Leeder v Ellis [1951] HCA 44

High Court of Australia Dixon, McTiernan, Williams, Webb and Kitto JJ. Leeder v Ellis [1951] HCA 44

ORDER Appeal allowed with costs. Order of Full Supreme Court set aside. Order of Sugerman J. set aside except as to costs. Respondent to pay costs of appeal to Supreme Court. Order that provision be made for the appellant out of the estate of Herbert Ellis deceased by directing that in lieu of the beneficial dispositions of the will the executrix be directed to hold the whole of the real and personal estate on trust for the appellant absolutely. Otherwise usual order under s. 6 (3) of the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 3 Dixon, Williams and Kitto JJ.

This is an appeal from an order of the Full Supreme Court of New South Wales dismissing with costs an appeal from an order of Sugerman J. dismissing an application by the appellant under the provisions of the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938 N.S.W. for maintenance out of the estate of her deceased husband. He died on 28th July 1949, leaving a will by which he appointed the respondent his sole executrix and trustee. He bequeathed his furniture to the appellant except for three articles which he bequeathed to the respondent and devised and bequeathed his real estate and his residuary personal estate, subject to the payment of his just debts, funeral and testamentary expenses, to the respondent absolutely.

The appellant claims that the furniture bequeathed to her by the will, valued at about £45, belongs to her. If this furniture is left out of account the only asset in the estate of the deceased, is a cottage, No. 2 Woid's Avenue, Hurstville. The improved capital value given by the Valuer-General for probate purposes for this cottage as at the date of death was £1,000. The place was subject to a mortgage of £886 to the War Service Homes Commission. The net value of the estate was therefore the value of the equity of redemption and of the furniture bequeathed to the respondent or in other words, about £160. At the date of death the cottage was subject to land sales control, but this control was relinquished in September 1949.