Gellibrand v Murdoch [1937] HCA 10

Gellibrand v Murdoch [1937] HCA 10

The mortgage debt should be borne by the specifically mortgaged seven-tenths interest, i.e., five-sevenths by the specific devisees and two-sevenths by two one-tenth shares in the residuary estate. No contrary intention in the will displaces the statutory rule under section 35 of the Administration and Probate Act 1935 (Tas.). The words in the mortgage did not extend the charge to subsequently acquired interests. Shares given to the bank did not form part of the security for the overdraft, as the general banker's lien was insufficient, and the equities of the mortgage prevailed.

Parties
Appellant: Gellibrand; Respondents: Murdoch and Others; Respondent/cross Appellant: Sir John Gellibrand; Appellant/interested Party in Residue: Grace Penwarne Gellibrand
Jurisdiction
Australia
Procedural Posture
Appeal / High Court Appeal From Supreme Court of Tasmania
Outcome
Appeal allowed in part. Cross-appeal dismissed.
Legal Topics
Construction of Wills, Mortgaged Property, Payment of Debts, Locke King's Act, Banker's Lien, Devise, Administration of Estates
Wills and Estates Property Law Equity Construction of Wills Mortgaged Property Payment of Debts Locke King's Act Banker's Lien +2 more

Case Brief

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Parties

Gellibrand

Appellant

Murdoch and Others

Respondents

Sir John Gellibrand

Respondent/cross Appellant

Grace Penwarne Gellibrand

Appellant/interested Party in Residue

Procedural Posture

Appeal / High Court Appeal From Supreme Court of Tasmania

Legal Issues

  1. 1 Whether mortgage debt should be apportioned among specific and residuary devisees under the will
  2. 2 Whether the testator's will disclosed a contrary intention regarding the burden of debt under the Administration and Probate Act 1935 (Tas.) section 35
  3. 3 Whether bank shares held by bank under a general banker's lien are liable to the overdraft

Ratio Decidendi

The mortgage debt should be borne by the specifically mortgaged seven-tenths interest, i.e., five-sevenths by the specific devisees and two-sevenths by two one-tenth shares in the residuary estate. No contrary intention in the will displaces the statutory rule under section 35 of the Administration and Probate Act 1935 (Tas.). The words in the mortgage did not extend the charge to subsequently acquired interests. Shares given to the bank did not form part of the security for the overdraft, as the general banker's lien was insufficient, and the equities of the mortgage prevailed.

Court Disposition

Appeal allowed in part. Cross-appeal dismissed.

Orders

  • Order of the Supreme Court so far as it answers the third question discharged.
  • Principal sum of £9,600 and interest secured on first mortgage to be borne as: five-sevenths by devisees in proportions given under the will, two-sevenths by two one-tenth shares in the residuary estate.