Pead v Pead and Kitching - [1912] HCA 77

ELLEN PEAD AND OTHERS

WILLIAM ALFRED PEAD AND THOMAS

GEORGE KITCHING

RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF Real property - Will - Estate to testator's widow until youngest child attains twenty-

one-Intestacy as to remainder-Law of primogeniture-Heir-at-Law-Date of PERTH,

A testator, who died before the law of primogeniture was abolished, left Nov. 6, 7.

all his real and personal estate to his widow "for her use absolutely until the youngest child should attain the age of twenty-one years," without any further gift, and there were children living at the testator's death.

Held, per Griffith C.J. and Barton J., that the words 'youngest child" meant " youngest surviving child," and that there was an intestacy when such child attained the age of twenty-one years.

Held, by all the Court, that the remainder after the determination of the wife's estate vested in the heir-at-law, and that the person entitled to take as such heir-at-law must be ascertained at the death of the testator, and not on the happening of the event causing the intestacy.

Decision of the Supreme Court of Western Australia: Pead v. Pead, 14 W.A.L.R., 149, affirmed.

APPEAL from the Supreme Court of Western Australia.

Alfred Pead by will dated 6th December 1888 left all his real and personal estate to his wife for her use absolutely until his youngest child should have attained the age of twenty-one years, and made no further gift. He died in November 1892, leaving him

15 CLR 511

surviving his wife, Ellen Pead, and several children, the youngest of whom duly attained the age of twenty-one years on 9th December 1911. At the time of the testator's death the law of primogeniture had not been abolished in Western Australia.

Under these circumstances an originating summons was taken out by William Alfred Pead, the eldest son of the testator, as plaintiff, for the determination by the Supreme Court of (inter alia) the question whether on the coming of age of the youngest child of the testator, all his real estate became vested in his heir- at-law or was divisible amongst his next of kin. The persons named as defendants in that summons were the testator's widow and his children other than the plaintiff. Subsequently, one Thomas George Kitching was added as a defendant on the ground that the testator's widow had conveyed any interest which she had to one Burges, and Burges had executed a conveyance in respect of the same to Kitching.

The Full Court, to which the summons was referred, decided that as to his real estate the testator died partially intestate as to the remainder expectant upon the coming of age of his youngest child, and that such remainder vested at testator's death in the plaintiff, William Alfred Pead, who was his heir-at-law, subject to the right of the widow to dower. And the Court declared accordingly: Pead v. Pead 1.

From this decision the defendants other than Kitching appealed to the High Court.

Walker, Attorney-General…

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 Pead v Pead and Kitching

Details

AGLC: Pead v Pead and Kitching [1912] HCA 77
Case: [1912] HCA 77
Decision Date: 7 November 1912

CaseChat Overview and Summary

This case concerned an appeal from the Supreme Court of Western Australia regarding the interpretation of a testator's will. The testator, who died before the abolition of primogeniture, left his real and personal estate to his widow "for her use absolutely until the youngest child should attain the age of twenty-one years," with no further disposition of the remainder. The testator was survived by his wife and several children. The youngest child eventually attained the age of twenty-one.

The legal issues before the High Court were whether the testator died partially intestate as to the remainder of his estate, and if so, when the heir-at-law should be ascertained. Specifically, the court had to determine if the law of primogeniture, which dictated that real estate passed to the heir-at-law, applied, and if the heir was to be identified at the testator's death or at the time the youngest child reached majority. The court also considered the nature of the widow's interest and whether it constituted a fee simple or a determinable life estate.

The High Court, affirming the decision of the Supreme Court of Western Australia, held that the testator died partially intestate as to the remainder of his real estate. The court reasoned that the gift to the widow was limited in duration and did not constitute a fee simple, thus creating a gap in the disposition of the estate after the youngest child attained twenty-one. Applying the common law principle that the heir-at-law is ascertained at the death of the testator, and noting that subsequent legislation in Western Australia regarding intestacy applied only to deaths occurring after its enactment, the court determined that the heir-at-law at the time of the testator's death was entitled to the remainder. The court also clarified that the phrase "youngest child" meant "youngest surviving child."

The appeal was dismissed, and the judgment of the Supreme Court was affirmed with a variation to the order. The declaration that the interest in the property after the youngest child became of age vested in the heir-at-law was modified to include the words "if any" after "right of the widow to dower," to avoid prejudicing the question of dower rights. The appellants were ordered to pay the costs of the respondent Kitching.

Orders