Kenna v Conolly [1938] HCA 46

Kenna v Conolly [1938] HCA 46

All children of the testator's brother Michael and sister Margaret who survived the testator took a share unless they died leaving issue before the testator's last surviving child; in such case, the issue took the parent's share. Interests of children dying without issue were transmissible to their representatives unless the death was with issue before distribution.

Parties
Appellants: Kenna and Another; Respondents: Conolly and Others; Respondents: Margaret Cox, Mary or Minnie Cox, Timothy Cox, and Michael Cox; Plaintiffs: Richard Kenna, Patrick Kenna and Johanna Larkin; Trustees: William Arnold Conolly and John Joseph O'Connor; Personal Representatives: Lottie Kenna and Alwyn Leslie Kinna
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal From the Supreme Court of New South Wales
Outcome
Appeal dismissed
Legal Topics
Will Construction, Vesting, Contingent Interests, Gift Over, Residue of Estate
Equity Succession Law Will Construction Vesting Contingent Interests Gift Over Residue of Estate

Case Brief

Summary, issues, holding and outcome

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Parties

Kenna and Another

Appellants

Conolly and Others

Respondents

Margaret Cox, Mary or Minnie Cox, Timothy Cox, and Michael Cox

Respondents

Richard Kenna, Patrick Kenna and Johanna Larkin

Plaintiffs

William Arnold Conolly and John Joseph O'Connor

Trustees

Lottie Kenna and Alwyn Leslie Kinna

Personal Representatives

Procedural Posture

Appeal / Appeal From the Supreme Court of New South Wales

Legal Issues

  1. 1 Whether the children of the testator's brother and sister, who survived the testator, took a vested share unless they died leaving issue before the testator's last surviving child.
  2. 2 Whether the issue of such child or children took the parent's share.
  3. 3 Whether interests were transmissible to representatives of children dying without issue before distribution.

Ratio Decidendi

All children of the testator's brother Michael and sister Margaret who survived the testator took a share unless they died leaving issue before the testator's last surviving child; in such case, the issue took the parent's share. Interests of children dying without issue were transmissible to their representatives unless the death was with issue before distribution.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs.