ON APPEAL FROM THE SUPREME COURT OF Testator's Family Maintenance-Claim-Justification-Order-Effectiveness-Duty H. -
and discretion of Art-Appeal-Further evidence-Admittance by appellate courtCosts-Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 (N.S.W.) (No. 41 of 1916-No. 30 of 1938)-Equity Act 1901-1947 (N.S.W.) (No. 24 of 1901-No. 41 of 1947), S. 84.
If the Court thinks that a claim under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 (N.S.W.) is justified it should seek ways to give effect to it. Such a claim should only be refused where it is clear that it is impossible to make an effective order.
Upon an appeal against an order under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938, the appellate court should admit further evidence if that evidence would be likely materially to assist the court in the discharge of its duty.
So held by Dixon, Williams and Kitto JJ. Observations by Jordan C.J. in In re the Will of Gilbert, (1946) 46 S.R. (N.S.W.) 318, at pp. 323, 324; 63 W.N. 176, at pp. 179, 180 as to the proper approach of an appellate court on an appeal from an order under the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938, approved by Dixon, Williams and Kitto JJ.
Decision of the Supreme Court of New South Wales (Full Court), reversed. [EDITOR'S NOTE:-On 14th November 1951 the Judicial Committee of the Privy Council granted special leave to appeal from the decision of the High Court.]
APPEAL from the Supreme Court of New South Wales. 1951.
Herbert Ellis, of No. 2 Woid's Avenue, Hurstville, New South Wales, electrical engineer, died on 28th July 1949, leaving a will dated 27th June 1947, of which probate was granted by the Supreme Court of New South Wales in its probate jurisdiction on 15th February 1950 to Edie Maude Leeder, the executrix named therein. By his will the testator left to his executrix a genuine Chesterfield wardrobe, a Spanish mahogany wardrobe and a grandfather clock, valued at about £45. He bequeathed the rest and residue of his furniture to his wife Nance Ellis and devised all his real estate wheresoever situate and bequeathed the rest and residue of his personal estate of whatsoever kind and wheresoever situate subject to the payment of his just debts, funeral and testamentary expenses to the said Edie Maude Leeder.
Including the grandfather clock and the Spanish mahogany wardrobe specifically referred to in the will, there not being any knowledge or record of a genuine Chesterfield wardrobe", the total furniture was valued at £120 15s. Od., but all the items thereof were claimed by the testator's widow, Nance Ellis, as her property, she alleging that they had been purchased out of moneys provided by her.
The only other asset in the testator's estate was the cottage, No. 2 Woid's Avenue, Hurstville. The value of the land and cottage as at the date of the testator's death, as given by the Valuer-General upon a valuation…
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
Ellis v Leeder [1951] HCA 44
Case
[1951] HCA 44
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, Nance Ellis, was the widow of Herbert Ellis, who had applied for maintenance out of her deceased husband's estate under the *Testator's Family Maintenance and Guardianship of Infants Act 1916-1938* (N.S.W.). The respondent, Edie Maude Leeder, was the executrix of the will. The testator had bequeathed most of his estate, including his real estate and residuary personal estate, to the respondent, while leaving a small amount of furniture to the appellant. The appellant claimed the furniture was her property, leaving the cottage as the only significant asset in the estate, which was subject to a substantial mortgage.
The central legal issues before the High Court were whether the courts below had erred in refusing to make an order for maintenance for the widow, and whether the Supreme Court had erred in refusing to admit further evidence on appeal regarding the value of the testator's cottage. The widow's application had been dismissed by the primary judge and that decision was affirmed by the Full Court of the Supreme Court, both on the basis that the estate was likely insolvent and therefore no effective order for maintenance could be made.
The High Court, comprising Dixon, Williams and Kitto JJ., held that the approach taken by the lower courts was incorrect. They stated that if a claim under the Act is justified, the court should seek ways to give effect to it and should only refuse it where it is clear that an effective order cannot be made. The Court found that the validity of the respondent's claimed debt against the estate was doubtful and that the value of the cottage, particularly after the removal of land sales control, was likely significantly higher than the probate valuation. The Court also held that the Supreme Court had erred in refusing to admit further evidence regarding the cottage's value, stating that an appellate court should admit further evidence if it would materially assist in discharging its duty, especially in cases where a miscarriage of justice may have occurred.
The High Court allowed the appeal, setting aside the orders of the Supreme Court and the primary judge, except for the order as to costs of the initial application. The Court directed that the executrix hold the whole of the real and personal estate on trust for the appellant absolutely, in lieu of the dispositions in the will. The respondent was ordered to pay the costs of both the appeal to the Supreme Court and the appeal to the High Court.