiff and is a major point of difference between the parties in the case. In May 1998 the plaintiff gives an account of a ceremony of commitment wherein the deceased and he exchanged rings. 11 It was in June 1998 that the plaintiff was first introduced to the defendant. It was the defendant's position that it was not before this date that the relationship between the plaintiff and the deceased commenced. 12 The plaintiff had from time to time used heroin but he last used the drug in April 1999. It was on 15 March 2000 that the deceased died. The summons in this matter was filed on 9 August 2000. On 20 November 2001 the mortgagee served a notice. In January 2002 consent orders were signed and the mortgagee obtained judgment for possession and judgment for approximately $188,000. 13 The plaintiff puts his case primarily on the basis that he was the de facto partner of the deceased at the date of death. In the event that this is not accepted he also puts forward that he was in a close personal relationship with the deceased or, alternatively, that he is an eligible person by virtue of the provisions of section 6 (1) (d) of the Family Provision Act 1982. The Law on a domestic relationship. 14 Prior to the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 relief was only available under the then Family Provision Act in respect of relationships between a man and a woman. Under the amendments, which took effect on 28 June 1999, there was an extension of the Act which applied to proceedings which commenced after that date. The amended Act incorporates the definition of a domestic relationship in the Property Relationships Act 1984. 15 The Act applies to domestic relationships which are defined in s 5 of the Property Relationships Act as follows:- " 5. Domestic relationships

(1) For the purposes of this Act, a domestic relationship is:

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

(3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following:

(a) a child born as a result of sexual relations between the parties,

(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman:

(ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted,

(d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).

(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

16 It can be seen from the terms of s 5 (1) that a domestic relationship can be either a de facto relationship or a close personal relationship. 17 The definition of de facto relationship itself appears in s 4 and is in the following terms:- 4. De facto relationships

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and (b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2 ) (a)--(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship." 18 This definition, apart from the provisions of sub-clause (1), merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act 1984. See Light v Anderson (1992) DFC 95120 applying Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677. 19 Apart from the exclusionary matters in s 5(2) there is no definition of "close personal relationship". Little help is obtained from the reading speeches as to the meaning of "close personal relationship". It is apparent from the terms of the separate definition of de facto relationship that a close personal relationship does not necessarily involve the concept of living together as a couple. Instead s 5(1)(b) refers to persons "who are living together, one or each of whom provides the other with domestic support and personal care". It is notable that both domestic support and personal care must be provided. One of them alone would not be sufficient. The "close personal relationship" has to be between two adult persons who are "living together". Given that they may be members of the same family, such as a grandparent and grandchild, and the different definition for a "de facto relationship", concepts relating to a "couple" are not relevant. Instead the definition calls for two different links. The first is that the parties are "living together". The second is that "one or each of whom provides the other with domestic support and personal care". 20 So far as the first requirement is concerned, since we are not concerned with concepts applicable to couples, the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together. 21 The second requirement is cumulative. There must be both domestic support and personal care. There are a number of matters which could be domestic support, eg, shopping for both parties, cooking, washing clothes, provision of accommodation, etc. 22 It is the provision of "personal care" which provides the clue to the meaning of the composite expression "domestic support and personal care". Some of the primary meanings of "personal" include:- (a) Of or pertaining to concerning of affecting the individual person or self; individual; private; one's own. (b) Of or pertaining to one's person body or figure; bodily." 23 Accordingly, personal care connotes care taken in connection with such matters. It could be provided by:- (a) The person concerned.

(d) A daughter for her elderly incapacitated mother. 24 The legislation in terms excludes the first two but would include the last two examples. The claim that a de facto relationship existed

25 The existence of such a relationship appeared to be a major issue in the preparation of the affidavits in the case. Ultimately there was no cross-examination of any of the deponents except the plaintiff. Clearly, in the way the case was conducted on the affidavit material, the family of the deceased and many of his friends did not know that in the last few years of his life the deceased was having a homosexual relationship with the plaintiff. The deceased had appeared to his family and many of his friends to be involved in normal heterosexual relationships from time to time. 26 Although the defendant did not concede that the plaintiff and the deceased were in a de facto relationship no submissions were put to the Court to suggest that such a relationship did not exist from at least June 1998 until the date of death. Indeed the plaintiff was not cross-examined to suggest that the relationship which he contended for did not exist in this period. The only cross-examination related to the date of commencement of the relationship. 27 In these circumstances it seems clear that there was a de facto relationship but for completeness I will turn to deal with some of the matters referred to in s 4 (2) of the Act.

