Aires Trustees fr v ¢

Aires Trustees fr v ¢ - [1916] HCA 31 - HCA 1916 case summary — Zoe

[29]

of three calendar months next after her so marrying and to accrue from day to day so that and to the intent that she shall be entitled thereto and to a proportionate part thereof to and inclusive of the day of her death And I devise the same several annual sums of £3,000 and £1,000 to her as two several and I declare that the same several sums of £3,000 and £1,000 shall be two several yearly rent-charges charged upon and issuing out of my freehold lands and buildings in and near Elizabeth Street in the City of Melbourne in the Colony of Victoria and all lands tenements and hereditaments of mine to which I shall be entitled at the time of my death freehold or otherwise in the said City of Melbourne and in on or near the City Road in the City of South Melbourne in the Colony of Victoria and elsewhere in the same Colony of Victoria and elsewhere wherever and to be respectively paid quarterly as aforesaid and a proportionate part of each of the same rent-charges to be paid to and inclusive of the last day of her widowhood and the day of her death respectively I empower my said wife by distress and also by entry upon and perception of the rents and profits of my said hereditaments so charged as aforesaid to recover payment of the said rent-charges respectively whenever in arrear for twenty-one days . . . I direct the trustees or trustee for the time being of this my will to set apart and appro- priate with all convenient speed after my death enough of my said _residuary personal estate property and effects to constitute a sufficient fund for and as much more than shall be enough of the said residuary personal estate property and effects as the trustees or trustee for the time being of this my will shall in their his or her absolute discretion think fit to constitute and also as much more than shall be enough of the said residuary personal estate property and effects as my said wife shall require them him or her to set aside and appropriate to constitute the same fund for answering

[30]

the said several annuities of £3,000 a year and £1,000 a year to my said wife either in and with the aid or without the aid of all or any part or parts of the rents and profits of all or any of the free- hold lands and tenements which shall be mine or to which I shall be entitled at the time of my death and to provide against the case of the same rents and profits not being punctually or fully paid or issuing By separating setting apart and appropriating any of the securities or other property at the time of the same appropriation forming part of my said trust estate and applying them or it and the income thereof to answering the said two several annuities to my said wife and to that purpose only and exclusively of every other purpose And also by investing money in the purchase in the names or name of the trustees or trustee for the time being of my will of some one or more kinds of the securities hereinbefore described in the general power of investment clause of this my will and applying the securities so purchased and the income thereof to answering the said two several annuities to my said wife and to that purpose only and exclusively of every other purpose Provided always and I declare that neither the lands tenements and heredita- ments nor any other part of my said trust estate real and personal shall be exonerated from the said two several annuities and rent- charges of £3,000 a year and £1,000 a year respectively by such appropriations or otherwise unless my said wife shall and that it shall be necessary for the exoneration of my said trust estate real and personal or any part of it from the same annuities and rent-charges or any part or parts of them that my said wife shall at the very time or after the time of the making of the same appropriation expressly and as the case may be entirely or only partially discharge by sufficient assurance or other act the said lands tenements and hereditaments from the said rent-charges by this my will created and all other parts of my said trust estate from the same two several annuities of £3,000 a year and £1,000 a year respectively I declare that for or towards payment and satisfaction of the same annuities it shall be lawful for the trustees or trustee for the time being of this my will to resort to raise money from on or out of and apply and my said wife shall have the right and be entitled to resort to and recover from or out of the corpus of the property or funds so

[50]

But see. 32 provides that "a mortgagee, or other person owning any estate or interest in land by way of security for money, shall not be liable to land tax in respect of that mortgage, estate, or interest." The section contains a proviso to which it is immaterial to refer. The question to my mind is this: Did Mrs. Brooks own that interest in the land as security for money ? Now, the will is worded very curiously. The testator undoubtedly declares that these annual sums given to his widow are given to her as " two several yearly rent-charges," and that they shall be " two several yearly rent- charges " charged upon the land. If those words stood alone I do not think there could be any answer. But the question arises whether the rent-charges come within sec. 32 - in other words, whether, notwithstanding that declaration, they are held by way of security for money. AsI view the matter, that involves this consideration : A thing cannot be security for itself; it must be security for some- thing else. Unless I could find in the will, read as a whole, that the sums of money which are now £2,000 and £500 were given to Mrs. Brooks as personal annuities and that the rent-charges were created as security in order to see that she got those personal annuities, I should decide in favour of the Commissioner. But reading the will as a whole I see that the trustees have power to sell and that the proceeds are to be held " upon trust thereout " - that is, out of the whole proceeds of the estate - " to pay to and I devise and bequeath to my said wife Emma so long as she shall be my widow the annual sum of £3,000 to be paid to her by equal quarterly payments whereof the first shall be made at the expiration of three calendar months next after my death and to accrue and be deemed to accrue from day to day so that and to the intent that she shall be entitled thereto and to a proportionate part thereof to and inclusive of the last day of her widowhood." Then, in case she should marry after his death, he gave her an annuity of £1,000 in

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