Crane v Crane

[1949] HCA 52

High Court of Australia|1949-07-01|Before: McTiernan JJ

At a glance

AI case summary

Result

appellant. Appeal dismissed. Costs of all parties to the appeal out of the estate; those of the trustees as between solicitor and client.

Key principles

The rule in Andrews v Partington (1791) 3 Bro CC 401 applies to fix the class of beneficiaries when the first member of the class attains the specified age (21 years) or fulfils...
The rule in Andrews v Partington is a rule of convenience designed to enable members of a class who have qualified (attained vested interests in possession) to enter immediately...
The rule in Andrews v Partington will be excluded only where the will expresses an intention inconsistent with the idea of the first qualifying member calling for their share...
A direction to pay income for maintenance, education and support 'during their respective minorities' does not require the whole income of the fund to be applied for the benefit...

Issues before the court

Whether the rule in Andrews v Partington applies to fix the class of beneficiaries under the residuary gift when the first child attained 21,...
Whether the maintenance provision (income for education, maintenance and support during respective minorities) excludes the rule in Andrews v...

Plain English Summary

This case concerned a will that left money to the children of the testator's brother, to be held in trust until each child turned 21 (or married under that age if female), at which point they would become absolutely entitled to their share. When the eldest child turned 21, the testator's brother remarried and had another child (the appellant). The question was whether this later-born child could share in the gift. The High Court applied the 'rule in Andrews v Partington', which provides that for gifts to a class of children postponed until they reach a certain age, the class closes when the first child reaches that age. This rule allows children who have qualified to receive their shares immediately, rather than waiting until it is certain no more children will be born. The Court found that neither the provision for maintenance during minority, nor the power to advance 'vested or presumptive' shares, nor the substitutional gift provision, showed an intention that the fund should be kept together after children turned 21. Therefore, the class closed when the eldest turned 21, and the later-born appellant was excluded. The Court also declined to rule on what happened to the share of a daughter who died before 21, as the appellant had no interest in this question once he was excluded from the class.

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Judgment (28 paragraphs)

[1]

[9]

This appeal concerns the ascertainment of the objects of a class gift. It is the gift of residue contained in the will of Arthur Crane, who died on 30th March 1932. His last will was made two years before his death. Among other relatives he left a brother named George Joseph Crane him surviving. The class gift in question is a residuary bequest of corpus in favour of the children of George Joseph Crane attaining twenty-one or being daughters marrying under that age. At the date of the will and at the date of the death of the testator his brother George Joseph was a widower with three young children, - Gordon Jack born 20th June 1918, Marjorie Jean born 2nd November 1921 and Ronald Arthur born 24th February 1929. Gordon Jack became twenty-one on 20th June 1939 and Napier C.J. has decided that when this happened the class closed, so that no children of George Joseph born after that date could be objects of the class gift. In fact George Joseph re-married and by his second marriage he had issue William Clement born on 9th July 1942. William Clement Crane now appeals from the decision excluding him from participation. A further question was decided by Napier C.J. The will contains a provision for the case of legacies or shares lapsing. The lapsed legacy or share is to vest in the testator's two brothers George Joseph and Charles Samuel in equal shares. George Joseph's daughter Marjorie Jean died on 11th October 1941 in her twentieth year. Napier C.J. decided that her death caused a lapse upon which the provision operated. Thus the consequence of her death was not that the shares of the other members of the class were increased but that her share passed to the testator's two brothers. The appellant William Clement also attacks this decision. But his interest in the question arises only if he succeeds upon the first question and makes good his claim to be included within the class as one of the objects of the gift. In my opinion he fails in making good this claim. I agree in the decision of Napier C.J. that the class closed on the eldest child of George Joseph Crane reaching the age of twenty-one, so that no child born thereafter could be an object of the gift, and I agree in the reasons which his Honour gave for that decision.

[11]

The purpose of the rule is to enable those members of a class who have qualified so that they have an interest vested in possession to enter at once into enjoyment of their shares. This could not be done if the class were kept open so long as it were possible that other children might be born and become members. As long as the parent lived the class might be increased by the birth of further children and the share of existing children diminished accordingly. As the share would thus be unascertainable and the minimum amount even could not be fixed no payment could be made, until the parent died, to those whose interests were otherwise vested in possession. To avoid this consequence a construction is given to such bequests which will make further accession to the class impossible once the conditions have been satisfied giving any child a share vested in possession. Until this event children are let in and by their number the minimum share is fixed which each will take. But, by the death of any of them before qualifying for a vested interest by attaining the given age or satisfying the conditions attached to the gift, the size of the proportionate share may afterwards be enlarged. "The rule of the court has gone upon an anxiety to provide for as many children as possible with convenience. Therefore any coming in esse before a determinate share becomes distributable to anyone is included" (per Lord Eldon, Barrington v. Tristram [1] ). It would be highly inconvenient if there were no such principle of construction and the shares of children were left unascertainable throughout the whole life of their parent because of the possibility of accession to the class by future births. It is a rule of convenience. But, it has been repeatedly pointed out, the rule resolves an inconsistency of intention disclosed by the testator's dispositions. He intends that every child who attains the given age shall have his share but he intends that he shall have it before, on the literal words of the limitation, it is possible to ascertain the objects who fall within the class. "You must either sacrifice the direction that gives a right to distribution at twenty-one or sacrifice the intention that all the children shall take. The court has in such cases decided in favour of the eldest child taking at twenty-one as the will directs, and sacrificed the intention that children shall take" (per Wigram V.C., Mainwaring v. Beevor [2] ). "When the rule is adopted the solution arrived at is the result of an endeavour by the court to reconcile two apparently inconsistent directions, the one that the whole class of children shall take and the other that the fund shall be divided at a moment when the whole class cannot be ascertained" (per Buckley J., In re Stephens; Kilby v. Betts [3] : cf. per Astbury J., In re Chartres [4] ). But the rule cannot be applied if the will expresses an intention which is inconsistent with the idea of the first child who satisfies the conditions attached to the gift calling for his share. Such an inconsistent intention may be found in a provision postponing the distribution of any share until, for example, the youngest child for the time being attains twenty-one. It has been found in maintenance or advancement clauses framed in such a way as to show that the fund was to be kept together notwithstanding that the share or shares of a member or members of the class had vested in possession and maintenance or advancement was to be allowed thereout beyond that period (Bateman v. Gray [1] ; Re Courtenay [2] ).