The nature and extent of common residence 28 It seems clear that once the relationship commenced the parties lived together in the deceased's residence. Another person shared that residence at some time but this does not detract from the continuing residence. Whether or not a sexual relationship exists 29 The evidence of the plaintiff was that a sexual relationship existed between the deceased and the plaintiff. It was exclusive to the extent that they lived together. The plaintiff admitted that from time to time he and the deceased engaged in sex with another person as a threesome. There is sufficient evidence, for example, photographs of them together, to satisfy me that the plaintiff and the deceased had a sexual relationship while living together. The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties 30 The unit in question was owned by the deceased and it seems clear that the deceased and the plaintiff each contributed to some of the household expenses. The deceased and the plaintiff did not have joint bank accounts and the evidence shows a common situation of sharing housework and contributing to household expenses. The ownership, use and acquisition of property 31 There is no common ownership of property. The degree of mutual commitment to a shared life 32 The evidence discloses the plaintiff's and deceased's commitment to each other. It was evidenced by the marriage ceremony and also there are a number of statements concerning the plaintiff made by the deceased which indicate such commitment. The care and support of children 33 This is not relevant in the present case. The performance of household duties 34 It is clear that both the deceased and the plaintiff performed household duties together. The reputation and public aspects of the relationship.

35 There were a number of affidavits filed on the plaintiff's part by friends who saw the plaintiff and the deceased together publicly behaving as a couple. Clearly in respect of a number of people the deceased chose not to disclose the nature of his relationship with the plaintiff. 36 This leaves the only remaining question which was the only one debated before me, namely, the period of the relationship. 37 The plaintiff gave a confused account in his affidavit evidence of the commencement date of the relationship. He maintained in his cross-examination that the commencement date was April 1997. Reference was made to the existence of the birthday card which was given by the deceased to the plaintiff on 25 October 1997. I do not think that this assists greatly in drawing an inference as to the commencement of the relationship. There also was a document which the deceased signed which was a bail acknowledgement given on 28th June 1998. In that document the deceased said that he been acquainted with the plaintiff for one year and three months. In another paragraph he described the nature of his acquaintance being that he was his partner. The form was originally typed showing word "friend" but this was crossed out and "partner" substituted. There was some debate about the construction of the document but, in my view, it is some evidence pointing to the deceased having been a partner of the plaintiff at least back to April 1997. 38 Evidence was given by Mr Scott Woolf who was a friend of the plaintiff and the deceased. In 1997 he moved into the flat at Darlington for a short time and he recalls the plaintiff moving to the flat. He puts this time at early 1997. It was his evidence that he saw the deceased and the plaintiff sharing the same bedroom and the same bed. He had seen them in the bed together. 39 The evidence which points somewhat the other way includes evidence from Khalid Myatt who was a family friend of the deceased. In January 1997 she used to clean the flat at Darlington and she continued to do so until November 1997. She gave evidence that she could see nothing to indicate he shared his bedroom or ensuite with any other person. She says that she first met the plaintiff in June 1998 when the deceased brought him to her house in Chippendale and introduced him as his new flatmate. 40 One thus has competing affidavit evidence pointing in quite different directions. The different deponents to these affidavits were not cross-examined and, accordingly, it is difficult to resolve the matter simply from their evidence. There is other affidavit evidence, for instance, from Mr George Lucas which is also strongly indicative of the relationship having commenced early in 1997. 41 There are a number of aspects of the plaintiff's evidence which were not satisfactory. For instance he indicated in his affidavit that he was putting aside money that he was getting from boarders to pay the mortgage. This turned out to be a quite untrue statement. Apart from matters of this nature the plaintiff endeavoured to give a detailed picture of his relationship. Notwithstanding the difference in the affidavit evidence it seems to me that the probabilities are that the relationship did commence in April 1997. It is perfectly clear from the evidence that the deceased was careful not to disclose the existence of the relationship to a number of people. In these circumstances it seems to me that is appropriate for me to accept the plaintiff's evidence and that of his witnesses which support him on this aspect. 42 Accordingly, I am satisfied that the relationship commenced in April 1997 and continued until the death of the deceased. I have earlier described some of the incidents of the relationship and, in my view, having regard to the evidence, it was a de facto relationship for the period I have mentioned for the purposes of the Act. Was there a close personal relationship? 43 Although it seems clear on the evidence that there was appropriate domestic support I would not have thought, on the evidence before me, that there was the necessary personal care. Accordingly, I would not find that there was a close personal relationship within the meaning of the Act. The alternative claim under section 6 (1) (d) of the Family Provision Act. 44 It is necessary for the plaintiff to show that he was, at any particular time, wholly or partly dependent upon the deceased person and, at that particular time or any other time, a member of a household of which the deceased person was a member. In the present case clearly the plaintiff was a member of the household and, given the provision of the accommodation, it is also clear that he was dependent upon the deceased for accommodation and other support from time to time. The plaintiff was not working for a large part of the period during which he was living with the deceased. 45 However it is necessary under s 9 (1) of the Family Provision Act that the Court should first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 46 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:- "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition." 47 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. The main judgment was given by Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

48 The factual matters which I have determined in dealing with the claim that the plaintiff was a de facto partner of the deceased lead me to conclude that on the traditional basis there would be the necessary factors warranting the making of the application. The plaintiff was in a relationship with the deceased for some three years and, given the absence of any other responsibilities that the deceased had to other persons except his parents, one would naturally assume some provision might be made by the deceased for the plaintiff. In the event that it is not the appropriate test I will move on to consider whether it is appropriate to make an award in favour of the plaintiff in order to see whether there are prospects of success in respect of its application, although this is strictly not necessary given my finding on the de facto relationship. 49 In applications under the Family Provision Act 1982the 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:- "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 there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

50 I have to consider the situation of the plaintiff. The plaintiff is a single man aged 23 years. He has no dependants and his qualifications enable him to work as a nursing assistant. He has been working in this occupation for several years and is able to earn approximately $400 net per week. He is at an age where he would be able to further his education and progress to a position such as a registered nurse.

