Pead v Pead and Kitching [1912] HCA 77

Pead v Pead and Kitching [1912] HCA 77

There was an intestacy in respect of the remainder after the estate granted to the widow, and the remainder vested in the heir-at-law to be ascertained at the date of the testator's death, not upon the youngest child attaining twenty-one years.

Parties
Appellant: Ellen Pead and Others; Respondent: William Alfred Pead; Respondent: Thomas George Kitching
Jurisdiction
Australia
Judgment Date
07 November 1912
Procedural Posture
Appeal / On Appeal From the Supreme Court of Western Australia
Outcome
Appeal dismissed. Judgment affirmed with variation.
Legal Topics
Will Construction, Intestacy, Primogeniture, Heir at Law Determination
Real Property Succession Law Will Construction Intestacy Primogeniture Heir at Law Determination

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Parties

Ellen Pead and Others

Appellant

William Alfred Pead

Respondent

Thomas George Kitching

Respondent

Procedural Posture

Appeal / On Appeal From the Supreme Court of Western Australia

Legal Issues

  1. 1 Interpretation of a will leaving estate to widow until youngest child attains twenty-one
  2. 2 Determination of remainder interest and intestacy
  3. 3 Whether remainder vests in heir-at-law or next of kin

Ratio Decidendi

There was an intestacy in respect of the remainder after the estate granted to the widow, and the remainder vested in the heir-at-law to be ascertained at the date of the testator's death, not upon the youngest child attaining twenty-one years.

Court Disposition

Appeal dismissed. Judgment affirmed with variation.

Orders

  • Judgment affirmed with variation by adding 'if any' after 'right of the widow to dower'.
  • Appellants to pay respondent Kitching's costs of appeal.