Cox v Archer

High Court of Australia|1964-07-01|Before: Owen JJ

High Court of Australia Kitto, Taylor and Owen JJ. Cox v Archer [1964] HCA 18

ORDER Appeal allowed. Order of the Supreme Court varied by omitting the answers therein contained and substituting the answers: To Question 1: Yes; To Question 2: No. Order that the costs of all parties of this appeal be paid out of the respective estates of Emily Jane Cox deceased and Trevor Cox deceased.

The Court delivered the following written judgment: -

In this state of affairs the testator and testatrix executed mutual wills. Each will gave the whole estate to trustees, and after making some specific and pecuniary gifts directed the trustees to stand possessed of the real and personal estate not otherwise disposed of upon trust to sell, call in and convert into money the estate or such part thereof as should not consist of money, and out of the money produced by the sale, calling in and conversion and such personal estate as should consist of money to pay the funeral and testamentary expenses (including duties) and debts and legacies. Then the trustees were directed to stand possessed of the residue of the said moneys (thereinafter called the residuary trust fund) upon trust to invest it and pay the income to the other spouse for life, and from and after his (or her) death upon trust as to the capital and income for the daughter absolutely if (as happened) she should survive the testator (or testatrix).

The trustees were given power to postpone the sale and conversion of the estate for so long as they might think fit. They were authorized to carry on the farming business, and for that purpose to retain any of a variety of chattels including stock and to use in the business any unsold freehold land. They were further authorized to sell to the son, although a trustee of the will, any part of the business and the land, plant, stock, etc., and to lease to him the testator's (or testatrix's) half-share in "Springbanks" at a stated rental.

In each will there was the usual provision that the income to accrue from unsold and unconverted real or personal estate should be paid to the person or persons to whom the money produced by the sale and conversion or the income thereof would for the time being be payable as if the sale and conversion had actually been made. Then, after giving the trustees a power to lease unsold lands, the wills proceeded by means of a proviso to engraft upon the general trust for sale and conversion a special provision as to "Springbanks". It was in these terms: "Provided always that if my son Geoffrey Allan Cox shall survive me my Trustees shall before selling my half-share in the part of the property known as Springbanks which is now retained by me and my said wife (or husband, in the case of the wife's will) to any other person or persons by writing under the hands of my Trustees offer to sell to my son the said Geoffrey Allan Cox his executors or administrators my half-share of Springbanks free of mortgages and all other encumbrances at the sum of Four thousand five hundred pounds". Then followed a provision that if the son or his executors or administrators should neglect to notify the trustees in writing of his or their acceptance within one calendar month after the offer the trustees might proceed with the sale of the half-share of "Springbanks" in the usual way, but that the trustees might extend the period for notifying such acceptance if they should think fit. There was a direction that if the son his executors or administrators should notify his or their acceptance "as aforesaid", then on payment of the purchase money within six months from the date of the acceptance the trustees should convey "Springbanks" to the son his executors or administrators at his or their expense. (The reference at this point was to "Springbanks" and not to a half-share in "Springbanks", presumably because it was assumed that what happened in respect of one half-share would happen in respect of the other also.)

The wife died in 1956 and the husband in 1962. The son and daughter were then both still alive, and they are parties to these proceedings. The trustees, who are the son, the daughter and the daughter's husband, have neither sold the half-shares of "Springbanks" nor offered them to the son in accordance with the provisos in the wills. The half-shares are now worth considerably more than £4,500 each. The son contends that the trustees are bound to offer the half-shares to him under the provisos; but the daughter contends that being entitled to the half-shares absolutely she may take them unconverted, so that no question of the trustees' selling them can ever arise and therefore the situation in which alone the provisos are expressed to take effect can never exist.

The originating summons seeks the resolution of this dispute. It came before Gibson J. Two separate arguments were addressed to his Honour in support of the daughter's contention. The first assumed that the provisos validly operated according to their terms. Upon the death of the husband, it was said, the daughter became solely and absolutely entitled to the residuary trust fund under each will, and therefore, being under no disability, could put an end to the trusts, and in particular put an end to the trust for sale and so prevent the provisos from taking effect. An illustration of the principle within which this argument sought to bring the case may be found in In re Daveron [1] . It is in essence the principle of Saunders v. Vautier [2] .

