By his will the testator, who died in 1894, devised and bequeathed his real and personal estate, which was situated in Victoria, to his wife for her sole and separate use during her life and directed that at her death it should be " "equally divided' " between his youngest son and his six youngest daughters, each to have an equal share. The testator then appointed executors. The executorial duties were completed and the personal representative of the testator desired to sell the land.

Held that, by reason of the terms of the will, he was empowered to sell the land for the purpose of distribution.

Decision of the Supreme Court of Victoria (Gavan Duffy J.) reversed.

APPEAL from the Supreme Court of Victoria.

By his will Donald MacDonald devised and bequeathed all his rea and personal estate to his wife, Isabella MacDonald, for her sole and separate use during her life time and " at her death to be equally divided between " his youngest son and his six youngest daughters. He appointed William Edward Veale and his wife as executor and

54 CLR 520

executrix of his will, and probate was granted to them. The executor and executrix died without fully administering the estate, and letters of administration with the will annexed of the unadministered estate MACDONALD. of the testator were granted to his daughter, Rachel MacDonald.

All the testator's children who were beneficiaries under his will, except Rachel MacDonald and Catherine MacDonald, were dead. The testator's debts, funeral and testamentary expenses were paid. The unadministered estate consisted of real estate, which the administratrix with the will annexed desired to sell, but Catherine MacDonald, the other surviving beneficiary, was opposed to a sale. The grounds of opposition by Catherine MacDonald were that the sale was not necessary or required for the purposes of administration of the estate of the testator; that the whole of the administration of the estate of the testator was completed and that the real property was held upon trust for the persons entitled to it under the devise in the will; that Catherine MacDonald and Rachel MacDonald had lived during a large part of their lives and still lived in the old home on the land; that they were both spinsters, Rachel being eighty-two years of age, and Catherine seventy-five, and the latter desired to spend the remainder of her days in the old home.

In these circumstances, Rachel MacDonald took out an originating summons, as administratrix with the will annexed of the testator's estate, to determine whether she was as such administratrix entitled to sell the real estate of the testator. The defendants to the summons were Catherine MacDonald and William John…

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 Pagels v MacDonald

Details

AGLC: Pagels v MacDonald [1936] HCA 15
Case: [1936] HCA 15
Decision Date: 29 April 1936

CaseChat Overview and Summary

This case concerned an appeal from the Supreme Court of Victoria regarding the power of an administratrix with the will annexed to sell real estate. The testator, Donald MacDonald, died in 1894, leaving his real and personal estate to his wife for life, with the remainder to be "equally divided" between his youngest son and six youngest daughters. The executorial duties had been completed, but the estate remained unadministered, consisting of real estate. The administratrix sought to sell this land, but one of the beneficiaries, Catherine MacDonald, opposed the sale, arguing that administration was complete and the property should be conveyed in specie. The other beneficiaries desired a sale.

The High Court was required to determine whether the administratrix, as the personal representative of the testator's unadministered estate, possessed the power to sell the real estate. This involved interpreting the terms of the will, specifically the direction for the estate to be "equally divided" amongst the beneficiaries after the life tenant's death, and considering the relevant provisions of the Administration and Probate Act 1928 (Vict.). The central legal issue was whether this direction implied a power of sale for the purpose of distribution, or if the beneficiaries were entitled to receive the property in specie.

The High Court, by majority, found that the direction to "equally divide" the testator's real and personal estate implied a power of sale for the personal representative. The Court reasoned that a literal division of the land in specie would not achieve the testator's intention of an equal division of the entire estate, which might comprise various assets. Therefore, the power to sell and distribute the proceeds was considered incidental to the executor's duty to carry out the testator's testamentary intentions. The Court distinguished this situation from a direct gift of property to beneficiaries, where no such power of sale would typically arise unless expressly granted or necessarily implied for administration.

The appeal was allowed, and the declaration of the Supreme Court was varied. The High Court declared that, by reason of the directions in the will, the powers of the administratrix included the power to sell the real estate for the purpose of distribution in accordance with the terms of the will. The costs of all parties on the appeal were ordered to be paid out of the estate, with the administratrix's costs to be taxed as between solicitor and client.

Orders