Campbell v Glasgow [1919] HCA 57

Campbell v Glasgow [1919] HCA 57

The Court held that, by virtue of sec. 26 of the Wills Act, the words of the will (providing for a life estate to Rosetta Campbell and then to her 'lawful issue as tenants in common') passed the fee simple to the issue as purchasers; there were sufficient words of distribution and context to exclude the rule in Shelley's Case. Therefore, Rosetta Campbell took only a life estate, and upon her death without issue, the gift over applied.

Parties
Appellant: John Campbell; Appellant: Alfred William Barkly Cust; Respondent: John Glasgow; Respondent: John Whyte Adams; Respondent: Maria Jane Ely; Respondent: Elizabeth Curtis
Jurisdiction
Australia
Judgment Date
05 November 1919
Procedural Posture
Appeal / On Appeal From the Supreme Court of Victoria
Outcome
Appeal dismissed
Legal Topics
Construction of Wills, Estate in Tail Vs Life Estate, Rule in Shelley's Case, Effect of Wills Act
Wills and Estates Real Property Construction of Wills Estate in Tail Vs Life Estate Rule in Shelley's Case Effect of Wills Act

Case Brief

Summary, issues, holding and outcome

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Parties

John Campbell

Appellant

Alfred William Barkly Cust

Appellant

John Glasgow

Respondent

John Whyte Adams

Respondent

Maria Jane Ely

Respondent

Elizabeth Curtis

Respondent

Procedural Posture

Appeal / On Appeal From the Supreme Court of Victoria

Legal Issues

  1. 1 Whether under the will Rosetta Campbell took an estate for life only or an estate tail; whether the rule in Shelley's Case applies; whether sec. 26 of the Wills Act 1890 (Vict.) operates to pass the fee simple to the issue of the daughter; construction of the term 'issue'.

Ratio Decidendi

The Court held that, by virtue of sec. 26 of the Wills Act, the words of the will (providing for a life estate to Rosetta Campbell and then to her 'lawful issue as tenants in common') passed the fee simple to the issue as purchasers; there were sufficient words of distribution and context to exclude the rule in Shelley's Case. Therefore, Rosetta Campbell took only a life estate, and upon her death without issue, the gift over applied.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • Costs of all parties to the appeal to be paid out of the estate of the testator as between solicitor and client.