Gellibrand v Murdoch [1937] HCA 10

236 HIGH COURT [1937. (HIGH COURT OF AUSTRALIA} 3 GELLIBRAND 5 ¥ Bs . APPELLANT ; Drrenpant, AND ; MURDOCH AND OTHERS . RESPONDENTS, PLamntIFFs AND DEFENDANT, ; ON APPEAL FROM THE SUPREME COURT OF ; TASMANIA, H.C. or A, Executors—Will—Construction—Administration of estate—Payment of debts—Land— 1937. Devise of undivided moiety—Acquisition of further two-tenths—Mortgage of seven- a tenths— And all other the... interestof . the mortgagor" — MELBOURNE Acquisition of remaining interests in land—Direction to pay debts out of residuary ;

real and personal estate— Contrary . . . intention"'—Not an exoneration of

Tathan C3. the mortgaged land—Locke King's Act—Bank overdraft—Shares—Deposit— Eich, Dixon and General banker's lien—Realty equitably mortgaged to secure overdraft—Morlgaged z land primarily liable—Administration and Probate Act 1935 (Tas.) (26 Geo. V.

No. 38), sec. 35.*

Mar. 11, 12.

At the date of his will in 1921 the testator was entitled to one undivided half share of certain land in fee simple. The testator divided his interest into fifth shares, that is, tenths of the entirety, and made specific devises of his

*The Administration and Probate Act 1935 (Tas.) sec. 35, provides :—* (1)

bear a proportionate part of the charge on the whole thereof. (2) Such con-

Where a person dies possessed of, or entitled to, or under a general power of appointment by his will disposes of, an interest in property which at the time of his death is charged with the payment of money, whether by way of mortgage, equitable charge, or otherwise, includ- ing a lien for unpaid purchase money, and the deceased has not, by will, deed, or other document, signified a contrary or other intention, the interest so charged shall, as between the different persons claiming through the deceased, be primarily liable for the payment of the charge; and every part of the said interest, according to its value, shall