Matthews v Matthews - [1913] HCA 49

MATTHEWS AND OTHERS MATTHEWS

ON APPEAL FROM THE SUPREME COURT OF Gift. Imperfect gift-Completion of gift-Donee an executor of donor-Intention to

make immediate gift-Gift of land in Victoria-Administration and Probate Act 1890 (Vict.) (No. 1060), secs. 6, 8, 9, 12. MELBOURNE, Sept. 11, 12,

Held, per Barton A.C.J., Gavan Duffy and Rich JJ., that the doctrine 15, 16, 17;

enunciated in Strong v. Bird, L.R. 18 Eq., 315, that an imperfect gift made by a testator during his lifetime may be perfected by the vesting of the sub- ject matter of the gift in the donee as executor, is not applicable unless the testator at the time he made what is alleged to be an imperfect gift had the intention to make an immediate gift, and up to the time of his death intended that that gift should stand and have effect.

Per Isaacs and Powers JJ.-It is not necessary that the intention that the gift is to stand and have effect, should be continuous during the whole time between the imperfect gift and the final act perfecting it. It is necessary only that the final act shall be done with the continuing intention to perfect the gift originally intended and hitherto left imperfect.

Quare, whether the doctrine of Strong v. Bird applies to land in Victoria or, if so, to a case where the alleged donee is one of several executors in all of whom the land the subject matter of the gift has become vested.

In an action by some of the executors against another executor to recover certain land as being part of the estate of the testator the defendant alleged an imperfect gift of the land by the testator to him which had been perfected in accordance with the above doctrine.

17 CLR 9

Held, by Barton A.C.J., Gavan Duffy and Rich JJ. (Isaacs and Powers JJ. H. C. dissenting), that on the evidence the alleged donee had not shown that the testator, at the time he did the acts which were alleged to constitute an imper- fect gift, intended to make an immediate gift and that such intention was a continuing one up to his death.

Decision of the Supreme Court of Victoria (Hood J.), (1913) V.L.R., 80; 34 A.L.T., 151, reversed.

APPEAL from the Supreme Court of Victoria.

An action was brought in the Supreme Court by Mary Ann Matthews, Frances Chambers, Mary Ann Matthews the younger and Sarah Ann Matthews, executrices of George Cole Matthews, against Frake Richard Matthews, claiming possession of certain land of which the plaintiffs alleged that they were registered proprietors.

The testator had been registered proprietor of the land, and the plaintiffs alleged that about June 1911 he had verbally let the land to the defendant, and that they had terminated the tenancy thereby created by a notice to quit. The defendant had been appointed an executor with the plaintiffs of the testator's will, and, when probate was granted to the plaintiffs, leave was reserved to…

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 Matthews v Matthews

Details

AGLC: Strong v Bird [1913] HCA 49
Case: [1913] HCA 49
Decision Date: 13 October 1913

CaseChat Overview and Summary

The appellants, executrices of the will of George Cole Matthews, appealed to the High Court of Australia against a decision of the Supreme Court of Victoria. The dispute concerned certain land which the defendant, Frake Richard Matthews, also an executor of the testator's will, claimed as an imperfect gift perfected by his appointment as executor. The plaintiffs alleged the defendant was merely a tenant at will whose tenancy had been terminated.

The central legal issue was whether the doctrine established in *Strong v. Bird* applied to the facts of this case, specifically concerning a gift of land in Victoria. This doctrine posits that an imperfect gift made by a testator during their lifetime can be perfected by the vesting of the subject matter of the gift in the donee as executor. The court was required to determine if the testator had the requisite intention to make an immediate gift and if that intention remained continuous until his death, and whether the doctrine extended to land in Victoria and to a situation where the donee was one of several executors.

A majority of the High Court, comprising Barton A.C.J., Gavan Duffy, and Rich JJ., held that the doctrine of *Strong v. Bird* requires not only an intention to make an immediate gift but also a continuous intention that the gift should stand and have effect up to the time of the testator's death. They found that, on the evidence, the defendant had not discharged the onus of proving that the testator possessed such a continuous intention. The majority noted that the testator's contemplation of selling the entire property, including the land in question, and his discussions regarding the defendant's responsibility for the mortgage and transfer fees, indicated a lack of a settled and continuous intention to make an immediate and unconditional gift. Isaacs and Powers JJ. dissented, holding that the intention to perfect the gift need not be continuous throughout the entire period between the imperfect gift and the perfecting act, but only that the final act must be done with the continuing intention to perfect the originally intended gift.

The High Court, by a majority, reversed the decision of the Supreme Court of Victoria. The appeal was allowed, and the plaintiffs were granted judgment for possession of the land.

Orders