McQuade v Morgan [1927] HCA 21

McQuade v Morgan [1927] HCA 21

The act of charging the interest in income appointed under the deed, regardless of whether the charge is released before the interest falls into possession, constitutes a forfeiture under the unambiguous forfeiture clause contained in the deed. The rule from Jarman on Wills that no forfeiture occurs if the charge is got rid of before the interest falls into possession is too broadly stated and does not apply to this case.

Parties
Appellant: Frederick Carleton McQuade; Respondent: Mary Ellen Morgan; Respondent: Minnie Thelma Long Innes; Respondent: Emily Carleton Holderness; Respondent: Dorothy May McQuade; Respondent: Kelso King; Respondent: Perey Vernon McCulloch; Respondent: Charles Henry Skarratt Keigwin
Jurisdiction
Australia
Judgment Date
06 May 1927
Procedural Posture
Appeal / Final Judgment of the High Court
Outcome
Appeal dismissed with costs.
Legal Topics
Power of Appointment, Forfeiture Clauses, Construction of Deeds, Interest in Income, Protective Trusts
Equity Trusts Wills and Estates Power of Appointment Forfeiture Clauses Construction of Deeds Interest in Income Protective Trusts

Case Brief

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Parties

Frederick Carleton McQuade

Appellant

Mary Ellen Morgan

Respondent

Minnie Thelma Long Innes

Respondent

Emily Carleton Holderness

Respondent

Dorothy May McQuade

Respondent

Kelso King

Respondent

Perey Vernon McCulloch

Respondent

Charles Henry Skarratt Keigwin

Respondent

Procedural Posture

Appeal / Final Judgment of the High Court

Legal Issues

  1. 1 Whether the appellant Frederick Carleton McQuade forfeited his interest in the appointed share by charging it as collateral security before it fell into possession
  2. 2 Whether the rule stated in Jarman on Wills, 6th ed., p. 1499, that no forfeiture is incurred if the charge is got rid of before the interest falls into possession, applies to this deed

Ratio Decidendi

The act of charging the interest in income appointed under the deed, regardless of whether the charge is released before the interest falls into possession, constitutes a forfeiture under the unambiguous forfeiture clause contained in the deed. The rule from Jarman on Wills that no forfeiture occurs if the charge is got rid of before the interest falls into possession is too broadly stated and does not apply to this case.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondents.