Buhlmann v Nilsson [1921] HCA 38

Buhlmann v Nilsson [1921] HCA 38

The devisees of the testator's mortgaged land are 'persons becoming beneficially entitled to such land through or under the deceased person' within s 52 of the Administration and Probate Act 1919 (SA). As the will contains no express contrary intention by distinct reference to the money charged, the devised land...

Source-derived case information.

Parties
Appellant: Dora Sophia Buhlmann; Appellant: Katrina Magdalena Charlotta Johansson; Respondent: Edward Ernest Carl Nilsson; Respondent: Johann Carl August Nitschke
Jurisdiction
Australia
Judgment Date
16 September 1921
Procedural Posture
Appeal / On Appeal From the Supreme Court of South Australia
Outcome
Appeal dismissed with costs
Legal Topics
Right of Devisee to Have Mortgage Debt Satisfied, Interpretation of Wills, Primary Liability for Mortgage Under Administration and Probate Act 1919 (sa) S 52
Wills and Estates Succession Law Right of Devisee to Have Mortgage Debt Satisfied Interpretation of Wills Primary Liability for Mortgage Under Administration and Probate Act 1919 (sa) S 52

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Parties

Dora Sophia Buhlmann

Appellant

Katrina Magdalena Charlotta Johansson

Appellant

Edward Ernest Carl Nilsson

Respondent

Johann Carl August Nitschke

Respondent

Procedural Posture

Appeal / On Appeal From the Supreme Court of South Australia

Legal Issues

  1. 1 Whether, under the testator's will and s 52 of the Administration and Probate Act 1919 (SA), devisees of mortgaged land are entitled to have the mortgage paid out of other assets of the estate
  2. 2 Whether the beneficiaries became 'beneficially entitled' to the land within the meaning of s 52

Ratio Decidendi

The devisees of the testator's mortgaged land are 'persons becoming beneficially entitled to such land through or under the deceased person' within s 52 of the Administration and Probate Act 1919 (SA). As the will contains no express contrary intention by distinct reference to the money charged, the devised land remains primarily liable for the mortgage, and the devisees are not entitled to have any part of the mortgage satisfied out of other assets of the testator.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs