//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1974] HCA 55
High Court of Australia
1974-07-01
Jacobs JJ, Luxmoore J
Original judgment source is linked above.
High Court of Australia Menzies, Stephen and Jacobs JJ. Bruyn v Perpetual Trustee Co Ltd [1974] HCA 55
ORDER Appeal No. 1.16 of 1973 allowed. Decretal order of the Supreme Court of New South Wales varied by substituting for the first declaration therein the following declaration, namely, Declare that upon the true construction of the will and codicil of Eva Clara Mitchell and in the events which have happened the children of Ernest Bruyn who survived the said Eva Clara Mitchell are entitled to share in her residuary estate. Appeal No. 119 of 1973 dismissed. Costs of all parties of these appeals to be paid out of the estate, those of the first-named respondent as between solicitor and client.
Sir Douglas Menzies fully participated in the preparation of this judgment and agreed in its conclusions although his death has unfortunately prevented him from taking part in its delivery.
These are two appeals from certain declarations made in the Supreme Court of New South Wales by Street C.J. in Eq. in an originating summons for the construction of the will and codicil of Eva Clara Mitchell, deceased ("the testatrix").
By her will dated 2nd August 1933 the testatrix bequeathed the residue of her estate to her husband for life and directed that after his death the residue " be divided in equal shares among the survivors of the following named nieces and nephews: Three Children of Mrs. Perry, Percy and William Sommerville, Florence Rooke, Walter John Rooke, Joan Hirschberg, W. Bruyn, Maud Beatrice Bruyn, Eva Bruyn, and Dorothy Bruyn".
On 21st May 1948 the testatrix executed a codicil to her will that provided, inter alia, "I wish to include the children of George Rooke and Ernest Bruyn in the disposition of my residue referred to in the will" At the date of the codicil George Rooke and Ernest Bruyn, both nephews of the testatrix, were living. They each had children living at that date. The testatrix died on 27th September 1969. Ernest Bruyn had predeceased her in 1968.
The question arising on the first appeal is whether the phrase "The children of George Rooke and Ernest Bruyn" refers to the children of both nephews or to the children of George Rooke and to the individual Ernest Bruyn. Street C.J. in Eq. decided in favour of the latter construction and held that the children of Ernest Bruyn were not entitled to share in the residuary estate. From that decision the three children of Ernest Bruyn now appeal.
The learned Chief Judge in Equity, although recognizing that he was not bound by certain modern English cases, did regard what was said in three such cases as establishing a presently settled practice in England that a gift to be equally divided between the children of A and B is, prima facie, a gift in equal shares to the individual B and the children of A. His Honour as a judge of first instance gave effect to what he regarded as a somewhat arbitrary but nevertheless well-established rule having regard, of course, to the advantage of certainty in the law. This is despite the fact that his " first impression, uninstructed by reference to authority, was to regard the gift in the codicil as extending to the children of George Rooke and the children of Ernest Bruyn".
The question for this Court is whether we should adopt the apparently current English rule, for, notwithstanding the arguments of counsel for the appellants, we do not find anything in the will itself or the circumstances of the family which would rebut the prima facie rule, if it be accepted.
It is argued for the respondents that the phrase "to the children of A and B" has the prima facie legal meaning "to B and the children of A". The proper approach of the Court of construction in such a case, it is urged, is to apply this prima facie meaning unless there is some indication of an intention to give the words the alternative meaning, the children of A and the children of B. The existence of such a prima facie rule is supported by certain English authority. Luxmoore J. in In re Dale stated [1] :
In my judgment the result of the authorities seems to be that in the absence of any context or surrounding circumstances, a gift to the children of A and B should be construed as a gift to the individual B and the children of A. He was, however, reluctant to accept it and he stated immediately after the passage which we have quoted: But it is worthy of note that even in the cases where the strict rule of construction has been recognized, it has been adopted in particular circumstances which themselves admit of no doubt but that the strict construction was in complete accordance with the context and the intention of the testator. I think it is fair to say that either phrase may be ambiguous and that the ambiguity which necessarily arises from the context or surrounding circumstances, is to be solved by that context or by those circumstances. Nevertheless, the prima facie rule was regarded as firmly established by Maugham J. in In re Cossentine [2] and particularly by Danckwerts J. in In re Birkett [3] . However, in the three cases there was a context and there were circumstances which finally determined the construction of the various provisions. 1. [1931] 1 Ch. 357, at p. 367. 2. [1933] 1 Ch. 119. 3. [1950] 1 Ch. 330.
On the other hand, in In re Murray [4] Joske J. obiter expressed the view that there was no such prima facie rule of construction. We do not think that there can be such a prima facie rule unless the construction which the rule would enunciate is the only correct grammatical construction of the phrase. Unless the context or the circumstances indicate otherwise the grammatical construction should prevail. But if there is more than one correct grammatical construction that one is to be preferred which conforms with current usage. In 1786 in Lugar v. Harman [5] , it was said that the words "to the children of A and B" have a plain grammatical sense meaning "to B and the children of A". The same reliance was placed on the grammatical sense by Jessel M.R. in Hawes v. Hawes [6] , by Kay J. in In re Featherstone's Trusts [7] and by Joyce J. in In re Walbran [8] . This was the line of authority to which Luxmoore J. referred in In re Dale [9] but he referred also to In re Harper [10] where Sargant J. expressed the view that the construction of a gift to the children of A and B as a gift to the children of A and of B or as a gift to the children of A and to B was not more grammatical in one case than the other. It seems to us that Luxmoore J. adopted that view despite his reference to the "result of the authorities".
