ON APPEAL FROM THE SUPREME COURT OF ill-Mutual wills-Husband and wife-Agreement to benefit wife's relatives-Wills 1937.
made by husband and wife accordingly-Death of wife-Fresh will by husband after accepting benefit-Death of husband-Action by original beneficiaries to MELBOURNE,
enforce agreement-Constructive trust. June 8-11.
Contract-Statute
of Frauds Contract or sale of lands **-Agreement to leave property by will-Parol agreement-Land owned at date of agreement and at date SYDNEY,
of death-Instruments Act 1928 (Vict.) (No. 3706), sec. 128-Property Law Act Sept. 2.
1928 (Vict.) (No. 3754), sec. 53. Latham C.J.,
It was orally agreed between a husband and his wife that the wife should leave her property by will to the husband, and that, in consideration thereof,
the husband should make a will leaving his property to four named relatives of the wife in the event of her predeceasing him and should not revoke the will. Wills were executed by husband and wife accordingly. The wife pre- deceased the husband, and he took under her will. He subsequently made a will revoking his prior will and benefiting persons other than the relatives of the wife. On his death the latter will was admitted to probate. At the date of the agreement and also at her death the wife had real estate. At the time of his death the husband had real estate. It was found that the husband and wife entered into the agreement with the intention of creating binding obligations.
Held that the agreement created a constructive trust which was enforceable in equity by the wife's relatives against the husband's executors. The agree- ment was not within sec. 128 of the Instruments Act 1928 (Vict.) as a "contract or sale of lands," because it related, not to specific property, but to property of whatever character at the time of death, and therefore it could not be said, when the agreement was made, that it concerned an interest in land and, the trust being constructive, sec. 53 of the Property Law Act 1928 (Vict.) did not require that it be manifested by writing.
Dufour v. Pereira, (1769) Dick. 419; 21 E.R. 332, applied. Horton v. Jones, (1935) 53 C.L.R. 475, distinguished. Decision of the Supreme Court of Victoria (Gavan Duffy J.): Renfrew V. Birmingham, (1937) V.L.R. 180, affirmed.
APPEAL from the Supreme Court of Victoria.
The respondents, Elsie Eliza Mabel Renfrew, Alexander Renfrew, Catherine Fulton Johnston and William Alexander Johnston, an infant suing by his next friend, William Johnston, brought an action in the Supreme Court of Victoria against the appellants, Gladys Amy Birmingham, Colin Birmingham, Edna Retta Birmingham, Ruby May Johnson, Annie Kate Barnes, Emily Stenhouse, Vera Smith
and Alan Manson Corr. The plaintiffs were relatives of the late Grace Alexander Russell, whose husband was Joseph Russell. The defendants were relatives or friends of the husband and Alan Manson Corr being one of his executors.
On 1st April 1932 Grace Alexander Russell made a will in which,…
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.
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AGLC
Birmingham v Renfrew [1937] HCA 52
Case
[1937] HCA 52
Decision Date
CaseChat Overview and Summary
The case of *Birmingham v Renfrew* involved an appeal to the High Court of Australia from the Supreme Court of Victoria. The dispute concerned the enforceability of an alleged oral agreement between a husband and wife regarding their testamentary dispositions. The wife's relatives, who were beneficiaries under the husband's initial will, sought to enforce this agreement against the husband's executors after he had made a subsequent will that largely disinherited them.
The primary legal issues before the court were whether a binding agreement existed between the husband and wife concerning their wills, and if so, whether this agreement was enforceable in equity by the wife's relatives, despite them not being parties to the agreement. Additionally, the court had to determine if the agreement was rendered unenforceable by the provisions of the *Instruments Act 1928* (Vict.) (specifically section 128, concerning contracts for the sale of land) or the *Property Law Act 1928* (Vict.) (section 53, concerning the creation of trusts).
The High Court, affirming the decision of the Supreme Court of Victoria, held that the agreement between the husband and wife created a constructive trust that was enforceable in equity by the wife's relatives. The court reasoned that the agreement, by which the wife left her property to her husband in consideration of him leaving his property to her relatives, was intended to create binding obligations. Despite the husband's subsequent revocation of his initial will, the court applied the principle established in *Dufour v. Pereira*, that where parties make mutual wills based on an agreement, the survivor who benefits from the deceased's will is bound by the agreement and holds the property upon a constructive trust for the intended beneficiaries. The court further found that the agreement did not fall within section 128 of the *Instruments Act 1928* because it did not relate to specific property at the time of its making, but rather to the husband's property generally at the time of his death. Consequently, section 53 of the *Property Law Act 1928* was also inapplicable as it did not require constructive trusts to be manifested in writing.