[1893] 3 Ch. 421. 2. (1841) Cr. & Ph. 240 [ 41 E.R. 482]; (1841) 4 Beav. 115 [49 E.R. 282].

His Honour rejected the argument, and, with respect, he was plainly right. The wills gave the daughter, after the falling in or failure of the life interest of the wife (or husband), the beneficial interest in nothing more, so far as "Springbanks" was concerned, than the fund produced by selling the half-interests to the son at £4,500 each or, if he should not accept an offer at that price within the proper time, by selling the half-interests under the general trusts for sale. The provisos were obviously intended to operate upon the trusts for sale and conversion so as to give the son by way of bounty (see In re Fison's Will Trusts [3] ) a benefit from the following of a particular procedure for the purpose of realization. The daughter's interest in the proceeds, though absolutely vested in possession after her father's death, was inherently subject to the interest of the son to have the prescribed procedure followed. The trusts for conversion were therefore not solely for the benefit of the daughter, and it follows that she could not put an end to them without the son's concurrence: Biggs v. Peacock [4] ; In re Tweedie and Miles [5] . The reason is that the principle of Saunders v. Vautier [2] has no application unless all the persons who have any vested or contingent interest in the property are sui juris and consent: Berry v. Geen [6] .

[1950] Ch. 394, at pp. 404, 405. 2. (1882) 22 Ch. D. 284. 3. (1884) 27 Ch. D. 315. 4. (1841) Cr. & Ph. 240 [ 41 E.R. 482]; (1841) 4 Beav. 115 [49 E.R. 282]. 5. [1938] A.C. 575, at p. 582.

The second contention advanced on behalf of the daughter was that the attempt by means of the provisos to give the son a right of purchase failed by reason of the rule against remoteness of vesting. It was pointed out that the provisos set no limit to the time within which the offers should be made. They might be made after the son's death to his executors or administrators. For all that appears they might be made more than twenty-one years after the son's death. If that should happen and the provisos were to operate according to their terms, the result would be that the half-shares of "Springbanks" would then vest beneficially in the son's executors or administrators. So remote a vesting, it is argued, the rule against perpetuities will not allow.

This contention the learned judge upheld on the authority of London and South Western Railway Co. v. Gomm [1] ; Woodall v. Clifton [2] ; and Kennedy v. Kennedy [3] . The principle of those cases undoubtedly applies unless a limit of time can be assigned to the trusts for sale in the exercise of which the offers are required to be made and the limit satisfies the rule against perpetuities. No such limit is expressed, but in our opinion a sufficient limit is to be implied in accordance with established principles of construction. It is to be remembered that we are considering in the case of each will a trust for sale with a discretionary power of postponement, and not a mere power of sale. The power of postponement was given to the trustees as such and therefore for the purposes of the trusts only; and because that was so the inference arises, there being nothing in the wills to the contrary, that the power was not intended to be exercisable after those purposes should have come to an end, that is to say when all beneficial interests should have become vested in possession in persons sui juris, a situation which arose under both wills at the husband's death. As Chitty J. said in In re Crowther [4] : "When the estate becomes divisible, the power to postpone ceases, and comes to an end of itself" [5] . This accords with general principles as to the construction of provisions conferring machinery powers upon trustees, as exemplified by such cases as Wolley v. Jenkins [6] ; Doncaster v. Doncaster [7] ; In re Cotton's Trustees and School Board for London [8] ; In re Sudeley and Baines & Co. [9] ; In re W. & R. Holmes and Cosmopolitan Press Ltd.'s Contract [10] ; and Re Quigley; Perpetual Trustee Co. v. Quigley [11] . It is of course a question of the intention appearing from the trust instrument, but in the present case there is nothing in the wills to displace the prima facie inference.

