Voges v Monaghan [1954] HCA 63

H. C. or A. 1955. ae ALATI

v. KRUGER.

HIGH COURT [1955.

by agreement or inquiry as aforesaid and the sum of £16 10s. Od. (being damages in respect of the con- veyancing costs and stamp duty incurred by the plaintiff in relation to the said contract), and deducting the total thereof from a sum equal to £700 (the amount of the purchase money paid by the plaintiff under the said contract) plus interest on £700 at the rate of five per cent per annum from the date upon which the plaintiff paid the said purchase money until the date determined by the Supreme Court as aforesard.

(2) Subject to the foregoing variations, judgment of the Supreme Court affirmed, and appeal dismissed with costs.

(3) Application by the respondent for special leave to appeal refused.

Solicitor for the appellant, L. B. Moynihan. Solicitors for the respondent, D. J. O'Mara & Robinson.

J. M. M.

94 C.L.R.] OF AUSTRALIA. 231

{HIGH COURT OF AUSTRALIA.]

VOGES z : ; ' ' ; i i APPELLANT ; DEFENDANT, AND MONAGHAN AND ANOTHER : : . RESPONDENTS. PLAINTIFFS,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Will—Absolute bequest of whole estate to legatee—Secret trust imposed on legatee in H.C. or A. favour of other persons. 1954. vo

MELBOURNE,

May 27, 28;

An elderly testator who died in June 1946 left an estate of approximately £47,000. He was survived by a widow who was eleven years older than he, but by no other dependants. The only other persons who had any sort of moral claim on the testator were M., who had been a servant in his household Sypney, on low wages from 1911 until the testator's death, and A. his niece by marriage, Nov. 18. who was only in a modest financial position and of whom the testator had Dixon Oa always been fond. The testator had given both M. and A. to understand that Moraes they would be provided for. The testator left his whole estate to V. who was a Fullagar and married woman living with her husband with a grown-up family. She had seat met the testator about 1926 and by 1943, when he retired as a pharmaceutical chemist, had become very useful to him in the management of his affairs generally. They were in constant contact until the testator's death and she attended to various business and household matters for him. V. knew both M. and A. and was aware of their circumstances. V. admitted that the testator told her in August 1945 that he had made his will and asked her to look after his wife, to which request V. assented. According to V., in October 1945 she had a further conversation with the testator in the course of which he suggested subject to V.'s discretion that she might give three pounds per week each to M. and A. after his death. M. gave evidence that very shortly after the testator's death V. told her that she had to go and get an envelope with the testator's wishes in it and that when she returned she produced a long narrow piece of paper from which she read, observing " This is what " the testator "" wished me to do for you'. According to M., V. read that M. was to get three pounds per week for life to start from the date of the testator's death and to continue until the date of M.'s death, and then said that M. could not see the document then but she would later. V. said in evidence that the