Bruyn v Perpetual Trustee Co Ltd [1974] HCA 55

High Court of Australia Menzies, Stephen and Jacobs JJ. Bruyn v Perpetual Trustee Co Ltd [1974] HCA 55

ORDER Appeal No. 1.16 of 1973 allowed. Decretal order of the Supreme Court of New South Wales varied by substituting for the first declaration therein the following declaration, namely, Declare that upon the true construction of the will and codicil of Eva Clara Mitchell and in the events which have happened the children of Ernest Bruyn who survived the said Eva Clara Mitchell are entitled to share in her residuary estate. Appeal No. 119 of 1973 dismissed. Costs of all parties of these appeals to be paid out of the estate, those of the first-named respondent as between solicitor and client.

Cur. adv. vult.

The following written judgment was delivered:—

Dec. 18 Stephen and Jacobs JJ.

Sir Douglas Menzies fully participated in the preparation of this judgment and agreed in its conclusions although his death has unfortunately prevented him from taking part in its delivery.

These are two appeals from certain declarations made in the Supreme Court of New South Wales by Street C.J. in Eq. in an originating summons for the construction of the will and codicil of Eva Clara Mitchell, deceased ("the testatrix").

By her will dated 2nd August 1933 the testatrix bequeathed the residue of her estate to her husband for life and directed that after his death the residue " be divided in equal shares among the survivors of the following named nieces and nephews: Three Children of Mrs. Perry, Percy and William Sommerville, Florence Rooke, Walter John Rooke, Joan Hirschberg, W. Bruyn, Maud Beatrice Bruyn, Eva Bruyn, and Dorothy Bruyn".

On 21st May 1948 the testatrix executed a codicil to her will that provided, inter alia, "I wish to include the children of George Rooke and Ernest Bruyn in the disposition of my residue referred to in the will" At the date of the codicil George Rooke and Ernest Bruyn, both nephews of the testatrix, were living. They each had children living at that date. The testatrix died on 27th September 1969. Ernest Bruyn had predeceased her in 1968.