Dean v Cole [1921] HCA 46

On the true construction of the will, the words 'trusting to her' were expressions of confidence and did not impose a trust on the widow. Accordingly, the gift to her of the residuary estate was absolute and not subject to a trust for the children.

Parties: Appellant: Charles Frederick Dean; Appellant: Emily Ann Swanston; Respondent: Jane Cole
Jurisdiction: Australia
Judgment Date: 17 November 1921
Procedural Posture: Appeal / Appeal From Supreme Court of New South Wales on Originating Summons for Construction of Will
Outcome: Appeal allowed; decision of Harvey J. set aside; declaration that Sarah Dean was absolutely entitled to the residuary estate
Legal Topics: Interpretation of Will, Absolute Gift or Trust

Wills and Estates Interpretation of Will Absolute Gift or Trust

Case Brief

Summary, issues, holding and outcome

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Full judgment text Downloadable case file Legal principles 3 Authorities cited 10 Party arguments 2 Amounts and remedies 2

Parties

Charles Frederick Dean

Appellant

Emily Ann Swanston

Appellant

Jane Cole

Respondent

Procedural Posture

Appeal / Appeal From Supreme Court of New South Wales on Originating Summons for Construction of Will

Legal Issues

1 Whether the gift to the widow under the will was absolute or subject to a trust for the children

Ratio Decidendi

Court Disposition

Appeal allowed; decision of Harvey J. set aside; declaration that Sarah Dean was absolutely entitled to the residuary estate

Orders

Order of Harvey J. set aside so far as it declared the widow was not absolutely entitled to the residuary estate
Declare the widow absolutely entitled to the residuary estate after payment of debts, expenses, and specified sums