Marks v Pope [2001] NSWSC 105

New South Wales Supreme Court

CITATION : Marks v Pope [2001] NSWSC 105 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3822/2000 HEARING DATE(S) : 26/02/2001 JUDGMENT DATE : 5 March 2001

Agnes Louise Marks, Gary John Marks and Wayne Laurence Marks (P) PARTIES : Trevor Edward Pope, Joy Narelle Bush, Kevin John Creagan and Lurline Anne Smith (D1) Dianne Janet Johnson and Gail Christine Taylor (D2) JUDGMENT OF : Young J

COUNSEL : C Harris (P) J B Whittle SC (D1) SOLICITORS : Kearns & Garside (P) Carneys Lawyers (D1) CATCHWORDS : SUCCESSION [171]- Construction- Disposition to "other daughters". WORDS & PHRASES- "Other". Fell v Fell (1922) 31 CLR 268 Hancock v Watson [1902] AC 14 Heron v Ulster Bank Ltd [1974] NI 44 In re Chaston (1881) 18 Ch D 218 CASES CITED : In re Crosse [1933] WN (Eng) 36; 77 So J 116 In re Hagen's Trusts (1877) 46 LJ Ch 665 In re Wragg [1959] 1 WLR 922 Kirby-Smith v Parnell [1903] 1 Ch 483 Lassence v Tierney (1849) 1 Mac & G 551; 41 ER 1379 Stanley v Bond [1913] 1 IR 170 DECISION : The disputed half share of capital passes to the children of the daughters who died with issue.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG

MONDAY 5 MARCH 2001

3822/2000 - MARKS v POPE

JUDGMENT

1 HIS HONOUR: This is a suit to construe a will made in 1924, in the events which have happened, to determine who is entitled to a one-half share of capital. 2 Ernest John Marks died on 9 January 1925 having first made and published his last will on 13 May 1924. Probate of this will was duly granted to the executors named therein on 16 April 1925. The plaintiffs are the current trustees of the will. 3 The testator was survived by his widow (who died on 22 June 1927), by his three sons Roy, Eric and Cedric, and his five daughters (listed in order of their deaths), Hazel, Iris, Wanda, Myrtle and Myee. For brevity, and not meaning any disrespect, I will refer to the testator's relatives by their first names. 4 The summons is in an unacceptable form. The three plaintiffs suing as trustees of the estate of Ernest John Marks are also named as three of the nine second defendants. One cannot sue oneself even in a different capacity, so that the names of the plaintiffs must be struck out from amongst the second defendants. The four persons named as first defendants are also named again as second defendants and their four names must be struck out. This leaves, as the second defendants, Dianne Janet Johnson and Gail Christine Taylor, whom, I am informed, are a granddaughter and niece of a son, respectively. They represent the persons entitled as next of kin. However, there is a problem in that the plaintiffs' solicitor has purported to appear for the second defendants as well as the plaintiffs. This is not permissible, or at least is not permissible without the leave of the Court. 5 It is very surprising that these elementary mistakes have been made in formulating the summons, especially as the plaintiffs' solicitors kept reminding the Court that they are property law specialists. However, I am satisfied that everyone who had an interest in the outcome of this litigation was aware of its existence and had the opportunity to participate, and as counsel for the plaintiffs as trustees, and the first defendants as primary claimants, have put forward all possible arguments in the interests of all concerned, it was best to proceed to deal with the case on the merits, on the basis that an amended summons would be filed in due course. 6 The testator essentially provided as follows: