Hurley v Hurley - [1947] HCA 22

WillConstructionDerise and bequest of land and live stock Subject to right

testator's niece to live thereon, whilst unmarried and use certain chattels and stock-Niece residing with testator during his lifetime-Continuity of residence- Abandonment-Wheth trust tenancy for life or personal right.

A testator by his will devised and bequeathed his land and stock thereon to his nephews subject to the right of his niece to live there while unmarried." He further directed that she was " to have the full use of the horse sulky and the harness and saddle horse she chooses to ride and to be allowed to milk whatever cow she liked and to be provided with beef while my two said nephews are killing and they are to cut wood for her." The niece, who resided with the testator during his lifetime, continued for fifteen months after his death to live in a dwelling house on the land but in 1930 bought a home in Killarney where she has resided ever since.

In an action by the niece for a declaration that she was entitled to reside on the lands,

Held, (1) that the property had been devised directly to the nephews and that the will conferred on the niece a mere personal right to live on the lands which amounted neither to a trust nor a tenancy for life in her favour;

(2) that by living elsewhere she had abandoned this right.

TRIAL OF ACTION.

Katherine May Hurley of Killarney, Queensland brought an action in the High Court in its original jurisdiction against Jeremiah James Hurley, as trustee under the will of Jeremiah Hurley deceased, of New Koorelah, New South Wales. The plaintiff, a niece of the deceased and sister of the defendant, claimed a declaration that under the will she was entitled to reside in a dwelling house on certain lands at New Koorelah forming part of the estate of the

75 CLR 290

290

HIGH COURT testator. For about fifteen years prior to his death the plaintiff

resided with the deceased in a dwelling erected on the lands. She continued to reside there fifteen months after his decease and then went to live with her mother and later acquired her own home at Killarney, where she now resided.

The action was heard by Rich J. in whose judgment the relevant facts and the provisions of the will are sufficiently set forth.

Allen, for the plaintiff. Draney, for the defendant.

RICH J. delivered the following judgment :- The controversy in this case arises out of a provision in the will of Jeremiah Hurley, in which attempts are made to secure certain benefits for his niece. She had resided with her uncle in one of the "dwelling-houses" erected on the land. His nephew (the defen- dant) resided in another "dwelling-house' on the land. The provision in question is as follows :--The testator gave, devised and bequeathed the whole of his land and stock "thereon at New Koorelah aforesaid" to his nephews, the defendant…

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 Hurley v Hurley

Details

AGLC: Hurley v Hurley [1947] HCA 22
Case: [1947] HCA 22
Decision Date: 20 June 1947

CaseChat Overview and Summary

In *Hurley v Hurley*, the plaintiff, Katherine May Hurley, a niece of the deceased Jeremiah Hurley, sought a declaration from the High Court that she was entitled to reside in a dwelling house on lands forming part of the deceased's estate. The deceased's will devised his land and stock to his nephews, including the defendant, Jeremiah James Hurley, subject to the plaintiff's right to live there while unmarried, and also granted her specific rights concerning a horse, sulky, cows, and beef. The plaintiff had resided with the deceased prior to his death and continued to reside on the land for fifteen months afterwards before purchasing her own home elsewhere.

The legal issues before the court were whether the provision in the will conferred upon the plaintiff a trust or a tenancy for life, and if not, whether she had abandoned the personal right to reside on the land. The plaintiff contended that the will created either a trust or a life tenancy in her favour.

Rich J. held that the will conferred only a personal right on the plaintiff to reside on the land, which was neither a trust nor a tenancy for life. His Honour reasoned that the land was directly devised to the nephews, and the right granted to the plaintiff was described as "the right to live there," without specific mention of a dwelling house. The personal nature of this right was emphasised by the accompanying provisions regarding the use of chattels and stock, which would be absurd to suggest could be assigned. The court found that the testator intended the plaintiff to personally enjoy these amenities, contingent on her continued residence and unmarried status. Crucially, the court determined that the plaintiff had abandoned this personal right by leaving the dwelling and establishing her own residence elsewhere, thereby terminating her entitlement.

Consequently, the High Court dismissed the plaintiff's action and ordered that she pay the defendant's costs.

Orders