Smith v Marshall [1907] HCA 33

Smith v Marshall [1907] HCA 33

The right of dower was extinguished in New South Wales as a result of successive legislative reforms culminating in the Wills, Probate and Administration Act 1898, which, by express provision and necessary implication, abolished dower from intestate and testate estates and thereby destroyed its foundation, making the repeal of the Dower Act in 1901 a matter of legislative tidying, not revival of the common law right. Therefore, the repeal of the earlier statute did not revive the right of dower in lands alienated during the husband's lifetime.

Parties
Appellants; Defendants: Marshall and Others; Respondent; Plaintiff: Smith
Jurisdiction
Australia
Judgment Date
13 August 1907
Procedural Posture
Appeal / On Appeal From the Supreme Court of New South Wales; Appeal From a Decision of Walker J. on a Vendor and Purchaser Summons
Outcome
Appeal dismissed with costs
Legal Topics
Dower, Consolidation of Statutes, Repeal and Revival of Common Law, Conveyancing, Succession, Wills and Probate
Property Law Statutory Interpretation Dower Consolidation of Statutes Repeal and Revival of Common Law Conveyancing Succession Wills and Probate

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Parties

Marshall and Others

Appellants; Defendants

Smith

Respondent; Plaintiff

Procedural Posture

Appeal / On Appeal From the Supreme Court of New South Wales; Appeal From a Decision of Walker J. on a Vendor and Purchaser Summons

Legal Issues

  1. 1 Whether repeal of the Act 7 Wm. IV., No. 8 revives the common law right of dower in New South Wales
  2. 2 Whether subsequent consolidating or repealing statutes revived or extinguished the right of dower in land alienated inter vivos by the husband

Ratio Decidendi

The right of dower was extinguished in New South Wales as a result of successive legislative reforms culminating in the Wills, Probate and Administration Act 1898, which, by express provision and necessary implication, abolished dower from intestate and testate estates and thereby destroyed its foundation, making the repeal of the Dower Act in 1901 a matter of legislative tidying, not revival of the common law right. Therefore, the repeal of the earlier statute did not revive the right of dower in lands alienated during the husband's lifetime.

Court Disposition

Appeal dismissed with costs

Orders

  • Declarations granted that the respective wives of J. E. Holdsworth, L. J. Holdsworth, and the plaintiff were not entitled to dower in the property; vendor’s title was good.