Bird v Perpetual Executors and Trustees Association of Australia Limited [1946] HCA 52

140 HIGH COURT [1946.

{HIGH COURT OF AUSTRALIA.]

BIRD . 3 . é is ' : i APPELLANT ;

PLAINTIFF, 4 AND

PERPETUAL EXECUTORS AND TRUSTEES ASSOCIATION OF AUSTRALIA LIMITED DEFENDANT,

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

H. C. or A, Deed—Covenant—Acknowledgment of indebtedness—No pre-existing debt — Direction

1946. to executor to pay on death a sum to be calculated from an antecedent date to date gd of death—Testamentary document. MELBOURNE,

P. and his wife had lived for some years without charge with the wife's sister, Mrs, B, As the result of a conversation with another relative, G., in which P. expressed a desire to recompense Mrs. B., G. mentioned the matter tatham, to his solicitor, who drew up a document in the following terms :—"I MeTiernanand hereby acknowledge that I am indebted to" Mrs. B. 'for the board and

See residence of myself and my wife at the rate of four pounds per week from" 12th March 1929 "and I direct my trustees and executors or administrators on my death to pay to" Mrs. B. "a sum calculated at the said rate of four pounds . . . per week from" 12th March 1929 "to the date of my death with interest added at the rate of five per centum per annum calculated yearly on the amount owing each successive year from March" 1929. P. executed the document under seal in December 1938, and it was then taken by G. to his solicitor, who put it with Mrs. B.'s papers. On P.'s death Mrs. B. brought an action against his administrator on the basis that the document contained a

Oct. 17; Dec. 20.

covenant by P. to pay the sums stipulated in it.

Held, by Starke, Dixon and McTiernan JJ. (Latham C.J. and Williams J. dissenting), that the deed contained no express covenant by P. to pay the acknowledged debt nor should any such covenant be implied, and that being consequently a mere testamentary direction not executed in the manner provided by the Wills Act 1928 (Vict.) the deed was inoperative.