John Dyneley Fell v Fell [1922] HCA 55

John Dyneley Fell v Fell [1922] HCA 55

The majority (Isaacs and Higgins JJ.) held that although the will did not specify the subject of the disposition after 'give devise and bequeath,' the context, the appointment of executors, and the presumption against intestacy sufficiently implied a gift of the whole estate to the named beneficiaries in equal shares; thus, the will is effective to dispose of the whole estate and there is no intestacy.

Parties
Appellant; Defendant: John Dyneley Fell; Appellant; Defendant: Jessie Donald Smith; Respondent; Plaintiff: David Fell; Respondent; Plaintiff: Donald Smith
Jurisdiction
Australia
Judgment Date
15 December 1922
Procedural Posture
Appeal / Judgment on Appeal From the Supreme Court of New South Wales
Outcome
Appeal allowed; order of the Supreme Court discharged.
Legal Topics
Construction of Wills, Uncertainty, Intestacy, Appointment of Executors, Gift of Estate
Wills and Estates Construction of Wills Uncertainty Intestacy Appointment of Executors Gift of Estate

Case Brief

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Parties

John Dyneley Fell

Appellant; Defendant

Jessie Donald Smith

Appellant; Defendant

David Fell

Respondent; Plaintiff

Donald Smith

Respondent; Plaintiff

Procedural Posture

Appeal / Judgment on Appeal From the Supreme Court of New South Wales

Legal Issues

  1. 1 Whether the will effects a valid gift of the testator's estate to the named beneficiaries or results in intestacy due to uncertainty

Ratio Decidendi

The majority (Isaacs and Higgins JJ.) held that although the will did not specify the subject of the disposition after 'give devise and bequeath,' the context, the appointment of executors, and the presumption against intestacy sufficiently implied a gift of the whole estate to the named beneficiaries in equal shares; thus, the will is effective to dispose of the whole estate and there is no intestacy.

Court Disposition

Appeal allowed; order of the Supreme Court discharged.

Orders

  • Declare that the persons mentioned in the will as beneficiaries are entitled to participate in the estate of the testator in equal shares.
  • Costs of all parties of the proceedings in the Supreme Court and of this appeal as between solicitor and client to be paid out of the estate.