Duncan v Cathels [1956] HCA 56

High Court of Australia Dixon C.J. McTiernan, Williams, Fullagar and Taylor JJ. Duncan v Cathels [1956] HCA 56

ORDER Appeal allowed. Cross-appeal dismissed. Delete declarations in decretal order. In lieu thereof insert a declaration that upon the true construction of the trusts declared in the indenture of settlement made by John Fenwick deceased on 22nd June 1900 and in the events which have happened the share or interest of Bisset Fenwick deceased is now vested in the executors of his will. Costs of all parties of the appeal and cross-appeal as between solicitor and client to be paid out of the said share or interest.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 5 Dixon C.J., McTiernan, Williams and Taylor JJ.

This is an appeal by one of the executors of Bisset Fenwick deceased from part of a decretal order of the Supreme Court of New South Wales in Equity made by Myers J. in an originating summons instituted to construe the trusts of an indenture of settlement executed by John Fenwick on 22nd June 1900. The part of the decretal order appealed from is a declaration that upon the true construction of that indenture and in the events that have happened the share or interest of Bisset Fenwick is not now vested in the executors of his will. The appellant claims that there should have been a declaration that the share of Bisset is now vested in the executors of his will or alternatively that subject to the defendant Charlotte Dunkley receiving the income of such share during her life the estate of Bisset is entitled to the corpus of the share. The court also declared that the estate of the settlor is now entitled to such share and from this declaration there is a cross-appeal by Charlotte Dunkley claiming that his Honour should have declared that she is solely entitled to the corpus of the share.