Scott v Scott [1963] HCA 65

High Court of Australia McTiernan, Taylor and Owen JJ. Scott v Scott [1963] HCA 65

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 20 McTiernan, Taylor and Owen JJ.

On 20th December 1917 Rosamond Maplesden Scott made her last will whereby she appointed her husband William Henry Scott and her brother-in-law, Alick Lewis Scott, to be executors and trustees. By the will she gave devised and bequeathed all her real and personal estate to her executors and trustees in trust to allow the use enjoyment and all income to arise therefrom to her husband during his lifetime and after his death in trust to convert such part thereof as did not consist of money and to divide the whole of her estate between her children share and share alike. It was expressly provided by the will that if any of the children of the testatrix should die before the period of distribution their issue should take the share the parent would have taken if she or he had lived and if more than one equally between them. The deceased died on 5th January 1940 leaving her surviving her husband and seven children. One of the children, Graham Alexander Maplesden Scott, predeceased his father and left him surviving two children who, together with the surviving children of the testatrix, were the plaintiffs in the action out of which this appeal arises.

Probate of the will of the testatrix was duly granted to the executors and trustees therein named but by deed dated 16th December 1959 and made between the two executors and the plaintiff William John Maplesden Scott, Alexander Lewis Scott retired from the office of trustee and the said plaintiff was appointed in his place.

Some unspecified time before 13th March 1959 William Henry Scott remarried and on the date mentioned he made a will whereby he gave devised and bequeathed all his real and personal estate to his wife Susan Eleanor Isabel Scott for her own use absolutely and appointed her sole executrix. William Henry Scott died on 21st September 1960 and probate of his will was duly granted to Susan Eleanor Isabel Scott who was the defendant in the suit and is the appellant in this appeal.