51 He has no assets of any substance. I have mentioned earlier that he had previously had a very difficult childhood. He came from a broken home, spent time living on the streets working as a child prostitute and became addicted drugs including heroin. With the help of the deceased and others he seems to have rid himself of this habit and is thus very fortunate in that he might be able to go forward with his life.

52 It is necessary consider any benefits which they plaintiff has received. Two areas became apparent during cross examination of the plaintiff. The first was that the plaintiff had the benefit of occupation of the deceased's unit for two years after the date of death. The parties are agreed that the rental value of the unit was $340 per week which totals $35,360 for two years. In addition over the period since the date of death of the deceased the plaintiff has collected approximately $10,000 from the persons who have been flat mates with him in the unit. 53 The evidence does not disclose any contributions which the plaintiff has made to the acquisition of the property in the deceased's estate. Such contributions as the plaintiff made were contributions towards the household expenses when he was at times working during their period together. However, after the date of death he did spend upwards of $1,000 upwards for repairs to the unit. 54 It is also necessary to look at the situation of others having claims on the bounty of the deceased. In the present case the only other people who fall into that situation are the parents of the deceased, Mr and Mrs Chuck. They have a home in Goulburn valued at $120,000. They have household furniture, a 1993 car worth $10,000 and a joint bank account of few thousand dollars. Mrs. Chuck has some shares worth about $6000 and Mr Chuck has some superannuation, which is invested, in the sum of $100,000 55 Mr and Mrs Chuck do not work and both received the age pension of $306 per fortnight. This is barely sufficient for their needs and clearly they lead a fairly frugal existence. They have not had an easy life and have never been overseas. The longest holiday that they have had is two weeks. Their house needs repainting and they have a number of appliances, which need replacing. 56 It is necessary to see how the plaintiff says that he has been left without adequate or proper provision for his maintenance, education and advancement in life. Originally the plaintiff suggested that he would like to be able to take over the mortgage on the property and continue to live in the property. Clearly this is not possible as the property has to be sold to repay the mortgage and it is apparent from the living expenses of the plaintiff, and his somewhat limited income at the moment, that he is not able to afford to do this. 57 In his most recent affidavit the plaintiff has indicated that he would like to upgrade his qualifications to the level of a registered nurse. Unfortunately he has not given the details of the costs which would be involved in the course which he would need to attend. 58 In this regard I am reminded of what was said by Sheller JA in the Court of Appeal in Singer v Berghouse on 23 July 1992. There his Honour had the following to say:- "Sheller JA (Cripps JA agreeing) said: 'I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet these claims or needs, if they existed. In my opinion, in the circumstances of this case, for the court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum is to do no more than act on speculation and, contrary to the prohibition contained in s9(2) of the Act, to alter the deceased's disposition of his property in the absence of proof that he has inadequately provided for the appellant."

59 It is common knowledge, and I would take judicial notice of the fact, that such courses involve a number of years of full time study during which the plaintiff will need support. The plaintiff also talks of the need to buy a cheap car in order to get to work but he does not quantify the costs involved. 60 We are dealing here with an estate which has been ravaged by the impact of legal costs. Why such a large amount has been incurred for what is, in essence, a simple claim has not been explained. The parties have also chosen to bring the matter on before the estate has been fully quantified by the payment of the deceased's superannuation. This creates further difficulties and in these circumstances the competing claims have to be carefully assessed. 61 The plaintiff's claim is in respect of a de facto relationship of three years' duration. No difference arises because the relationship was a homosexual one. There were no contributions by the plaintiff to the estate. Indeed, the plaintiff has received the two benefits which I have already identified. The $10,000 was partly expended on repairs. The rental value of the unit is a little more problematical. The executrix seems to have told the plaintiff not to pay the mortgage and she has allowed the plaintiff to stay in occupation until his claim was determined. She has not insisted on taking occupancy of the unit and judgment for possession was only obtained a month ago. In these circumstances it does not seem to me that the plaintiff should be regarded as having received a sum equivalent of the full rental value of the premises although, clearly, he has had some benefit. 62 The deceased's parents live in modest circumstances. Although they lent money to the deceased, from time to time during his lifetime, he repaid them these loans. As the deceased never had children, before meeting the deceased, he regarded his sister as deserving of some consideration as he nominated her for the purpose of his superannuation. In his will, made many years before he met the plaintiff, he provided for his parents. He discussed changing his will but he did nothing about it before his death. 63 Given all these factors and the other matters which appear in the evidence it would seem appropriate to make some provision for the further education of the plaintiff. Taking account of the benefits he has already received I make the following orders.

1. The plaintiff receive a legacy out the estate of the deceased in the sum of $10,000.

2. The plaintiff's costs on a party and party basis and the defendant's on an indemnity basis be paid or retained out of the estate of the deceased.

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