Osborne v Smith [1960] HCA 89

High Court of Australia Kitto, Menzies and Windeyer JJ. Osborne v Smith [1960] HCA 89

ORDER Appeal dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 8 Kitto J.

This is an appeal against a decree made by Myers J. in the probate jurisdiction of the Supreme Court of New South Wales, dismissing an application by the present appellant for letters of administration with the will annexed of the estate of one Ruth Smith deceased. The deceased left an estate of small value, the chief asset being the stock-in-trade of a lingerie shop which she carried on under the trade name Petah King, in an arcade in Sydney.

The case has a curious history. The document put forward by the appellant as the will of the deceased was propounded in a suit for probate brought by one of the executors, a man named Blanch, against the respondent who is the widower of the deceased, and as such is interested as on her intestacy. That suit was heard by Myers J., who dismissed it because he was not satisfied that the deceased knew and approved of the whole of its contents. It had been drawn up on instructions given by the deceased to Blanch (who was an accountant), but the instructions had been departed from in certain important respects, and it was in those respects that his Honour was not satisfied on the issue of knowledge and approval.

The document is in form regular enough. For the most part it is typewritten, and as typed it begins: " This is the Last Will and Testament of me Ruth King (professionally known as Petah King)"; but "King" is obliterated in ink and "Smith" written in capitals in ink above. There is a revocation of former wills, and then follow seven numbered clauses. Clause 1 consists of an appointment of Blanch and a man named Hill to be the executors and trustees of the will. Clause 2 is a gift of all the deceased's real and personal estate to her trustees upon trust to stand possessed of the same for the appellant absolutely. Clause 3 directs however that so long as the deceased's business shall be carried on by her trustees the sum of £100 per annum shall be paid to the "Home of the Peace Petersham", and that when her business shall be sold the sum of £200 shall be paid from the proceeds thereof to the said "Home of the Peace". (The reference obviously is to a well-known hospital called the Home of Peace Hospital.) Clause 4 bequeaths the deceased's eyes to the eye bank of the Sydney Eye Hospital, and cl. 5 directs that her body be cremated. Clause 6 directs that Blanch be the accountant to the estate, and that as such, notwithstanding his acceptance of the trusteeship, he be allowed all professional and other charges for his time and trouble which if employed as an accountant to the trustees, not being himself a trustee, he would be entitled to make. Clause 7 directs that a solicitor named Duke, by whom Blanch is said to have had the will prepared, be the solicitor to the estate. Then there is a testimonium clause in the usual form.