RESPONDENTS. DEFENDANTS, Contract-Agreement to make a will in person's favour-Promise to leave " my fortune
-Interest in land-No note or memorandum in writing--Statute of Frauds- 1934-1935. Severability of contract-Uncertainty-Conveyancing Act 1919-1930 (N.S.W.) (No. 6 of 1919-No. 44 of 1930), sec. 54A*.
The plaintiff sued the defendants, the personal representatives of J., for damages for breach of an oral agreement whereby J. had promised to make a will in the plaintiff's favour leaving her his "fortune," consisting of a four- sevenths interest under his deceased father's will and his insurance policy. The plaintiff promised to look after J. and make a home for him for the rest of his life, and, according to her evidence at the trial, the plaintiff performed that promise. At the time the agreement was made the estate of J.'s father included investments on mortgage of real estate. J. had become entitled to four one- seventh shares in this estate as next of kin of certain of his children who had
Held that the agreement was unenforceable :- By Rich, Starke and Dixon JJ., on the grounds that it fell within the provisions of the Statute of Frauds, in that at the time it was made the Sec. 54A of the Conveyancing Act
charged or by some other person there- 1919-1930 (N.S.W.) provides: " (1)
unto by him lawfully authorized. (2) No action or suit may be brought upon
This section applies to contracts any contract for the sale or other dis- position of land or any interest in land,
commencement of the Conveyancing unless the agreement upon which such
(Amendment) Act 1930, and does not action or suit is brought, or some
affect the law relating to part perform - memorandum or note thereof, is in
ance, or sales by the court." writing, and signed by the party to be
estate of deceased's father comprised interests in land, i.e., investments upon mortgage of real estate and that the promise to leave insurance moneys by will was not severable from the rest of the contract and fell with it.
By Starke, Evatt and McTiernan JJ., on the ground that it was indefinite and void for uncertainty.
Decision of the Supreme Court of New South Wales (Full Court) Horton V. Jones, (1934) 34 S.R. (N.S.W.) 359; 51 W.N. (N.S.W.) 126, affirmed.
APPEAL from the Supreme Court of New South Wales.
The appellant, Nonie Ethel Horton, brought an action in the Supreme Court of New South Wales against Elsie Marriott Jones, William James Harding and Cecil Purser, the executrix and executors of the estate of Gordon Philip Jones, deceased. By the first count the appellant alleged that in or about June 1928 the said Gordon Philip Jones agreed for a certain consideration, which was duly supplied, to make a will containing certain dispositions in her favour. The appellant also sued in other counts for £423 12s. for work done and services rendered by the appellant to Jones at his…
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
Horton v Jones [1935] HCA 7
Case
[1935] HCA 7
Decision Date
CaseChat Overview and Summary
The plaintiff, Horton, sued the defendants, the personal representatives of the deceased Gordon Philip Jones, for breach of an alleged oral agreement. Horton claimed that Jones had promised to make a will in her favour, leaving her his "fortune," which included his interest in his deceased father's estate and an insurance policy, in return for her promise to look after him and make a home for him for the rest of his life. Horton asserted that she had performed her part of the agreement. The defendants argued that the agreement was unenforceable.
The legal issues before the High Court were whether the alleged oral agreement was enforceable, particularly in light of the Statute of Frauds (embodied in section 54A of the Conveyancing Act 1919-1930 (N.S.W.)), and whether the terms of the agreement were sufficiently certain to constitute a binding contract. Specifically, the court had to determine if Jones's interest in his father's estate constituted an interest in land for the purposes of the Statute of Frauds, and if so, whether the promise to leave the insurance moneys was severable from the promise relating to the estate.
A majority of the High Court, comprising Rich, Starke, and Dixon JJ., held that the agreement was unenforceable because it fell within the provisions of the Statute of Frauds. They reasoned that at the time the agreement was made, the deceased's father's estate comprised interests in land, specifically investments upon mortgage of real estate. They further held that the promise to leave the insurance moneys was not severable from the rest of the contract and therefore failed with it. Starke, Evatt, and McTiernan JJ. also found the agreement unenforceable, but on the separate ground that it was too indefinite and void for uncertainty.
The High Court dismissed the appeal, affirming the decision of the Supreme Court of New South Wales. The court held that the alleged contract, insofar as it related to the deceased's interest in his father's estate, was a contract for the disposition of an interest in land and was therefore unenforceable due to the absence of a note or memorandum in writing as required by section 54A of the Conveyancing Act. The promise concerning the insurance moneys was not considered severable.