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Decisions of the Superior Courts of New South Wales, 1788-1899

Macdonald v Wright [1837] NSWSupC 66

succession, right to sell land, specific performance, defences, trust, breach of

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 6 October 1837

Source: Sydney Gazette, 7 October 1837[ 1]

Macdonald v. Wright and others. - This was an amicable suit, to obtain a decree of the Court under the following circumstances:- On the 30th May, 1836, defendant in his own name sold to the plaintiff an allotment of land at Darlinghurst, containing rather more than two acres, for £1150.  Mr. Macdonald afterwards found that Mr. Wright had not sold the land in his own right, but as executor to the late Mr. Whitfield; and as there was some doubt whether under Mr. Whitfield's will the executor could sell real estates, an application was made to the Court to confirm the sale.  Upon reading the will, the Court was of opinion that although the executors were empowered to sell real estates to pay the testator's debts, they could not sell it to pay debts contracted by themselves: if the personal estate was not sufficient to pay for the maintenance and education of the infants, the Court, as guardian to the infants, would have seen whether it was necessary to sell.  The only way in which the defendant could give the plaintiff a title, would be to apply to the Court for leave to sell.  Decree refused.

Counsel for the plaintiff, Mr. Windeyer; for the executor, Mr. a'Beckett: for the infants, Mr. S. Stephen.


[1 ] See also Sydney Herald, 9 October 1837.

Published by the Division of Law, Macquarie University