Gleeson v Fitzpatrick - [1920] HCA 81

GLEESON AND OTHERS

DEFENDANTS,

FITZPATRICK AND OTHERS

RESPONDENTS.

PLAINTIFFS AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF Will-Construction-Legary-Whether payable out of particular fund- Rest and Practice-AppeatCosts---Construction of will-Party not directly interested in

question decided-Trusteer costs.

A testator by his will gave a sum of £1,760 to certain beneficiaries in equal shares. He then gave all the rest and residue of the money " which at his death might be in his house or to the credit of his account at his bank to A " subject only to the payment thereout of his funeral and testamentary expenses and a certain bequest. He then devised and bequeathed all his real and personal estate which he had not otherwise disposed of by his will to trustees upon trust as to certain land for certain other beneficiaries, and as to the rest and residue of his real and personal estate for certain other bene-

Held, that the legacy of £1,760 was payable out of the money which at the testator's death might be in his house or to the credit of his account at his

The Supreme Court having by a decree declared that the legacy of £1,760 was not payable out of such money, but was a general legacy payable out of the general personal estate not specifically disposed of, and that 80 far as such personal estate was insufficient to meet the legacy of £1,760 it was not payable out of the real estate, the beneficiaries to whom the legacy of £1,760 was given appealed to the High Court against the decree so far as it declared that the £1,760 was not payable out of such money, and by special leave also appealed

29 CLR 30

against the decree so far as it declared that so far as the personal estate not specifically disposed of was insufficient to meet the legacy of £1,760 it was not payable out of the real estate. The appellants having succeeded in the first-mentioned appeal,

Held, by Knox C.J. and Rich J. (Isaacs J. dissenting), that the appellants should pay to the beneficiaries to whom the real estate was devised their costs of the appeal.

Held, also, that the trustees should have their costs as submitting respon- dents out of the fund from which the £1,760 was payable.

Decision of the Supreme Court of New South Wales (Owen A.J. in Eq.) reversed in part.

APPEAL from the Supreme Court of New South Wales.

The will of John Clancy of Pleasant Hills in the State of New South Wales, deceased, was, SO far as is material, as follows :- "I give and bequeath the sum of £1,760 to William Gleeson, Patrick Gleeson, John Gleeson, Daniel Gleeson, Joseph Gleeson, Bridget Gleeson, Margaret Gleeson, Catherine Gleeson, Nora Gleeson and Maria Gleeson all of near Pleasant Hills aforesaid in equal shares I give and bequeath all the rest and residue of the money which at my decease may be in the house or standing to the…

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 Gleeson v Fitzpatrick

Details

AGLC: Gleeson v Fitzpatrick [1920] HCA 81
Case: [1920] HCA 81
Decision Date: 8 December 1920

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 regarding the construction of a testator's will. The primary dispute involved the beneficiaries of a £1,760 legacy (the Gleesons) and the beneficiary of the residue of the testator's money in his house or bank accounts (Mrs. Fitzpatrick), as well as beneficiaries of the testator's real and personal estate (the Clancys). The Supreme Court had declared that the £1,760 legacy was a general legacy payable from the general personal estate, and not from the specific fund of money in the house or bank.

The legal issues before the High Court were whether the £1,760 legacy was a specific bequest payable out of the money in the testator's house or at his bank, and if the general personal estate was insufficient, whether it was payable out of the testator's real estate. The Gleesons appealed against the Supreme Court's determination that the legacy was not payable from the specified fund and, by special leave, also appealed against the finding that it was not payable from real estate if the personal estate was insufficient.

The High Court, by a majority (Knox C.J. and Rich J., with Isaacs J. dissenting), held that the testator had created a distinct fund comprising money in his house and at his bank, and that the £1,760 legacy was intended to be paid specifically from this fund. The Court reasoned that the wording of the will, particularly the phrase "all the rest and residue of the money which at my decease may be in the house or standing to the credit of my account current or on fixed deposit at my bankers," indicated an intention to deal with this specific money separately from the rest of the testator's estate. The majority distinguished the case from *Higgins v. Dawson*, finding the language in the present will sufficiently different to support a specific bequest from the identified fund.

The appeal was allowed in part, with the order varied to declare that the £1,760 legacy was payable out of the money in the testator's house and at his bank, and not from the general personal estate. The costs of the appellants, Mrs. Fitzpatrick, and the trustees were ordered to be paid out of this specific fund, with the trustees' costs to be as between solicitor and client. The costs of the respondents Clancy were ordered to be paid by the appellants, as they had been brought before the court by the appellants for their own protection.

Orders