Whatever may have been current usage in past centuries, it cannot now be said that the strict grammatical construction leads to the interpretation "to B and the children of A". In our opinion current usage is against the repetition of the preposition "of" in the context now being considered. This is recognized in Fowler's Modern English Usage, 2nd ed. (1965) where he refers to needless repetition of "of" and says that it is not a matter of grammar but of style and lucidity, and that in style the second "of" is heavy.
Once it is established that the question is not one of grammar but of style and lucidity then it is proper to lean rather towards the current usage which would omit the second "of" than to a style which may have been current in the past but is no longer so. It is worthwhile to recall the words of Viscount Simon L.C. in Perrin v. Morgan [11] :
It seems to me a little unfortunate that so many of such cases should find their way into the books, for in most instances, the duty of a judge who is called on to interpret a will containing ordinary English words is not to regard previous decisions as constituting a sort of legal dictionary to be consulted and remorselessly applied whatever the testator may have intended, but to construe the particular document so as to arrive at the testator's real meaning according to its actual language and circumstances. 1. [1943] A.C. 399, at p. 408.
It is our opinion that notwithstanding the weight of persuasive authority in favour of such a prima facie rule we should not be persuaded that the words "I wish to include the children of George Rooke and Ernest Bruyn in the disposition of my residue" are more apt to mean Ernest Bruyn and the children of George Rooke than the children of George Rooke and of Ernest Bruyn. In the light of current English usage we have little doubt that when the testator said to the "children of George Rooke and Ernest Bruyn" she meant to the children of both George Rooke and Ernest Bruyn. We regard it as ordinary practice not to repeat the preposition "of" twice in such a sentence as that under consideration. If someone were to say "I did enjoy seeing the children of X and Y" - Y and X not being the father and mother - we would understand that a group of children was being described, that is the children of X and the children of Y. A result that would most easily have been achieved by reversing the order actually adopted by the framer of the sentence by putting first the name of the individual to be benefited - if that were intended - seems to us to require more justification, as a matter of construction, than merely to rely on the fact that the word "of" had not been repeated. It is perhaps worth observing that in the provision under discussion the choice between the preposition "of" and the preposition "to" before "Ernest Bruyn" does not arise. The terms of the gift of residue in the will preclude the implication of the preposition "to".
Reading the testatrix's testamentary disposition as one who runs may read, we regard it as probable that she intended to extend her bounty to the children of Ernest Bruyn rather than to Ernest Bruyn himself and we would so construe the will.
For these reasons we would allow the appeal, set aside the first declaration in the order of Street C.J. in Eq. and in lieu thereof declare that upon the true construction of the will and codicil of Eva Clara Mitchell and in the events which have happened the children of Ernest Bruyn who survived the testatrix are entitled to share in her residuary estate.
The second appeal also relates to the residuary clause and codicil. Street C.J. in Eq. held that the residue of the estate should be divided per capita and not per stirpes. That is to say, it was decided that each child of George Rooke, and now by our decision on the first appeal that each child of Ernest Bruyn, should take a share of the residue equal to the share to which each named niece and nephew was entitled. From that decision three of the named nieces and nephews now appeal and argue that the children of George Rooke should be entitled to a stirpital share only of the residue. If the submissions of the nephews and nieces are successful the children of Ernest Bruyn will also receive only one stirpital share of the residue.
It was held by Street C.J. in Eq. that there was a prima facie grammatical construction which resulted in the shares of the children of George Rooke being taken per capita. The approach of the courts has been stated by Dixon J. (as he then was) in Sumpton v. Downing [12] , in a passage quoted with approval by the Court in King v. Perpetual Trustee Co. (Ltd.) [13] :
Prima facie, under a gift to the children of named persons as a class, the children take per capita and not per stirpes. It has been said that no man who was guided only by a knowledge of English speech would suppose that a direction to distribute money between the children of A and of B equally would mean anything but a division in which each child took a share equal with that of every other child, whether his parent was A or B. The grammatical sense of the words is thus applied unless the context of the will or the surrounding circumstances indicate a different meaning. 1. (1947) 75 C.L.R. 76, at p. 87. 2. (1955) 94 C.L.R. 70, at p. 79.
We are unable to find anything in the will itself or in the surrounding circumstances which would indicate that the testatrix intended any meaning other than that derived from the ordinary meaning of the words. No assistance can be got by the appellants from the use of the expression "the children of George Rooke and Ernest Bruyn" rather than a description of each beneficiary by name. It is impossible to regard the expression as being anything more than a method of describing the beneficiaries; indeed, the testatrix had in the will used the words "three children of Mrs. Perry" to describe "named nieces and nephews".
The argument for the appellants was based on the fact that by the codicil distribution of residue becomes one between beneficiaries of different generations in family relationship, since the testatrix bequeathed her residuary estate to nephews and nieces in her will and later by a codicil included the children of two other nephews in the disposition of the residue. Relying on the fact that in this family distribution the beneficiaries under the codicil are one generation removed from the beneficiaries under the original will the appellants submit that an intention to give stirpital shares can be ascertained. But something more than the fact that the testamentary instruments provide for a distribution among different generations of a family is needed in order to displace the grammatical meaning of the words. Every decision turns on the particular language used and the particular circumstances of the testator or testatrix, but the mere fact that the beneficiaries are here of different generations is not sufficient, by itself, to indicate an intention on the part of the testatrix to divide the residue per stirpes rather than per capita. Therefore this appeal fails and is dismissed.
[The Right Honourable Mr. Justice Menzies died before judgment was delivered in this case.]
Bruyn
Perpetual Trustee Co Ltd