Sexton v Horton - [1926] HCA 25

HORTON AND OTHERS

RESPONDENTS. APPLICANTS,

ON APPEAL FROM THE SUPREME COURT OF Real Property--Grant of equitable estate-No words of limitation-Estate in fee or for

life-Deed of settlement-Interpretation-Intention of grantor. SYDNEY,

By a deed of settlement made in New South Wales in 1865 the settlor granted certain land unto A and his heirs to have and to hold unto and to the use of Aug. 11, 12,

A and his heirs during the life of the settlor's wife in trust to allow her and her assigns to hold the same for her separate use without impeachment of waste, and from and immediately after her decease to the use of the eldest son of the settlor and his wife living at the time of her death, and in the event of there being no such son then to the use of the wife, her heirs and assigns for ever.

Held, that according to technical rules of construction the settlement conferred upon the eldest son an estate for life, and not an estate in fee simple, in equity, and that the Court was not entitled to consider the intention of the settlor as gathered from other parts of the instrument.

In re Bostock's Settlement Norrish v. Bostock, (1921) 2 Ch. 469, followed. Hunt v. Korn, (1917) 24 C.L.R. 1, overruled. Decision of the Supreme Court of New South Wales (Long Innes J.) Exparte J. Horton, (1926) 43 N.S.W.W.N. 160, reversed.

APPEAL from the Supreme Court of New South Wales.

By a post-nuptial settlement made in New South Wales on 28th November 1865 between William Arthur Evans, Mary Evans (his

38 CLR 241

wife) and George Richards, William Arthur Evans granted unto H. George Richards and his heirs certain land in the City of Goulburn. to have and to hold unto and to the use of George Richards and his beirs during the life of Mary Evans without impeachment of waste, "and from and immediately after her decease to the use of the eldest son of the said William Arthur Evans and Mary Evans living at the time of her death and in the event of there being no such son then to the use of the said Mary Evans her heirs and assigns for ever." William Arthur Evans died on 2nd January 1890 having made a will dated 1st February 1886, and his wife, Mary Evans, died on 18th February 1873. Their eldest son living at the time of her death was William Arthur Evans jun., who on 3rd July 1896 granted the land by way of mortgage to Diana Elizabeth Charteris. This mortgage was assigned to Augustine Matthew Betts, who died on 15th September 1924 and whose executors were Ernest Augustine Betts and Selwyn Frederick Betts. By an indenture of marriage settlement William Arthur Evans jun. on 7th February 1898 granted the land in question to Frank Wall and his heirs to have and to hold unto Frank Wall and his heirs upon certain trusts including trusts in favour…

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 Sexton v Horton

Details

AGLC: Sexton v Horton [1926] HCA 25
Case: [1926] HCA 25
Decision Date: 27 August 1926

CaseChat Overview and Summary

The case of Sexton v Horton concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose from the interpretation of a deed of settlement executed in 1865, which granted land to a trustee. The primary issue was the nature of the equitable estate conferred upon the eldest son of the settlor and his wife, specifically whether it was an estate in fee simple or merely a life estate.

The High Court was required to determine whether the limitation in the deed, which granted land to the use of the eldest son living at the time of his mother's death, conveyed an equitable estate in fee simple or an equitable life estate. This determination hinged on the application of established rules of construction for real property limitations, particularly in the context of equitable interests created by a deed of settlement. The Court had to consider whether the intention of the settlor, as potentially gleaned from the entire instrument, could override the technical meaning of the words used in the limitation.

The Court, in allowing the appeal, held that according to the technical rules of construction applicable to executed trusts, the settlement conferred only an equitable estate for life upon the eldest son. The majority reasoned that where a deed uses technical language for limitations, such language must be given its technical legal meaning, and the court is not entitled to look at other parts of the instrument to infer a contrary intention. This approach aligned with the English Court of Appeal's decision in *In re Bostock's Settlement* and led the High Court to overrule its previous decision in *Hunt v. Korn*. The Court emphasised the importance of uniformity in property law and found that the decision in *Hunt v. Korn* was based on an erroneous view of the law.

Consequently, the High Court reversed the decision of the Supreme Court and remitted the case back for further hearing. The effect of this decision was that the eldest son, William Arthur Evans jun., was deemed to have received only a life estate in the land, not an estate in fee simple, under the 1865 settlement.

Orders