DEEP V. NASSER AND OTHERS

DEEP V. NASSER AND OTHERS

The testatrix intended, by her disposition, to make a gift in favour of Helen Nasser and her children of the building and land upon which shop No. 161 stood (including the old shop, two storerooms behind, and veranda bedroom) and to dispose of the rest of the land comprised in the certificate of title in favour of the appellant Norman Deep. There is insufficient basis to divide the block along the notional lines indicated by the appellant or cross-appellant; rather, the rest of the certificate of title, except for the portion under the devise to Helen Nasser, passes to Norman Deep.

Parties
Appellant: Norman Deep; Respondents: Helen Nasser & Ors.
Jurisdiction
Australia
Judgment Date
07 December 1955
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed. Cross-appeal dismissed. Decree varied.
Legal Topics
Construction of Wills, Identification of Property in Disposition, Devise of Land, Residuary Estate
Wills and Estates Construction of Wills Identification of Property in Disposition Devise of Land Residuary Estate

Case Brief

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Parties

Norman Deep

Appellant

Helen Nasser & Ors.

Respondents

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 What is the correct identification of the subject matter of two trusts of realty declared by the will of Edith Scandra Deep?
  2. 2 Does the devise to Norman Deep of 'the said shop and premises' comprise the whole of the land except for that passing to Helen Nasser and her children?
  3. 3 What property is comprised in the devise to Helen Nasser of 'my other shop premises'?

Ratio Decidendi

The testatrix intended, by her disposition, to make a gift in favour of Helen Nasser and her children of the building and land upon which shop No. 161 stood (including the old shop, two storerooms behind, and veranda bedroom) and to dispose of the rest of the land comprised in the certificate of title in favour of the appellant Norman Deep. There is insufficient basis to divide the block along the notional lines indicated by the appellant or cross-appellant; rather, the rest of the certificate of title, except for the portion under the devise to Helen Nasser, passes to Norman Deep.

Court Disposition

Appeal allowed. Cross-appeal dismissed. Decree varied.

Orders

  • Vary the decretal order of 27th May 1955 by omitting the second and third declarations and substituting a declaration that under the devise to the plaintiff of the land in the will referred to as 'the said shop and premises', the plaintiff is entitled to the whole of the land comprised in certificate of title 4631...
  • Costs of all parties of the appeal to be taxed as between solicitor and client and paid out of the estate.