Watkins v Combes [1921] HCA 24

OF AUSTRALIA. 317

(HIGH COURT OF AUSTRALIA.)

WATKINS AND ANOTHER ' APPELLANTS 5 Derexpants,

axp

COMBES AND ANOTHER Responpents. PLarntiers,

ON APPRAL FROM THE SUPREME COURT OF 'TASMANIA.

Pratice—Supreme Court of Tasmania—Will—Probate not granted—Suit against H.C. oF A. exeeutor—Transfer of land and appointment of executor obtained by fraui— 1921. Equitable juriediction. ~

A suit will not le in the Supreme Court of Tasmania in its equitable juris- Me=LuounNe, diction by a beneficiary under a will of which probate has not been granted May 30, 31. against the person named therein as executor, fora declaration that a transfer oy sf land by the testator to such person, or the appointment of such person as Hsia 'executor, has been procured by his fraud. 3

Decision of the Supreme Court of Tasmania (Crisp J.), reversed.

Arreat from the Supreme Court of Tasmania.

Laura Josephine Reynolds, who died on 12th November 1919, had made two wills. By the first, dated 21st November 1917, she appointed David Saunders and Percy Rutherford Henry her executors and trustees, and devised and bequeathed to them all her real and personal estate on trust to divide the proceeds of the realization and sale thereof into two equal parts, and to hold one of such parts upon trust for her nephew Algernon James Combes for life and after his death for his two children in equal shares ; and to Pay the other of such parts to Arundel Sims. By the second will, dated 14th November 1918, she appointed Daniel Watkins

3s

H.C. or A. her executor and trustee, and devised and bequeathed to |

1921. ~ Warkrs

Cones.

HIGH COURT

all her real and personal property upon trust to pay to Algemon James Combes two-thirds of the proceeds of realization and sale thereof and to pay the remaining one-third to Arundel Sins At the time the wills were made Mrs. Reynolds was the regi: tered proprietor of a certain piece of land, and on 14th July 1919 she transferred that land, subject to mortgages amounting to £370, to Daniel Watkins and his wife, Ellen Margaret Watkins 'the consideration for the transfer being an agreement by Watkin and his wife to maintain Mrs, Reynolds for the remainder of her ife. A certificate of title was subsequently issued upon such transfer. At the date of the death of Mrs. Reynolds the land al referred to was valued at about £1,850 and the rest of her property at about £30, After the death of Mrs. Reynolds Daniel Watkins applied to the Supreme Court of Tasmania for probate of the will of Lith November 1918, and a caveat was entered by David Saunders and Percy Rutherford Henry against such probate being grant A caveat was also entered against any dealings with the land by David Watkins and his wife,