Pohlner v Elder's Trustee & Executors Co Ltd [1964] HCA 8

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Windeyer JJ. Pohlner v Elder's Trustee & Executors Co Ltd [1964] HCA 8

ORDER Order of Supreme Court varied by striking out the order that costs should be paid out of the leasehold therein referred to and substituting therefor the order that costs of all parties should be paid out of the residuary estate. Save as aforesaid appeal dismissed. No order as to the costs of the appeal.

Cur. adv. vult.

The following written judgments were delivered:—

1964, Feb. 25 Dixon C.J.

This is an appeal as of right from an order of the Supreme Court of South Australia made on originating summons. The originating summons sought the determination of certain questions and matters arising out of the will of Hilda Clara May Jones deceased who died on 25th November 1960. The will was executed on 20th February 1956. At that time the testatrix was a lessee as tenant in common in equal shares with a sister named Stella Mary Marguerite Stockman. This was a Crown Perpetual Lease of land situated at Paratoo. The property was known as Oak Park. It was situated in the Counties of Herbert and Kimberley and comprised 18,400 acres. On the land the sisters carried on a grazing and livestock business in partnership. The partnership was dissolved on 16th December 1959. On the dissolution the land and certain pieces of working plant were sold by auction on 3rd December 1959. According to an affidavit supporting the summons "At the said auction which was held on the 3rd day of December 1959 the whole of the interest of the said Stella Mary Marguerite Stockman in the said land and in some of the items of working plant belonging to the partnership was purchased by the testatrix who also by arrangement with her said sister acquired by way of purchase from her said sister her said sister's one half interest in the livestock implements machinery farming and grazing stores stocks and provisions and in the balance of the items of working plant belonging to the partnership. In the events which have happened the testatrix at the date of her death was the sole registered lessee of the said land and the owner of the assets referred to above." By her will the testatrix gave the whole of her estate to her trustee (the plaintiff in the summons) "Upon trust as to all my share and interest in the Leasehold property situate at Paratoo in the said State known as Oak Park and being Block 16 Counties of Herbert and Kimberley containing Eighteen thousand four hundred acres or thereabouts which said property is owned by me in common with my sister Stella Mary Marguerite Stockman and all my share and interest in the livestock working implements and machinery and in the farming and grazing stores stocks and provisions (not being produce of any kind grown or held for the purpose of sale) which shall be on such property as aforesaid at my decease and which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease:—(a) As to one half thereof for my brother Charles Alick Herman Pohlner (b) As to the other one half thereof for such of them my sisters Agnes Nelly Elizabeth Pretoria Gruneklee and Clara Louisa Thelma O'Leary as shall survive me and if more than one in equal shares." There followed a direction to convert the remainder of her estate and to apply the proceeds to pay debts etc. and certain pecuniary legacies and to stand possessed of the balance for such of her two daughters Clair Julia Pfeiffer (the defendant to the summons and respondent in the appeal) and Joy Ashley Betty as should survive her, if more than one in equal shares. By a proviso there was a gift over in the case of the daughters or either of them predeceasing the testatrix, which apparently did not happen.