DEEP V. NASSER AND OTHERS

ORIGINAL

IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Judgment delivered at... SYAN@Y. ae W. M. Housrox, Govt. Print, Melb 1 on... Wednesday, 7th December..1955..

©.1978/88

DEEP

Ve NASSER & ORS.

ORDER

Appeal allowed. Cross-appeal dismissed. Vary the decretal order of 27th May 1955 by omitting the second and third declarations therein and substituting therefor the following declaration, namely a declaration that under the devise to the plaintiff of the land in the will referred to as "the said shop and premises" the plaintiff is entitled to the whole of the land comprised in the certificate of title 4 4631 folio 243 having a frontage of 66 feet to Parker Street, Cootamundra, excepting only the portion thereof which passed under the aforesaid devise to the defendant Helen Nasser and her children.

Rae Oh ee

Costs of all parties of the appeal bo be taxed as between

solicitor and client and paid out of the estate.

DEEP

Ve

NASSER & ORS.

TUDGMENT DIXON C.J. WEBB J.

KITIO Je

DEEP Ve

NASSER_& ORS.

This appeal concerns the identification of the subject matter of two trusts of realty declared by the will of Edith Scandra Deep who died on 2nd March 1953. The will in question was made on 4th June 1936. The testatrix was a widow who carried on a drapery business at Parker Street, Cootamundra, under the style, presumably adopted by her late husband, of Mick Deep. At the time of her death she had taken into partnership the appellant Norman Deep who in her will is described as her cousin. The relationship seems to' have been through her late husband. At all material times she owned in fee simple a rectangular piece of land facing Parker Street having a frontage of 66 feet and a depth to a lane at the rear of 165 feet. The land was comprised in one certificate of title. Parker Street runs from south-west to north-east. On the north-easterly portion of this land was 'the shop in which she carried on her business. It occupied a frontage of 38 feet 8 inches and extended in depth for 50 feet 2 inches. It was No. 159 in Parker Street. Adjoining this shop upon the south was an older galvanised iron shop taking up the remaining 27 feet 4 inches of the frontage to Parker Street, where it was No. 161. At her death this shop was occupied by a watchmaker and at the time of the making of her will by a grocer named Fred Legge. These respective tradesmen occupied No. 161 as her tenants. This shop formed part of a building which extended back almost to the same line as the back of No. 159 but at that point there was a back veranda to No. 161 and the veranda had been closed in so as to form a bedroom. The land could be entered from the lane at a back gate and a path seems to have extended at all times from the