John Dyneley Fell v Fell [1922] HCA 55

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Pinsky In "Mn for Lands ERS AA eerie 53 i ate (2004)

268 HIGH COURT

[HIGH COURT OF AUSTRALIA.)

JOHN DYNELEY FELL AND ANOTHER . APPELLANTS; DerENDANTS,

AND

DAVID FELL AND ANOTHER. . REsPoNDENTS. PLAINTIFFS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Will—Construction—Uncertainty—No subject of disposition mentioned—Appoint-

1922, ment of executors—Intention—Presumplion against intestacy—Gift of whole RE estate. Sypnex, Practice—Originating summons—No next-of-kin—Service on Attorney-General. Bec: 'The will of a testator was substantially as follows :—" This is the last will Knox C.J, and testament of me" W.J. "I give devise and bequeath unto " eleven named Finns ang persons " and hereby appoint " two named persons " executors of this my will."

Held, by Isaacs and Higgins JJ. (Knox C.J. dissenting), that the will was a valid gift of the whole of the testator's estate to the eleven named beneficiaries in equal shares.

In re Bassett's Estate; Perkins v. Fladgate, (1872) L.R. 14 Eq., 54; In re Byrne ; Byrne v. Byrne, (1898) 24 V.L.R., 832; 20 A.L.7., 172; McLanghlanv. McLaughlan, (1902) $.R. (Qd.), 11, and Batson v. Morgan, (1894) 13 N.Z.L.R.. 525, followed.

Hall v. Warren, (1861) 9 H.L.C., 420; Enohin v. Wylie, (1862) 10 H.L.C., 1, and Mohun v. Mohun, (1818) 1 Swans., 201, distinguished.

Per Higgins J. As one of the affidavits used on the originating summons _ made it probable that the testator had no relatives at his death, the summons — ought to have been served on the Attorney-General.

Decision of the Supreme Court of New South Wales (Street C.J. in Eq.)+ Fell v, Fell, (1922) 22 §.R. (N.S.W.), 383, reversed.

31 C.L.R.] OF AUSTRALIA.

Appnat from the Supreme Court of New South Wales.

The will of William Jamieson, who died on 4th August 1920, was, so far as is material, in the following terms :—' This is the last will and testament of me William Jamieson at present residing at 'Ormiston' Kirribilli North Sydney New South Wales I give devise and bequeath unto John H. F. Jeffrey Marguerite Jeffrey John D. Fell Hugh Mackinley Fell Robert A. Fell Masie Fell Helen Fell Jessie Donald Smith Struan Smith M. M. Lovegrove Joseph M. Berry and hereby appoint David Fell Equitable Build- ings George Street Sydney Donald Smith dentist 159 Macquarie Street Sydney executors of this my will In witness whereof" &c. Probate of the will was on 25th October 1920 granted to the executors thereby appointed.