Hindmarsh v Quinn - [1914] HCA 27

OF A. which the first original part is divided before the time of distri-

bution, i.e., before the death of his widow, appears to assume that

BROWNFIELD all the persons who could be entitled to share in the fund must

be determined before that event, SO that when it occurs the classes of persons to take are definitely closed.

Apart from these considerations I think that the prima facie meaning of the words " to divide among Samuel Brownfield the widower of my sister Ann Brownfield and his sons who shall attain the age of twenty-five years or the survivors of them the said Samuel Brownfield and his sons," followed by words directing immediate payment on the death of the testator's widow, is to direct a division amongst designated living persons provided that they survive the widow and attain twenty-five. The other matters to which I have referred strengthen this view. On the whole, therefore, I am of opinion that the Brownfield gift is not a gift to a class, but a gift to designated living persons, and that in the events that have happened it is divisible amongst the five sons who survived the testator's widow.

The appeal should therefore be allowed.

BARTON J. As to the Brownfield bequest I agree in thinking that it is a gift to specified persons on a contingency as to survivorship and another as to age, and that, as Samuel Brownfield died while the testator's widow was alive, the seventh share of the first "original part" is to be divided among his five sons, the survivors at the time of distribution, who had attained the age of twenty-five. Samuel Brownfield is named as the widower of the testator's "sister Ann Brownfield;" if the possible sons of a second marriage were to be included, none such having been born at the testator's death, then the five sons by the first marriage, aged twenty-five years and upwards, would have had to wait another twenty-five years at least before they could receive anything, which does not accord with the testator's direction that each son was to be paid his share on attaining twenty-five. These circumstances, together with the language of the bequest itself, indicate in my view that the sons intended were the sons of the marriage with Ann Deane. There was a nexus of affinity between the testator and the sons of Samuel Brownfield by his

17 CLR 623

marriage with the testator's sister, but there is nothing to show that the testator knew or had ever seen Elizabeth Reeves, the second wife, whom Brownfield, it seems, married in England; or that he even knew of her existence.

In addition to Stopford v. Chaworth (1), there was eited the case of In re Parrott (2), which gives some assistance as to construction.

I may point out that if there is any obscurity or ambiguity in construction as to whether the gift is to a class some of whom may be outside 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 Hindmarsh v Quinn

Details

AGLC: Hindmarsh v Quinn [1914] HCA 27
Case: [1914] HCA 27
Decision Date: 17 April 1914

CaseChat Overview and Summary

The case of *Hindmarsh v Quinn* involved an appeal to the High Court of Australia from the Supreme Court of New South Wales. The dispute concerned an action of ejectment brought by the respondent, Ann Quinn, as administratrix of her late husband Lawrence Quinn's estate, against the appellant, Thomas Hindmarsh. Hindmarsh sought to remain in possession of certain land based on an agreement he had entered into with Lawrence Quinn prior to his death.

The central legal issue before the High Court was whether the agreement between Hindmarsh and Lawrence Quinn conferred upon Hindmarsh a right to possession of the land that would defeat an action of ejectment brought by the legal owner. Specifically, the court had to determine the nature and extent of the rights granted by the agreement, particularly in light of Lawrence Quinn's death and the respondent's subsequent entitlement to the legal estate.

The High Court, in affirming the decision of the Supreme Court, reasoned that the agreement, while granting Hindmarsh a right to enter and manage a dairy farm on the land and share in the profits, did not confer exclusive possession upon him. The agreement explicitly stated that it did not create a tenancy and that Lawrence Quinn retained the right to direct where Hindmarsh could reside on the property. Furthermore, the court considered that even if the agreement granted a licence coupled with an interest or a profit à prendre, such rights did not amount to a legal estate in land that would be a defence to an action of ejectment. The court concluded that Hindmarsh's rights were limited and did not extinguish the legal owner's right to possession.

Orders