Parremore v Gangell [1962] HCA 17

High Court of Australia Dixon C.J. McTiernan and Owen JJ. Parremore v Gangell [1962] HCA 17

ORDER Allow appeal. Discharge order of the Supreme Court in so far as it answers question 1 (a) in the originating summons and declares that it is unnecessary to answer question 1 (d) thereof. In lieu thereof declare that the gift under the trusts of the Will of William Gangell deceased which would have vested in the child of John James Gangell had he attained the age of twenty-one years and survived his father falls into residue and is distributable as part of the estate of Alice Gangell deceased, the widow of the testator. Order that the costs of all parties to this appeal be taxed as between solicitor and client and when so taxed be paid or retained by the respondent National Executors & Trustees Company of Tasmania Limited as trustee of the estate of the testator out of the fund of the said estate.

Cur. adv. vult.

The following written judgments were delivered:—

April 5 Dixon C.J.

This appeal depends upon the meaning and operation of a will made on 23rd May 1912. It is the last will of William Gangell of Tea Tree, Tasmania, farmer, who died on 9th June 1912. At the time of his death he was seised of two pieces of land upon which he carried on his farming. One consisted of a farm of 1100 acres at Tea Tree; he called it "Cremorne". The other consisted of 100 acres some distance away at Richmond. He left him surviving a widow, three sons and five daughters. Of the three sons one, George Edward Gangell, had married and had children but not long after his father's death, namely on 21st November 1913, he died. He left a widow and four children; the widow and one child have since died. Another son, John James Gangell, married after his father's death. There was only one child of the marriage and he died in childhood on 6th March 1918. John James Gangell's wife died on 3rd January 1942. He did not remarry, and he died on 14th September 1958. The third son of the testator was named William James Gangell. He survived his father and died on 3rd July 1952 but he does not come into the consideration of this case, for the testator, as his will declared, made no provision for William James "he having been provided for by me in my lifetime".