Fisher v Wentworth

This case concerned an appeal from the Supreme Court of New South Wales regarding the construction of a testator's will. The dispute centred on the ultimate destination of the original one-seventh share of the testator's son, D'Arcy Wentworth, in the residue of the estate. D'Arcy Wentworth had survived all his siblings but died without issue, leading to questions about whether his share passed as on intestacy, to his estate, or in some other manner.

The legal issues before the court were whether the testator's will effected an absolute gift of the residue to his children, subject to certain trusts, and if those trusts failed, whether the absolute gift would take effect. Specifically, the court had to determine if the provisions for the failure of trusts engrafted on D'Arcy Wentworth's share, including a survivorship clause, resulted in an intestacy regarding his original share, or if his personal representatives were entitled to it.

The High Court, affirming the decision of the Supreme Court, held that D'Arcy Wentworth's share of the residue vested absolutely in his personal representatives. The court applied the principle established in *Hancock v. Watson*, which states that if an absolute gift is made in the first instance, and subsequent trusts engrafted on that gift fail, the absolute gift takes effect to the exclusion of residuary legatees or next-of-kin. The court reasoned that the testator's initial division of the ultimate residue among his surviving children constituted an absolute gift, and the subsequent trusts and survivorship provisions were engrafted onto this absolute interest. As the trusts for D'Arcy Wentworth's issue failed, and the survivorship clause did not operate in the circumstances of his death, the original absolute gift to him remained effective.

The appeal was dismissed with costs.