Matthews v Matthews [1913] HCA 49

Matthews v Matthews [1913] HCA 49

The doctrine of Strong v. Bird, allowing an imperfect gift to be perfected by appointment as executor, does not apply where the testator did not have an intention to make an immediate gift or where that intention was not continuous up to death. On the evidence, the respondent failed to prove both an attempted immediate gift and a continuous intention by the testator to make such a gift of the land in question, nor did he accept the land subject to its burdens. The claim to the land as a perfected gift therefore fails.

Parties
Appellants; Plaintiffs; Executrices of the Will of George Cole Matthews: Mary Ann Matthews, Frances Chambers, Mary Ann Matthews the younger and Sarah Ann Matthews; Respondent; Defendant; Executor: Frake Richard Matthews
Jurisdiction
Australia
Judgment Date
13 October 1913
Procedural Posture
Appeal / On Appeal From the Supreme Court of Victoria
Outcome
Appeal allowed; decision below reversed
Legal Topics
Imperfect Gifts, Doctrine of Strong V. Bird, Intention to Make Immediate Gift, Gift of Land, Executor as Donee, Administration and Probate Act 1890 (vic)
Property Law Wills and Estates Equity Imperfect Gifts Doctrine of Strong V. Bird Intention to Make Immediate Gift Gift of Land Executor as Donee +1 more

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Parties

Mary Ann Matthews, Frances Chambers, Mary Ann Matthews the younger and Sarah Ann Matthews

Appellants; Plaintiffs; Executrices of the Will of George Cole Matthews

Frake Richard Matthews

Respondent; Defendant; Executor

Procedural Posture

Appeal / On Appeal From the Supreme Court of Victoria

Legal Issues

  1. 1 Whether a verbal or otherwise imperfect gift of land by a testator may be perfected by appointment of the donee as executor under the doctrine of Strong v. Bird
  2. 2 Whether the doctrine applies to gifts of land in Victoria or only personal property
  3. 3 Whether the testator had the intention at the relevant time to make an immediate, effective gift and intended it to stand until death

Ratio Decidendi

The doctrine of Strong v. Bird, allowing an imperfect gift to be perfected by appointment as executor, does not apply where the testator did not have an intention to make an immediate gift or where that intention was not continuous up to death. On the evidence, the respondent failed to prove both an attempted immediate gift and a continuous intention by the testator to make such a gift of the land in question, nor did he accept the land subject to its burdens. The claim to the land as a perfected gift therefore fails.

Court Disposition

Appeal allowed; decision below reversed

Orders

  • Order appealed from discharged
  • Declaration that the plaintiffs are entitled to possession of the premises and land mentioned in the statement of claim