COBBETT V. EAST LONDON HOSPITAL 1/1923

COBBETT V. EAST LONDON HOSPITAL 1/1923

The direction in the will to pay income to the tenant in tail for the time being of Holebrook is ineffective as no estate tail could exist under the Real Property Act; thus the gift never arose or took effect. The gift over to the residuary estate after the failure or determination of all estates tail is valid, as the estates tail were incapable of coming into existence, and is not void for perpetuity.

Parties
Appellant: Helena Elsie Cobbett; Beneficiary (life Tenant, Referenced): Wilberforce Cobbett; Beneficiary (cousin, Referenced): Hugh R N Cobbett; Residuary Legatee (referenced): East London Hospital; Trustee: Trustees of the estate; Advocate for Certain Next of Kin (not Respondents): Mr Lodge
Jurisdiction
Australia
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed; Supreme Court order affirmed
Legal Topics
Construction of Wills, Rule Against Perpetuities, Estates Tail, Residuary Estate, Real Property Act
Succession Law Property Law Construction of Wills Rule Against Perpetuities Estates Tail Residuary Estate Real Property Act

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Parties

Helena Elsie Cobbett

Appellant

Wilberforce Cobbett

Beneficiary (life Tenant, Referenced)

Hugh R N Cobbett

Beneficiary (cousin, Referenced)

East London Hospital

Residuary Legatee (referenced)

Trustees of the estate

Trustee

Mr Lodge

Advocate for Certain Next of Kin (not Respondents)

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the direction to pay the income of the fund to the tenant in tail for the time being of Holebrook is void because no estate tail could arise given the Real Property Act; Whether the gift is void as tending to create a perpetuity; Whether the sum of £20,000 falls into the residuary estate after the death of Hugh Cobbett and his widow.

Ratio Decidendi

The direction in the will to pay income to the tenant in tail for the time being of Holebrook is ineffective as no estate tail could exist under the Real Property Act; thus the gift never arose or took effect. The gift over to the residuary estate after the failure or determination of all estates tail is valid, as the estates tail were incapable of coming into existence, and is not void for perpetuity.

Court Disposition

appeal dismissed; Supreme Court order affirmed

Orders

  • Costs of the appeal for all parties and represented next of kin to be paid out of the £20,000 fund; trustees' costs to be taxed and paid as between solicitor and client