Kenna v Conolly

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.