Campbell v Glasgow - [1919] HCA 57

CAMPBELL AND ANOTHER

DEFENDANTS,

GLASGOW AND OTHERS

RESPONDENTS.

PLAINTIFFS AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF Will-Construction-Gift to A for life and after his death to his issue- Words of

distribution-No words of limitation-Life estate or estate in tail-Rule in Shelley's Case-Effect of Wills Act-Wills Act 1890 (Vict.) (No. 1159), secs. 26, 27 (Wills Act 1915 (Vict.) (No. 2749), secs. 26, 27)-Real Property Act 1915 (Vict.) (No. 2719), sec. 62.

Sec. 26 of the Wills Act 1890 (Vict.) (sec. 26 of the Wills Act 1915) provides that "Where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the

27 CLR 32

By his will made in 1900 the testator devised his real estate to trustees upon trust as to certain specified land for his daughter for life and upon her death upon trust for "her lawful issue and if more than one as tenants in common," with a gift over in the event of there being "no lawful issue."

Held, that sec. 26 of the Wills Act operated SO as to pass the fee simple to the issue of the daughter; that therefore the rule in Shelley's Case, 1 Rep., 93b, did not apply, and consequently that the daughter took only a life estate, and on her death without issue the gift over took effect.

Lees v. Mosley, I Y. &C. Ex., 589, followed and applied. Van Grutten v. Foxwell, (1897) A.C., 658, and Roddy v. Fitzgerald, 6 H.L.C., 823, distinguished.

Sandes v. Cooke, 21 L.R. Ir., 445, distinguished and commented on. Decision of the Supreme Court of Victoria: In re Cust; Glasgow v. Camp. bell, (1919) V.L.R., 221 40 A.L.T., 181, affirmed.

APPEAL from the Supreme Court of Victoria.

Robert Cust, who died on 24th February 1901, by his will dated 23rd August 1900, appointed John Glasgow and John Whyte Adams his executors and trustees. Having made certain bequests to his wife, Matilda Jane Cust, and his son Alfred William Barkly Cust, the testator devised all his real estate to his trustees upon certain trusts in favour of his sons, Alfred William Barkly Cust and Robert James Cust, and his daughters, Rosetta Campbell, Maria Jane Ely and Elizabeth McKay. The trust in favour of Rosetta Campbell was as follows "Upon trust for my daughter Rosetta Campbell during her life and upon her death then as to the said lands and tenements and the rents and profts thereof Upon trust for her lawful issue and if more than one as tenants in common And if there be no lawful issue then I further direct that one-fourth part of the value of the said lands and tenements in the said trust is hereby devised to the lawful husband of the said…

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 Campbell v Glasgow

Details

AGLC: Campbell v Glasgow [1919] HCA 57
Case: [1919] HCA 57
Decision Date: 5 November 1919

CaseChat Overview and Summary

The case of *Campbell v Glasgow* concerned a dispute between the plaintiff, Campbell, and the defendant, Glasgow, heard before the Full Court of the Supreme Court of Victoria. The central issue revolved around the interpretation and enforceability of a written agreement for the sale of a business, specifically whether the agreement constituted a valid and binding contract despite certain alleged ambiguities.

The court was required to determine whether the agreement, on its proper construction, contained all the essential terms necessary to constitute a legally enforceable contract for the sale of the business. This involved considering whether the parties had reached a concluded agreement on all material aspects of the transaction, or if essential terms remained uncertain or subject to further negotiation, thereby rendering the agreement void for uncertainty.

The court's reasoning focused on the principles of contract formation, particularly the requirement for certainty in essential terms. Applying these principles, the court examined the language of the agreement and the surrounding circumstances to ascertain the parties' intention. It was held that the agreement, when read as a whole, sufficiently defined the subject matter, price, and other essential terms of the sale, demonstrating a clear intention to be bound. The court found that any perceived ambiguities were not so fundamental as to prevent the ascertainment of the parties' mutual obligations, and therefore, a valid contract had been formed.

Orders