Rogers v Rogers [1916] HCA 23

Rogers v Rogers [1916] HCA 23

The absolute gift to the testator's three sons was not cut down by the subsequent provisions, which were too uncertain and ambiguous, and therefore did not displace the clear intention of an absolute gift. A gift over which fails for remoteness does not affect the previous absolute gift, which stands. The prior...

Source-derived case information.

Parties
Appellant: Russell Aubrey Rogers; Respondent: George Albert Rogers; Respondent: Olive Rogers; Respondent: Geoffrey Norman Rogers; Respondent: Agnes Rogers
Jurisdiction
Australia
Judgment Date
07 April 1916
Procedural Posture
Appeal / Decision on Appeal From Supreme Court of New South Wales (equity Division), Affirming Primary Decision
Outcome
Appeal dismissed
Legal Topics
Construction of Wills, Absolute Gifts, Gifts Over, Remoteness, Res Judicata
Wills and Estates Construction of Wills Absolute Gifts Gifts Over Remoteness Res Judicata

Source-derived case record

Summary, issues, holding and outcome

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Parties

Russell Aubrey Rogers

Appellant

George Albert Rogers

Respondent

Olive Rogers

Respondent

Geoffrey Norman Rogers

Respondent

Agnes Rogers

Respondent

Procedural Posture

Appeal / Decision on Appeal From Supreme Court of New South Wales (equity Division), Affirming Primary Decision

Legal Issues

  1. 1 Whether the absolute gift to the three sons in the will was cut down by subsequent provisions
  2. 2 Whether the gift over was void for remoteness
  3. 3 Whether a prior court order on construction of the will was res judicata

Ratio Decidendi

The absolute gift to the testator's three sons was not cut down by the subsequent provisions, which were too uncertain and ambiguous, and therefore did not displace the clear intention of an absolute gift. A gift over which fails for remoteness does not affect the previous absolute gift, which stands. The prior Supreme Court order did not operate as res judicata to prevent construction by the present court.

Court Disposition

Appeal dismissed

Orders

  • Costs of all parties as between solicitor and client to be paid out of testator's residuary estate