Smith v Layh [1953] HCA 16

High Court of Australia Dixon C.J. Fullagar, Kitto and Taylor JJ. Smith v Layh [1953] HCA 16

ORDER Appeal allowed. Order of the Full Court of the Supreme Court of Tasmania discharged. In lieu thereof order that the appeal from the order of Green J. dated 2nd April 1951 be allowed and that his order be discharged in so far as it answers the first and second questions in the originating summons and in lieu thereof that it be ordered that question 1 in the originating summons be answered: Yes; that question 2 be answered that such question does not arise, and that it be ordered that the costs of the appeal to the Supreme Court be taxed as between solicitor and client and when so taxed be paid out of the estate of the testator. Order that the cross-appeal be struck out and that the costs of the appeal and of the cross-appeal be paid out of the estate, the costs of all parties to be taxed as between solicitor and client.

Cur. adv. vult.

The Court delivered the following written judgment:—

April 23 Dixon C.J., Fullagar, Kitto and Taylor JJ.

This is an appeal from an order of the Full Court of the Supreme Court of Tasmania dismissing an appeal from an order of Green J. There is a cross-appeal as to costs. The order of Green J. was made upon an application by way of originating summons for an interpretation of the will and codicil of Francis Allen Ansell, who died on 8th June 1946. His will was dated 23rd August 1945. The date of his codicil was 20th February 1946. The testator's wife, Ada Ansell, predeceased him; she died on 11th August 1945, leaving a will dated 29th November 1944 which was admitted to probate on 11th March 1946.

It appears that Ada Ansell was entitled to the freehold property of the Duke of Wellington Hotel, which is situated in Wellington Street, Launceston. By her will she gave, devised and bequeathed this freehold unto her niece Marjorie Sigrid Ekblade and her nephew William John Ekblade, children of her sister Vera May Ekblade. At the time when she made her will it was supposed that William John Ekblade was a prisoner of war in the hands of the Japanese, he having been serving with the 2/22 Australian Infantry Battalion. But on 4th February 1946 the Department of the Army issued by a duly authorized officer a certificate of death on war service in respect of William John Ekblade. The certificate stated that whilst engaged on war service within the meaning of the National Security (War Deaths) Regulations, he had become missing on 1st July 1942 and was for official purposes presumed to be dead. It is not disputed that William John Ekblade predeceased the testatrix. The result was that the gift to him of the undivided half share of the Duke of Wellington Hotel contained in the will of the testatrix lapsed.