Pead v Pead and Kitching

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.