Neil v McDonnell [1949] HCA 13

High Court of Australia Latham C.J. Dixon and Williams JJ. Neil v McDonnell [1949] HCA 13

ORDER Appeal allowed. Decretal order varied by striking out the declaration with respect to the division of the corpus of the residuary estate and inserting in lieu thereof a declaration that upon the true construction of the will of the testator and in the events which have happened the corpus of the residuary estate has been divisible since the death of the testator's daughter Grace McDonnell between the appellant as to one moiety thereof and the respondents Stanley Augustine McDonnell, Ines Marie Augusta Campbell and John Arthur Xavier McDonnell as to the other moiety thereof equally between them. Costs of all parties of the appeal, those of the respondents Sheila Grace McDonnell and Marie Frances McDonnell as of submitting defendants, to be paid out of the estate as between solicitor and client.

Cur. adv. vult.

The following written judgments were delivered:—

May 5 Latham C.J.

The will of William McDonald, after providing for certain bequests and specific devises of lands, gave to his trustees the rest and residue of his real and personal estate "upon trust (subject to the annuities hereafter mentioned) for my said two daughters Grace McDonnell and Emily Sarah McDonald for life in equal shares with remainder in fee to their issue in equal shares their grandchildren if any taking per stirpes."

The testator died in 1904, being survived by his daughter Grace McDonnell and his daughter Emily, who became Mrs. Darvall. Emily died in 1937, leaving one child, Ena Gertrude Neil, the appellant. Grace died in 1948. Her son Percy had died without issue in 1892. Another son Wilfred Francis, who died in 1947, left a son John Arthur Xavier, an infant, and another son Stanley is still alive and has six children. A daughter Ines, who became Mrs. Campbell, is alive, and has an infant daughter Ann, who was born in the life of her grandmother Grace.