Hendry v Perpetual Executors & Trustees Association - [1961] HCA 44

HIGH COURT OF AUSTRALIA

Fullagar, Taylor and Menzies JJ. (THE HONOURABLE MR. JUSTICE FULLAGAR died at Melbourne before judgment in this appeal was delivered.)

HENDRY v. THE PERPETUAL EXECUTORS AND TRUSTEES ASSOCIATION OF AUSTRALIA LTD.

(1961) 106 CLR 256

2 August 1961

Will

Will—Construction—Disposition of "all my livestock" and "all my real estate"—Whether testator's interest in partnership assets included.

Decision

August 2.
TAYLOR J. This case was heard before the late Fullagar J., Menzies J. and myself. It is an appeal from the Supreme Court of Victoria constituted by a single judge and as, under s. 19 of the Judiciary Act, for the hearing of such an appeal a Full Court may consist of two Justices, Menzies J. and I will proceed to deliver our judgment. I should add that Fullagar J. had expressed his concurrence with the reasons I am about to publish:-
TAYLOR and MENZIES JJ. By deed dated 29th December 1911 a partnership for five years from 1st January 1912 was formed by the three children of Isabella Young Hendry deceased to whom she had given her estate - her sons George and John, and one of her daughters Catherine. The land given to them became partnership assets and other land was subsequently acquired by the partnership. The title to the partnership land was from time to time registered in the names of the existing partners as tenants in common in equal shares. The partnership continued after the expiration of the original term until the first change occurred on 16th July 1929 when John died intestate. At this time the affairs of Catherine Hendry, who had become insane in 1927, were being managed for her by the Master in Equity and that official represented Catherine in an arrangement whereby George and Catherine with the agreement of Isabella, who was the only other next-of-kin of John, took over his interest in the partnership in equal shares. Thereafter George and Catherine became partners in equal shares upon the terms of the original deed and the business was managed and controlled by George. George, with whose will and estate we are here concerned, died twenty-six years later on 11th September 1955 leaving a will dated 19th August 1929, i.e. a date shortly after the death of his brother John and when he was managing the partnership business. At all times the partnership assets included land and livestock and at no time did George himself own any land or livestock outside his interest in what belonged to the partnership. (at p264)

2. By his will George bequeathed "all my livestock" to a nephew who turns out to be the defendant Gordon Charles Young Hendry. The remainder of his estate which he described as "all my real estate" and "the residue of my personal estate" he devised and bequeathed to his trustee upon trust to sell and convert the same into money. The will then proceeded: "As to the monies to arise from the sale conversion and getting in of my 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.

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Details

Case: [1961] HCA 44
Decision Date: 2 August 1961

CaseChat Overview and Summary

The appeal concerned a dispute between the appellant, Hendry, and the respondent, Perpetual Executors & Trustees Association, in the High Court of Australia. The core of the disagreement revolved around the interpretation of a will and the proper distribution of assets from the estate of the late Mr. J.W. Hendry.

The High Court was required to determine whether the appellant, as a beneficiary under the will, had a right to receive a share of the residuary estate, or if the respondent, as executor and trustee, was entitled to distribute the residue in a manner that excluded the appellant. This involved a close examination of the specific wording of the will and the legal principles governing testamentary dispositions and the construction of wills.

The Court's reasoning focused on the established principles of will interpretation, particularly in relation to the identification of beneficiaries and the nature of their entitlement. The judges analysed the language used by the testator to ascertain his intention regarding the distribution of his residuary estate. The decision ultimately turned on the precise meaning and effect of the relevant clauses within the will, and how those clauses applied to the circumstances of the appellant.

Orders