Watkins v Combes [1921] HCA 24

H.C. or A. her executor and trustee, and devised and bequeathed to |

all her real and personal property upon trust to pay to Algemon James Combes two-thirds of the proceeds of realization and sale thereof and to pay the remaining one-third to Arundel Sins At the time the wills were made Mrs. Reynolds was the regi: tered proprietor of a certain piece of land, and on 14th July 1919 she transferred that land, subject to mortgages amounting to £370, to Daniel Watkins and his wife, Ellen Margaret Watkins 'the consideration for the transfer being an agreement by Watkin and his wife to maintain Mrs, Reynolds for the remainder of her ife. A certificate of title was subsequently issued upon such transfer. At the date of the death of Mrs. Reynolds the land al referred to was valued at about £1,850 and the rest of her property at about £30, After the death of Mrs. Reynolds Daniel Watkins applied to the Supreme Court of Tasmania for probate of the will of Lith November 1918, and a caveat was entered by David Saunders and Percy Rutherford Henry against such probate being grant A caveat was also entered against any dealings with the land by David Watkins and his wife,

A suit in equity was then brought by Algernon James Combs and Arundel Sims against Daniel Watkins and his wife and David Saunders and Percy Rutherford Henry in which the plaintifs, by their bill of complaint, claimed (inter alia) a declaration that the transfer by Mrs. Reynolds to Daniel Watkins and his wife ofthe piece of land was obtained by their fraud and undue influence and ; a declaration that the appointment of Daniel Watkins as executor and trustee of the will of 14th November 1918 was procured by the fraud, undue influence and constraint of Danie Watkins and his wife and was void ; an injunction restraining Daniel Watkins and his wife from receiving, getting in or dealing with the estate of Mrs. Reynolds ; and an order appointing a receiver of the estate of Mrs. Reynolds pending a grant of administration. One of the defences was that the Supreme Court in its equity juris diction had no jurisdiction to entertain the claim,

The suit was heard by Crisp J., who made a decree in which (inter alia) he made the declarations, granted an injunction and appointed a receiver as prayed, and reserved liberty to the

From that decision Daniel Watkins and his wife now appealed wr to the High Court.

Gregory (Hoggins with him), for the appellants. Probate of the vill of Mrs, Reynolds not having been granted, the plaintiffs have no cause of action with regard either to the transfer of the land or to theappointment of the executor of the will. 'They have no interest which entitles them to equitable relief, and so there was no juris- diction to declare that either the transfer or the appointment of | the executor of the will was procured by fraud and was void. [Hicorss J. referred to Williams on Executors, 9th ed., p. 236. (Rice J. referred to Davis v. Chanter (1) ; Daniel's Chancery Prac- tice, Sth ed., vol. r., p. 349.]

L. L. Dobson for the respondents, 'The plaintiffs have an interest which entitled them to seek the protection of the Court, A Court of equity will entertain an action by a beneficiary to recover a legacy under a will which has not been proved against an exeoutor who is concealing the will (Tucker v. Phipps (2) ), and on the same principle it will entertain an action in the circumstances of this case. On the face of the pleadings as between the plaintiffs and the defendants Daniel Watkins and his wife, the plaintifis are entitled to the land subject only to proof of their title, and they are merely prevented from proving their title until probate is granted.

The defendant Daniel Watkins is propounding a will under which the plaintiffs are the sole beneficiaries, and it does not lie in his 'mouth to say that the plaintiffs are not entitled to sue. The Court may order the appeal to stand over until probate has been granted (Pinney v. Hunt (4) ).

Kwox C.J. We are all of opinion that there is a fatal defect as to Parties,

to file a supplemental bill for the removal of Daniel Watkins from H.C. or A.

H.C.orA. The following consent order was subsequently made :- -

alle The appellants by their counsel undertake np Comes. to deal with the land in question orto ries

or procure to be registered any documey in existence relating thereto for one month ajter the granting of probate to enable the plaintiffs to take proceedings, and to consen, to the extension of the caveat for that tine, the intention being that the status quo as i» the land shall be preserved for that time, The appellants undertake also to speed application for probate on the plains? undertaking to procure the withdrawal of the caveat against probate and to pay the taxed costs of an unopposed application jor probate as from this date. The plainifi undertake to indemnify Daniel Watkins 'against payment of any probate duty, but if the transfer to Daniel Watkins and his wile ultimately takes effect any duty payable in respect of the land transferred is not eoveral by this indemnity. On these undertakings appeal allowed, suit dismissed, parties to 'pay their own costs in the High Court andthe Supreme Court.

Solicitors for the appellants, Hollow & Haughton for C. D. Hogg, Hobart. 4 Solicitors for the respondents, Dobson, Mitchell & Allport, Hobart.