transfer--Portnership share-Bank deposits-Crown leaseholds-Chattels per- sonal-Effectuation of gift-Creation of imperfect trust- - Assignment---Notic -Judicature Act 1876 (Qd.) (40 Vict. No. 6), sec. 5 (VI.)-Bills of Sale Act 1891 (Qd.) (55 Vict. No. 23), secs. 3 (I.), 4-Guardianship and Custody of April 24, 25 Infants Act 1891 (Qd.) (55 Vict. No. 13), secs. 3, 5.

A domiciled resident of Queensland, being about to die, executed in 1899 a deed of gift voluntarily conveying to his wife and several infant children in equal shares the whole of his personalty. This included chattels in posses- sion (household goods, implements, and live stock), promissory notes, book- debts, money secured by mortgage of land in New South Wales held under the Real Property Act (N.S.W.), money on current account and fixed deposit in certain banks, a Crown leasehold in Queensland called Chudleigh Park Station, and a partnership interest in another pastoral property called Mount Sturgeon. Nothing, beyond the execution and delivery of the deed, was done in the direction of perfecting the transfer of the various properties before the death of the grantor, which occurred a few days later. His widow, being the executrix of his will of realty, and also legal guardian of the children under the Guardianship of Infants Act 1891 (Qd.), brought an administration suit against the children to decide whether she was to share in the personalty under the deed or as on an intestacy.

4 CLR 1050

Held: The deed was intended to take effect as an absolute conveyance, and, if ineffective for that purpose, could not be made effectual as a declaration of trust. The effect of the deed depended upon whether the donor had, with regard to each particular item of property in question, done all that was necessary on his part to place the donees in the position of the donor, as

Milroy v. Lord, 4 De G. F. &J., 264, explained and applied. Held therefore that :-(1) The assignment of the chattels in possession fell under the Bills of Sale Act 1891 (Qd.) (55 Vict. No. 23), and was therefore ineffectual for lack of registration. But semble, the defect might be cured, as to SO much only of the chattels as still remained in specie, by registration of

(2) The mortgage debt secured on land in New South Wales could only be transferred in the mode prescribed by the Real Property Act of that State, and was not effectually conveyed by the deed of gift.

(3) The Mount Sturgeon partnership share, being purely an equitable interest, was effectually conveyed by the deed.

(4) The Chudleigh Park Crown leasehold, which was by the law of Queens- land transferable only by an instrument in statutory form duly executed and registered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anning v Anning

Details

AGLC: Anning v Anning [1907] HCA 13
Case: [1907] HCA 13
Decision Date: 4 May 1907

CaseChat Overview and Summary

The case involved a dispute between Lillian Constance Anning, the widow and executrix of the estate of William Anning, and her five infant children, the respondents. William Anning, shortly before his death, executed a deed of gift voluntarily conveying his entire personal estate to his wife and children in equal shares. The widow, as executrix and legal guardian of the children, initiated an administration suit to determine whether she was to share in the personalty under the deed or as on an intestacy. The Supreme Court of Queensland had previously held that the deed constituted a valid declaration of trust, operating as an immediate irrevocable gift.

The High Court was required to determine the effectiveness of the deed of gift in transferring various categories of the deceased's personal property to the donees. Specifically, the court had to consider whether the donor had performed all necessary acts to perfect the gift according to the nature of each asset, applying the principle that an imperfect gift cannot be made effectual by treating it as a declaration of trust. The legal issues included the validity of the assignment of chattels personal, promissory notes, book debts, bank deposits, a Crown leasehold, and a partnership share, particularly in light of statutory requirements for transfer and registration.

The Court, applying the principles from *Milroy v. Lord*, held that the effectiveness of the gift depended on whether the donor had done all that was necessary on his part to place the donees in a position to claim the property. The assignment of chattels personal was found to be ineffectual due to non-compliance with the Bills of Sale Act 1891 (Qd.). The mortgage debt was not effectually conveyed as it required adherence to the Real Property Act of New South Wales. The Crown leasehold was also not effectively transferred due to the absence of a statutory instrument and registration. Promissory notes did not pass as they required endorsement. However, the partnership share, being an equitable interest, was effectually conveyed. The bank deposits and book debts were held to have passed, with differing views on the sufficiency of notice under the Judicature Act 1876 (Qd.), but ultimately considered perfected due to the donee-executrix's legal standing to receive and discharge the debts.

The Court ordered that the costs of the administration action be paid out of the estate. The appeal was allowed in part, with the High Court determining the extent to which the deed of gift had effectively transferred the various assets of the deceased's personal estate to the donees.

Orders