Bettina Bradbury - Carolines Dilemma: A colonial inheritance saga

Carolines Dilemma

BETTINA BRADBURY is a New Zealand-born historian who spent most of her career at York University, Canada writing womens and family history. Her most recent book, Wife to Widow: Lives, Laws and Politics in Nineteenth-Century Montreal, has won multiple awards. She has now retired to Wellington but spends considerable time in Australia where one of her two daughters lives. Great-great grandparents on both sides of her family migrated to the Pacific in the 19th century, spending some time in the same colonies as Caroline Kearney. On her fathers side Priors and Fordhams left England and became Methodist missionaries and ministers in Fiji, South Australia and then New Zealand. On her mothers side, three German Jewish Hallenstein brothers provisioned miners during the gold rush in Victoria before sending Bendix and his wife, Mary Mountain, to set up business during the Otago gold rush in New Zealand.

Carolines Dilemma

A COLONIAL INHERITANCE SAGA

Bettina Bradbury

A NewSouth book

Published by

NewSouth Publishing

University of New South Wales Press Ltd

University of New South Wales

Sydney NSW 2052

AUSTRALIA

newsouthpublishing.com

Bettina Bradbury 2019

First published 2019

This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act , no part of this book may be reproduced by any process without written permission. Inquiries should be addressed to the publisher.

A catalogue record for this book is available from the National Library of Australia

ISBN: 9781742236605 (paperback)

9781742244662 (ebook)

9781742249155 (ePDF)

Design Josephine Pajor-Markus

Cover design Nada Backovic

Cover images (background) Edward Kearneys Memorandum, written around 1876. Held by family members. (bottom) Arthur Bowes Smyth drawings from his journal A Journal of a Voyage from Portsmouth to New South Wales and China in the Lady Penrhyn ..., 178789. Mitchell Library, State Library of New South Wales. (silhouette) clipartbarn.com.

All reasonable efforts were taken to obtain permission to use copyright material reproduced in this book, but in some cases copyright could not be traced. The author welcomes information in this regard.

Contents

Introduction

C aroline Kearney (ne Bax) had much to worry about as her husband hovered near death in a Melbourne hotel room in October 1865. She and Edward Kearney had been married for twelve years. They had six children aged from not yet two to nine. Caroline was 31. Unlike her older sister, Eleanor, she had little if any experience in earning a living. How would she manage as a widow and sole parent? What would happen to the sheep station, Lockhart, they had worked so hard to improve over the last seven years? Might her eldest son, Edward, inherit it one day? Could her brother-in-law have sought to influence the provisions of Edwards will, just as he had meddled in so many aspects of their lives in the last year?

Caroline, Edward and his brother William had set out for Melbourne from Lockhart in the western Wimmera country of Victoria in late August as Edwards health deteriorated. The six children remained in the care of station hands, or perhaps of her sister or parents. This was a bone-rattling, long and uncomfortable trip at the best of times. For a man dying and in pain it would have been excruciating. It took days to travel the 200 kilometres by coach or bullock cart along the rough, old droving and gold rush tracks from Lockhart, on the border of South Australia and Victoria, south-west to the small port of Robe. There they boarded the coastal clipper Penola. After a rough voyage they docked in Melbourne on 11 September.

They took rooms at the Washington Hotel on the corner of Collins and William streets. Edward secured the services of a Melbourne law firm to draft his will. He signed the final copy on 30 September. Caroline had good reason to dread its contents, but what she learned when the will was read following his death on 20 October undoubtedly came as a complete shock.

Edward bequeathed Caroline a heart-breaking dilemma. In most British settler colonies, as in England and most of the American states, the English common law gave husbands vast power to do what they wished with their property. Anything Caroline had brought to their marriage and all the property they had acquired during their lives together was understood to belong to Edward. Few if any other legal systems allowed men such a claim on virtually all family assets, or so much liberty to avoid sharing these with their widows and their children. Edwards will dramatises the immense power that the English law gave husbands over all family property. In England and across the colonies British men understood their right to decide what to do with their own property in a final will as fundamental, akin to trial by jury or the right to contest unlawful detention, habeas corpus.

The prominent Australian legal scholar Professor Rosalind Croucher (formerly Atherton) has aptly described testamentary freedom as the power to disinherit wives. Yet Edward was not proposing to cut Caroline off. He did not seek to leave her or the children penniless. One hundred pounds was a much more generous amount than working-class widows could dream of, and more than many lower to middling middle-class widows could hope for. But to claim that support Caroline would have to leave the colony she had lived in since she was seventeen and sever her ties with her parents and siblings. Caroline was English. She had never been to Ireland.

What could she do? Remain in Australia with her six children and try to raise them with help from her family? Then she would lose her claim on the promised economic support from the assets that were understood to belong to Edward alone. Or would she have to agree to this forced family migration?

I first learned of the tragic choice she faced as a widow when I read a legal account of her fight against Edwards final wishes. At the time I was planning to write a broad history highlighting the importance of issues of marriage, property, and especially inheritance, in 19th-century settler colonies of the British Empire. Kearneys attempt at testamentary extradition struck me as one of the most draconian provisions I had encountered in 19th-century wills.

Why was this his final wish? How did Caroline react? I knew from the legal report of the case that she contested this aspect of his will. What decisions had the courts and judges made? What had happened to her and the children? Did she go to Ireland? If so, did she stay there? These are questions I have been pondering and seeking to answer ever since I first encountered the case. I began to think of wills in part through the words that the Irish novelist Colum McCann attached to a very different situation. Could final testaments be read as the collision point of stories? I wanted to discover the colliding threads ultimately expressed in Edwards final wishes. I started trying to write Carolines story, thinking it might merit one or two chapters in my book. I began building family trees using the genealogical sources available online and elsewhere. I visited archives and contacted relatives. Carolines history and her predicament seduced me. As I gathered more information I decided that their history deserved a whole book. So I put aside my broader study and began to explore the Kearney and Bax family histories as settler colonisers in 19th-century Australia.