Duncan v Cathels [1956] HCA 56

Duncan v Cathels [1956] HCA 56

There was an absolute gift to Bisset Fenwick in the first instance; the subsequent limitations, including the proviso relating to income, did not operate in the events which occurred. Therefore, Bisset's share vests in the executors of his will per the rule in Lassence v. Tierney.

Parties
Appellant: Duncan; Respondents: Cathels and others; Respondent: Dunkley; Respondent: Fenwick; Respondent: R. C. Cathels
Jurisdiction
Australia
Procedural Posture
Appeal / On Appeal From the Supreme Court of New South Wales
Outcome
appeal allowed; cross-appeal dismissed
Legal Topics
Construction of Trust Instruments, Rule in Lassence V. Tierney, Absolute Gifts, Resulting Trusts
Trusts Property Law Construction of Trust Instruments Rule in Lassence V. Tierney Absolute Gifts Resulting Trusts

Case Brief

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Parties

Duncan

Appellant

Cathels and others

Respondents

Dunkley

Respondent

Fenwick

Respondent

R. C. Cathels

Respondent

Procedural Posture

Appeal / On Appeal From the Supreme Court of New South Wales

Legal Issues

  1. 1 Whether the share of Bisset Fenwick under the settlement was an absolute gift in the first instance
  2. 2 Whether the proviso relating to income applied in the events which occurred
  3. 3 Whether there was a resulting trust of the corpus of Bisset's share

Ratio Decidendi

There was an absolute gift to Bisset Fenwick in the first instance; the subsequent limitations, including the proviso relating to income, did not operate in the events which occurred. Therefore, Bisset's share vests in the executors of his will per the rule in Lassence v. Tierney.

Court Disposition

appeal allowed; cross-appeal dismissed

Orders

  • Delete declarations in decretal order.
  • Insert declaration that the share or interest of Bisset Fenwick deceased is now vested in the executors of his will.