(1882) 20 Ch. D. 562. 2. [1905] 2 Ch. 257. 3. [1914] A.C. 215. 4. [1895] 2 Ch. 56. 5. [1895] 2 Ch., at p. 60. 6. (1856) 23 Beav. 53 [53 E.R. 21]. 7. (1856) 3 K. & J. 26, at p. 38 [69 E.R. 1007, at p. 1013]. 8. (1882) 19 Ch. D. 624, at p. 627. 9. [1894] 1 Ch. 334, at p. 339. 10. [1944] Ch. 53. 11. (1908) 8 S.R. (N.S.W.) 124.

It is therefore unnecessary for us, as it was for North J. in In re Smith [12] to consider whether Chitty J. went too far in In re Crowther [4] in regarding the discretion of trustees under a power to postpone sale as subject to no implied limitation of time. It certainly does not extend to an arbitrary postponement for an indefinite period: cf. In re Chancellor; Chancellor v. Brown [13] ; In re Marshall [14] . In the present case the provisions conferring the power do not enter into the question we have to decide.

[1896] 1 Ch. 171, at p. 174. 2. [1895] 2 Ch. 56. 3. (1884) 26 Ch. D. 42. 4. [1914] 1 Ch. 192, at p. 202.

The situation at the death of the wife, then, was that at the end of a life in being (that of the husband) the trust for sale under her will would necessarily cease to be subject to the trustees' power of postponement; and at the death of the husband the trust for sale under his will took effect at once free from the power of postponement, since the life estate he had intended for his wife lapsed by reason of her having predeceased him. A trust for sale for whatever purpose with no special power of postponement must be exercised within a reasonable time. It does not imperatively oblige the trustees to sell at once, or at any precise, definite or particular time; they are entitled to use a reasonable discretion: Lewin on Trusts, 15th ed. (1950) p. 591; Turner v. Buck [1] ; Grayburn v. Clarkson [2] ; but the courts have had no difficulty in holding that where there is a trust for sale unqualified by a power of postponement no one would regard it as within the limits of a reasonable discretion to retain the property unsold for as long as twenty-one years: cf. Peters v. Lewes and East Grinstead Railway Co. [3] . Accordingly it must be held in the present case that the wills obliged the trustees to sell the half-shares of "Springbanks" and therefore to offer them to the son, within a reasonable period after the husband's death, being a period of less than twenty-one years: see Jarman on Wills, 8th ed. (1951) vol. 1, p. 322.

(1874) L.R. 18 Eq. 301. 2. (1868) L.R. 3 Ch. App. 605, at p. 608. 3. (1881) 18 Ch. D. 429, at p. 434.

The only remaining question is whether the son's right to accept the offer, and by so doing to acquire the beneficial title to the half-shares subject to payment of the price fixed in the wills, must of necessity be exercised, if at all, within the same period of twenty-one years. The time primarily prescribed by the wills for notifying acceptance was one calendar month, and clearly that must expire within the period. The trustees were empowered to extend the time, without any limit being expressly set to their discretion in this regard; but we need not consider whether there is to be implied a limit which restrains within perpetuity limits the maximum possible period for acceptance. For if no such limit should be implied it is the power of extension that offends the rule against perpetuities, since it would enable the trustees, if it were valid, to give the son a right, over and above that which the will by itself gave him, to take the half-shares of "Springbanks" at the fixed price, and to do so after the perpetuity period. It is the power of extension, therefore, and not the whole benefit of the proviso, which the rule against remoteness of vesting would destroy if that power should be understood as subject to no limit of time: cf. In re Raphael [1] .

For these reasons we are of opinion that the trustees are under a duty to offer the respective half-shares of "Springbanks" to the son in accordance with the provisos and, in the event of his duly accepting the offer and paying the purchase money within six months from the date of acceptance, to convey and assure the half-interests to him as provided by the wills.

The appeal should be allowed and the order appealed from varied by omitting the answers therein contained and substituting the answers: To Question 1: Yes. To Question 2: No.

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