[13]

The decision of Napier C.J. in the present case is attacked by the appellant on the ground that the provisions of the will contain indications of this character to exclude the application of the rule. In order to understand the matters upon which reliance is placed it is necessary to state somewhat more fully the material provisions of the will. It is enough to begin with the trusts of the residuary trust moneys. The first trust is to pay the income thereof to the guardian or guardians of the children of the testator's brother George Joseph Crane for their education maintenance and support during their respective minorities. Next comes a trust "from and after the son or sons of the said George Joseph Crane respectively attaining the age of twenty-one years and the daughter or daughters of the said George Joseph Crane respectively attaining that age or marrying under that age in trust for them absolutely share and share alike." It is convenient to state at this point the use which the appellant makes of these provisions. It is not denied on his behalf that if the trust of corpus stood alone it would be governed by the rule. Nor could it be denied. For the words "from and after" combining as they do with the word "respectively" make it clear that as each child attained twenty-one or, being a daughter, married under that age, he or she became absolutely entitled to an equal share. Unless the rule were applied it would be necessary to postpone until the death of George Joseph Crane the ascertainment of the persons to take and the enjoyment of the gift by all of them would be deferred till that event. In other words it is an ordinary instance of the need of the rule of convenience to resolve the apparent inconsistency of the intentions of the will. What the appellant does say is that the earlier or first trust for the payment of income to the guardians of the children for their education maintenance and support means that the whole income, that is the income from the whole fund, must be devoted to that purpose so long as there was any child under twenty-one and, I suppose, so long as there was a possibility of a child coming into being. If this were right it would found an inference that no distribution was to be made until the youngest child of George Joseph came of age and so rebut the conclusion that as each child attained full age or, if a daughter married sooner, he or she was to become absolutely entitled to a share for which he or she might call. But in my opinion it is not the correct interpretation of the trust. The application of the income for the education, maintenance and support of any child is to stop at the end of that child's minority. So much is made clear by the words "respective minorities." Then ensues the trust of corpus which is to arise from and after the very event. The intention appears to me to be clear that income for the maintenance, education and support of each child should cease and his absolute right to his share of corpus should arise as and when he came of age. It would be a slavish literalness to give the words "the income thereof" a meaning which would demand the application of the income of the whole fund to one child, for example, the older children having attained twenty-one, so that in the meantime they received neither income nor corpus.

[23]

The second decision of Lord Romilly relied upon is Bateman v. Gray [1] . The will in that case directed an appropriation or residue to answer annuities and subject thereto divided the fund into two moieties. A life interest in one moiety was bequeathed to the testator's sister. There was then a trust of both moieties to a class of children of one nephew and two nieces "now born or hereafter to be born who shall attain the age of twenty-one." The trust was immediately followed by a discretionary trust to apply the income arising from the presumptive share or respective shares of every or any such child for the maintenance or education of the child, the unapplied portion to be accumulated. There was then an advancement clause authorizing the application of any part not exceeding "one-half of the capital of the vested or presumptive share or respective shares of any child or children of my said nephew or nieces for his her or their advancement in life." The question whether the class of children to take was ascertained or closed when the eldest of the children attained twenty-one came before the Master of the Rolls first in 1861. The learned judge then decided, so far as the report shows without stating his reasons, that the class was fixed and ascertained when the eldest attained twenty-one: Bateman v. Gray [1] . But in 1865 after the eldest child had attained twenty-one another child was born and on behalf of that child a petition for rehearing was presented. Lord Romilly then reversed his previous decision [2] . He is reported as saying only that the word "vested" was very strong and he did not see how in the face of it the declaration he had made could be supported. It seems to have been a case where first thoughts were best. For, although the provisions of the will were perhaps not entirely favourable to the application of the rule, there do not appear to have been sufficient indications to the contrary to exclude the rule either in the composite description of the class, or the general tenor of the maintenance clause or the specific reference to "vested" in the maintenance clause. In Gimblett v. Purton [3] , Malins V.C. said that the rule "ought not to be frittered down by such a decision as that in Bateman v. Gray [2] where the rule is evaded because there was a power of advancement to children out of vested shares." After a reference, not a very favourable reference, to Iredell v. Iredell [4] , which he distinguished, the Vice-Chancellor said: - " even if there were a clause for advancement similar to that which is found in Bateman v. Gray [2] I should have declined to follow the decision of the Master of the Rolls in that case, as it tends to throw a doubt upon a rule which is as well settled as any rule of interpretation in the courts."

Crane v Crane

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Judgment (28 paragraphs)

Cited legislation

Parties

Cases Cited (1)

AI Analysis