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

Deering v Hancock [1839] NSWSupC 8

land law, title - succession

Supreme Court of New South Wales

Willis J., 1 March 1839

Source: Sydney Herald, 4 March 1839 [1]

Friday. -- Before Mr. Justice Willis.

Deering, infants, v. Hancock. -- Mr. Windeyer, the plaintiffs' counsel, stated this to be a bill by the plaintiffs, as the children of one Samuel Deering, deceased -- who, by his will, demised a piece of land in Pitt-street to one Andrew Ball in trust for his children -- against the defendant, who had purchased this land from Ball.  The bill sought to set aside this conveyance, and also the grant which the Crown had granted to Ball absolutely, and that Ball should be decreed to convey to the infants.  It appeared from the bill that Samuel Deering held this land under a lease from the Crown for twenty-one years, and that it was leasehold property when he died in 1827.  The bill further stated that no probate of this will had been taken out, nor had administration been granted to any one, the bill alleging that the devisee and executor, Ball, had been cited to prove the bill, but that he had never done so.

His Honor was of opinion that until probate or administration had been granted, there was no one before the Court who could claim the property in dispute, which was leasehold, and therefore personal property, at the decease of the testator; and he therefore held that the bill must be dismissed.  The plaintiffs' counsel then moved that the bill should be retained for one month, to enable the plaintiffs to file a supplemental bill, which His Honor was pleased to grant, on payment of costs of the day to the defendant.

Counsel for plaintiffs, Messrs. a'Beckett and Windeyer; for the defendant, Messrs. Stephen and Foster.

Notes

[1] See also Sydney Gazette, 5 March 1839.

Published by the Division of Law, Macquarie University