Drake-Brockman v Gregory [1920] HCA 57

Drake-Brockman v Gregory [1920] HCA 57

The majority (Knox C.J., Gavan Duffy J.) held that the gift by will passed the share (or its value) to the executor and there was no intestacy; the minority (Isaacs and Rich JJ.) held that exercise of the purchase option was a rejection of the gift, causing the gift to fail so that there was an intestacy as to the share. The Court being equally divided, the decision below was affirmed.

Parties
Appellant: Alice Drake-Brockman; Appellant: Patricia Gregory (by her guardian ad litem, Edward Arthur Smith); Respondent: Ancell Clement Gregory (also called Captain A. C. Gregory)
Jurisdiction
Australia
Judgment Date
15 September 1920
Procedural Posture
Appeal / High Court Appeal From Supreme Court of Western Australia
Outcome
Appeal dismissed. Judgment of the Supreme Court affirmed. No order as to costs except that the executor is entitled to costs as between solicitor and client out of the estate. Deposit to be refunded.
Legal Topics
Construction of Wills, Gift of Partnership Share, Executor's Election to Purchase Share, Intestacy
Wills and Estates Trusts and Trustees Partnerships Construction of Wills Gift of Partnership Share Executor's Election to Purchase Share Intestacy

Case Brief

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Parties

Alice Drake-Brockman

Appellant

Patricia Gregory (by her guardian ad litem, Edward Arthur Smith)

Appellant

Ancell Clement Gregory (also called Captain A. C. Gregory)

Respondent

Procedural Posture

Appeal / High Court Appeal From Supreme Court of Western Australia

Legal Issues

  1. 1 Whether the testator's bequest of his partnership share amounted to a gift of the share or only the proceeds if purchased under the partnership deed
  2. 2 Whether the executor's election to purchase the share created an intestacy as to the share

Ratio Decidendi

The majority (Knox C.J., Gavan Duffy J.) held that the gift by will passed the share (or its value) to the executor and there was no intestacy; the minority (Isaacs and Rich JJ.) held that exercise of the purchase option was a rejection of the gift, causing the gift to fail so that there was an intestacy as to the share. The Court being equally divided, the decision below was affirmed.

Court Disposition

Appeal dismissed. Judgment of the Supreme Court affirmed. No order as to costs except that the executor is entitled to costs as between solicitor and client out of the estate. Deposit to be refunded.

Orders

  • Executor entitled to costs as between solicitor and client out of the estate.
  • Deposit to be refunded.