Jenkins v Stewart [1906] HCA 35

Jenkins v Stewart [1906] HCA 35

The High Court held that the shares of Donald and Dugald were intended by the testator to be vested on their surviving him, with the gift over provision applying only if they predeceased the testator without leaving lawful issue. The codicil was used to resolve the ambiguity in the will, confirming that the intent was for Donald and Dugald to take an absolute and vested interest if they survived the testator.

Parties
Appellants: Donald Halley Jenkins and Dugald McKellar Jenkins; Respondents: Agnes Mann Stewart, Jessie Allan Hill, Annie Sinclair Jenkins, Kate Maud Jenkins, Nellie Cope
Jurisdiction
Australia
Judgment Date
08 June 1906
Procedural Posture
Appeal / On Appeal From the Supreme Court of Victoria
Outcome
appeal allowed; order varied; questions answered as stated
Legal Topics
Construction of Wills, Gift Over Upon Death Without Issue, Use of Codicil to Interpret Will
Succession Law Wills and Estates Construction of Wills Gift Over Upon Death Without Issue Use of Codicil to Interpret Will

Case Brief

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Parties

Donald Halley Jenkins and Dugald McKellar Jenkins

Appellants

Agnes Mann Stewart, Jessie Allan Hill, Annie Sinclair Jenkins, Kate Maud Jenkins, Nellie Cope

Respondents

Procedural Posture

Appeal / On Appeal From the Supreme Court of Victoria

Legal Issues

  1. 1 Whether the gift over in the will on death without leaving wife or children applies only if the beneficiary dies during the testator's lifetime or at any time
  2. 2 Whether the codicil may be used to interpret the will where there is ambiguity

Ratio Decidendi

The High Court held that the shares of Donald and Dugald were intended by the testator to be vested on their surviving him, with the gift over provision applying only if they predeceased the testator without leaving lawful issue. The codicil was used to resolve the ambiguity in the will, confirming that the intent was for Donald and Dugald to take an absolute and vested interest if they survived the testator.

Court Disposition

appeal allowed; order varied; questions answered as stated

Orders

  • Donald takes a vested interest in one-fourth of the estate (excluding household goods) and a legacy of £100 payable out of the remaining three-fourths, to be paid immediately after sale.
  • Dugald takes a vested interest in one-sixth of the residue of the remaining three-fourths after payment of the legacies and annuity, to be paid immediately after sale, subject to provision for the annuity.