Jaques v Seton [1960] HCA 14

High Court of Australia Dixon C.J. Kitto and Windeyer JJ. Jaques v Seton [1960] HCA 14

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1960, Mar. 1 Dixon C.J.

This appeal is from a decretal order of Myers J. by which a clause in a codicil to the will of Alfred Edmund Jaques deceased was interpreted. The clause in question disposed of a share in residue in favour of a son of the testator named Lionel Wathen Jaques, his wife and children. Lionel, who is now dead, married twice. The first marriage by which he had one child, was dissolved by the Divorce Court. By his second marriage he had one child. It was dissolved only by his death. Both his first and his second wife survived him, as did the two children. By a bequest the terms of which it will be necessary to set out the codicil bequeathed a share in residue to Lionel for life and after his death to his wife for life and after her death remainder to the child or children of Lionel. The decree under appeal declared in effect that the divorced wife took the life estate after Lionel's death and that after her death the two children took the corpus of the share in equal shares.

The appeal is by the widow and her child. Two alternative contentions are put forward in support of the appeal against the declaration contained in the decretal order. The first is that the widow and not the divorced wife takes the life estate which vested in possession upon Lionel's death. The second or alternative contention is that neither the widow nor the divorced wife takes it but it lapses, the remainder to the two children being thereby accelerated. This second or alternative contention is based on the view that the wife identified by the testator's codicil was the wife of Lionel at the time when he made the codicil, namely the first wife, but that in order to take under the limitation it was necessary that she should remain Lionel's wife and survive him as his widow.