Pagels v MacDonald [1936] HCA 15

OF AUSTRALIA. 519

[HIGH COURT OF AUSTRALIA.]

- # . APPELLANT ;

AND

scDONALD AND ANOTHER . 3 . RESPONDENTS.

PiatntiFF AND DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

'onstruction —Real estate—Power of sale—Gift for life and then to be "divided" 44.0, or A. 'among children—Executorial duties completed—Whether executor has power of 1936, sale—Administration and Probate Act 1928 (Vict.) (No. 3632), secs. 8, 9, 39.

By his will the testator, who died in 1894, devised and bequeathed his real MELBOURNE, "and personal estate, which was situated in Victoria, to his wife for her sole a7: 11, 12. and separate use during her life and directed that at her death it should be Sypzx, " equally divided " between his youngest son and his six youngest daughters, April 29. each to have an equal share. 'The testator then appointed executors. The jo 5, executorial duties were completed and the personal representative of the Starke, Dixon,

i Evatt and testator desired to sell the land. MeTiernan JJ.

Held that, by reason of the terms of the will, he was empowered to sell the land for the purpose of distribution.

Decision of the Supreme Court of Victoria (@avan Duffy J.) reversed.

\P pEAL from the Supreme Court of Victoria.

By his will Donald MacDonald devised and bequeathed all his

tea and personal estate to his wife, Isabella MacDonald, for her sole ind separate use during her life time and " at her death to be equally

led between " his youngest son and his six youngest daughters.

He appointed William Edward Veale and his wife as executor and

H.C. or A.

1936. Se Paces " MacDowatp.

HIGH ,COURT

executrix of his will, and probate was granted to them. The executor and executrix died without fully administering the estate, and letters of administration with the will annexed of the unadministered estate — of the testator were granted to his daughter, Rachel MacDonald, _ All the testator's children who were beneficiaries under his will, except Rachel MacDonald and Catherine MacDonald, were dead. The testator's debts, funeral and testamentary expenses were paid. The unadministered estate consisted of real estate, which the administratrix with the will annexed desired to sell, but Catherine MacDonald, the other surviving beneficiary, was opposed to a sale. The grounds of opposition by Catherine MacDonald were that the