Drake-Brockman v Gregory [1920] HCA 57

R.) OF AUSTRALIA. 571

(HIGH COURT OF AUSTRALIA.)

KE-BROCKMAN AND ANOTHER. . APPELLANTS ; .

AND

ORY . : A : : : ' . Responpent.

ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA.

Construction—Share in partnership—Gift by will—Condition—Election to H.C. ov A. _ purchase under partnership deed—Intestacy. 1920.

By his will a testator, who was a partner in a trading firm with his pyoiy brother, bequeathed to the latter his share in the partnership business on coy g/g "s

condition that the brother should pay yearly a portion of testator's share in the =~ —___ profits of the business to his mother, his wife, or, on the latter's death or re- Knox C4.. marriage, to his daughter ; the remaining portion was to be retained by the Gavan bulty brother, who was appointed executor of the will. 'The brother, in pursuance *"* "ch +7- of a right contained in the partnership deed, elected to purchase the testator's

share in the assets of the partnership.

Held, by Knox C.J, and Gavan Duffy J., that there was no intestacy by reason of the election of the executor to purchase : that the gift of the share operated as a gift to the executor of the amount payable by him as the purchase money of the share and operated to pass to him the purchase money with no further burdens than he was content to assume.

By Isaacs and Rich JJ. : (1) whether the gift was taken in its primary or 'its secondary form, the condition on which it was offered must be observed ; (2) but as the executor had elected to purchase and had purchased the share under the partnership deed, independently of the will, he necessarily rejected _ the gift; (3) the gift thereby entirely failing, there was an intestacy as to 'the share.

- Decision of the Supreme Court of Western Australia: In re Gregory, 22

H.C. or A.

1920. YL

Drake- BrocKMAN v. Grecory.