Backhouse v Lloyd [1933] HCA 49

Backhouse v Lloyd [1933] HCA 49

Clause 9 of the will operates as a residuary gift, meaning the sisters' interest is postponed to the prior satisfaction of the annuities for the husband and Mrs. Gordon. The testatrix intended the sisters to take only what remains after the annuities are paid in full, not to grant them a specific fund or pecuniary legacy. The decision below correctly construed the will and codicil in prioritising Mrs. Gordon's annuity over the appellants.

Parties
Appellant: Katherine Backhouse; Appellant: Ellen Constance Campbell; Respondent: Moira Kathleen Gordon (formerly Byron)
Jurisdiction
Australia
Procedural Posture
Originating Summons (appeal) / Appeal to High Court of Australia From Supreme Court of South Australia
Outcome
Appeal dismissed
Legal Topics
Priority of Legacies, Construction of Testamentary Disposition, Residuary Gifts, Annuity Entitlement
Wills and Estates Priority of Legacies Construction of Testamentary Disposition Residuary Gifts Annuity Entitlement

Case Brief

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Parties

Katherine Backhouse

Appellant

Ellen Constance Campbell

Appellant

Moira Kathleen Gordon (formerly Byron)

Respondent

Procedural Posture

Originating Summons (appeal) / Appeal to High Court of Australia From Supreme Court of South Australia

Legal Issues

  1. 1 Whether provision in favour of appellants is a residuary bequest or particular pecuniary legacy
  2. 2 Order of payment of annuities and residuary gifts in case of deficiency
  3. 3 Priority entitlement between annuitants and residuary legatees

Ratio Decidendi

Clause 9 of the will operates as a residuary gift, meaning the sisters' interest is postponed to the prior satisfaction of the annuities for the husband and Mrs. Gordon. The testatrix intended the sisters to take only what remains after the annuities are paid in full, not to grant them a specific fund or pecuniary legacy. The decision below correctly construed the will and codicil in prioritising Mrs. Gordon's annuity over the appellants.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs
  • Respondent entitled to costs