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Kenna v Conolly

Kenna v Conolly

Case [1938] HCA 46 16 September 1938

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Property Law

Statutory Interpretation

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60 CLR 583

KENNA AND ANOTHER

APPELLANTS; PLAINTIFFS,

CONOLLY AND OTHERS

RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Will-Construction-Residue-Gift overTransmissible interests-IssueVesting-

By his will a testator, who died in 1879, declared that in the case of the death and failure of issue of my said children remainder of my real and personal estate

shall be equally divided amongst the children of my brother " K. " and of my sister C. and the issue (if any) of such children of my said shall be dead provided nevertheless that the issue of any deceased child of my said

brother and sister shall have no more than the share to which the deceased child or respective deceased children would have been entitled to if living per stirpes and not per capita." The children of the testator who survived him died without leaving issue.

Held that the children of the testator's brother and sister, K. and C., who survived the testator took a share unless they died leaving issue before the testator's last surviving child, in which case the issue of such child or children took the parent's share.

Decision of the Supreme Court of New South Wales (Nicholas J.) affirmed.

APPEAL from the Supreme Court of New South Wales.

Richard Kenna, late of Bathurst in the State of New South Wales, died in 1879 leaving him surviving two sons, Richard and Patrick, and two daughters, Mary and Eleanor.

60 CLR 584

By his will and the first codicil thereto he devised his real estate to trustees upon trusts primarily in favour of his sons and their issue, with gifts over in favour of his daughters and their issue. By a second codicil he provided that in case of the death of all my children without leaving issue entitled under the trusts of my said will and codicils my property at the corner of William and Russell Streets in Bathurst shall be in trust for Patrick Kenna the eldest son of my brother Patrick Kenna of Orange if living or of his lawful issue if dead

and in case of the death and failure of issue of my said children as aforesaid all the residue and remainder of my real and personal estate whatsoever and wheresoever shall be equally divided amongst the children of my brother Michael Kenna of the County Clare in Ireland and of my sister Margaret Cox the wife of Michael Cox of the same place and the issue (if any) of such children of my said last-mentioned brother and sister who shall be dead provided nevertheless that the issue of any deceased child of my said last-mentioned brother and sister shall have no more than the share to which the deceased child or respective deceased children would have been entitled to if living per stirpes and not per capita."

The four children of the testator who survived him died without leaving issue; the last of them, Patrick, died in 1934. The eldest son of…

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 Kenna v Conolly

Details

AGLC: Kenna v Conolly [1938] HCA 46
Case: [1938] HCA 46
Decision Date: 16 September 1938

CaseChat Overview and Summary

The case of *Kenna v Conolly* concerned the construction of a testator's will and codicils, specifically a gift over of the residue of his estate. The testator died in 1879, leaving four children who all subsequently died without issue, the last of whom died in 1934. The dispute arose between the children of the testator's brother, Michael Kenna, and the issue of his sister, Margaret Cox, regarding the distribution of the residuary estate. The Supreme Court of New South Wales, in its equitable jurisdiction, made a decree concerning the interests taken, and the plaintiffs appealed to the High Court of Australia.

The primary legal issue before the High Court was to determine the true construction of the residuary gift in the testator's second codicil. Specifically, the court had to ascertain whether children of Michael Kenna and Margaret Cox who survived the testator but predeceased the testator's last surviving child without leaving issue were entitled to a share of the residue. This involved determining whether survival to the period of distribution (the death of the testator's last surviving child without issue) was a necessary condition for taking an interest, or if such interests were vested and transmissible upon death leaving issue.

The High Court, by majority, dismissed the appeal. The reasoning applied was that the gift over of the residue constituted an original gift to a class comprising the children of Michael Kenna and Margaret Cox, and the issue of any such children who died leaving issue. The court held that the children of Michael and Margaret who survived the testator took vested interests, which were liable to be divested only in the specific event of their dying before the period of distribution leaving issue. The proviso that the issue of a deceased child should take no more than the parent's share was interpreted as defining the quantum of the substitutional gift to the issue, not as importing a condition of survival to the period of distribution for the primary beneficiaries. Therefore, children who died without issue before the period of distribution were considered to have had their interests divested or defeated, and their issue did not take their share.

The High Court affirmed the decision of the Supreme Court of New South Wales. The court held that children of the testator's brother Michael and sister Margaret who survived the testator took vested interests in the residuary estate, which were liable to be divested only if they died before the death of the testator's last surviving child leaving issue. Consequently, the issue of any such child who died leaving issue were entitled to take the share their deceased parent would otherwise have taken.

Orders