Dawson v Perpetual Trustee Co

The testator, who died on 6th August 1932, left personal property in England, Australia and New Zealand and some real property in New Zealand. He possessed also a villa at Monte Carlo together with some household furniture and effects. By his will he appointed his three sons and the Perpetual Trustee Co. (Ltd.) (which is the plaintiff-respondent), calling them his colonial trustees, to be his executor (sic.) to administer his real and personal estate in Australia. He appointed his three sons, without the plaintiff trustee company, to be his "executor" to administer his real and personal estate in New Zealand and his three sons (calling them his English trustees) to be his "English Executor" to administer all his personal estate in Great Britain. He attached no particular designation to his three sons in appointing them his executor(s) to administer his real and personal estate in New Zealand. No appointment was made of a personal representative for the Principality of Monaco to deal with his villa and effects at Monte Carlo. The will proceeded to devise and bequeath all his property, including that in the Principality of Monaco, but excepting that in Australia and New Zealand, to his English trustees and to devise and bequeath his property in Australia and New Zealand to his "Colonial Trustees in Australia and New Zealand", a description which Roper C.J. in Eq. has held to mean the plaintiff Perpetual Trustee Co. (Ltd.) and the three sons. The names of the three sons are respectively Percy, Stuart and Norman. Norman died in England shortly after the making of the decree for administration, having before his death been declared bankrupt. Percy died on 5th January 1947. Stuart, who is the survivor, was declared bankrupt before the commencement of the suit. Probate of the will was granted by the Supreme Court of New South Wales to the plaintiff trustee company and to Percy, leave being reserved to Stuart and to Norman to come in. It seems that Stuart has done so since the suit. He is the now appellant. The Perpetual Trustee Co. (Ltd.) when they instituted the suit named Percy and Stuart as defendants. Other parties have since been added. The plaintiff company complained that Percy had dealt with assets of the estate without reference to the company and, for his own advantage, had in effect excluded the company from the proper exercise of its duties in the administration of the estate and had committed breaches of trust. There were no direct charges against Stuart but it was alleged in effect that Percy had availed himself of the control, obtained in consequence of his position, over a company to cause large advances to be made to Stuart as well as to Norman and himself. The relief sought was a decree for the administration of the real and personal estate of the testator under the direction of the Court, accounts and inquiries, certain specific orders and the removal of Percy from his position as one of the colonial trustees.

The suit was heard by Roper C.J. in Eq., who did not remove Percy from his position as a colonial trustee but otherwise made a decree of the description sought by the plaintiff trustee company. The decree declared that the real and personal estate of the testator ought to be administered by and under the direction of the court and ordered accordingly. It ordered an inquiry as to assets in Australia, an account of the assets coming to the hands of the plaintiff trustee company and Percy or either of them, an account of the testator's debts in Australia, an account of the funeral, testamentary expenses and duties payable in connection with the estate in Australia, various accounts and inquiries with reference to annuitants and legatees, the payment of annuities, and of the amounts owing to two companies and finally the inquiry replaced by the order under appeal. It was expressed as an inquiry as to whether the executors should take any and if so what steps to get in the proceeds of the testator's estate in New Zealand, England and Monaco.

Difficulties arose in making this inquiry because of the use of the word "executors" and of the word "proceeds". Consequently the plaintiff trustee company moved before Roper C.J. in Eq. for an order somewhat differently expressed. Upon the motion his Honour ordered that in lieu of the inquiry directed by the decree it be referred to the Master in Equity to conduct the following inquiry, namely, an inquiry as to whether the plaintiff company and Stuart Stewart Dawson as trustees of the will and codicil of the testator should take any and if so what steps to get in the testator's estate in New Zealand, England and Monaco.

The appeal against this order is based on two grounds. The first is that under the will the plaintiff trustee company has, as the appellant asserts, nothing to do with the New Zealand assets of the estate nor for that matter with the English assets or those situated in Monaco. No order, therefore, could or should be made at the plaintiff's suit in reference to such assets. The second ground is that even supposing that the plaintiff trustee company is a trustee of the New Zealand assets, an administration by the Supreme Court of New South Wales does not extend to such assets, does not extend to movables and still less to immovables: no inquiry should be ordered where no substantive order could follow.

The first of these two grounds the appellant finds in a construction which he places upon the will. His contention is that the plaintiff trustee company does not take as one of the trustees under the devise and bequest to the testator's colonial trustees in Australia and New Zealand. True it is that "my Colonial Trustees" is a defined expression and that by the definition the persons called "my Colonial Trustees" are the three sons of the testator (Percy, Stuart and Norman) and the Perpetual Trustee Co. (Ltd.) of Australia. But the expression used by the devise and bequest in question is not "my Colonial Trustees" simpliciter but "my Colonial Trustees in Australia and New Zealand". The addition of the words "in Australia and New Zealand" according to the appellant's contention rob the expression of the operation ascribed to it by the definition of comprising all four of the colonial trustees and lead to the exclusion of the trustee company or alternatively the exclusion of the trustee company in relation to the New Zealand assets. The provision is in the following form: - "I devise and bequeath to my Colonial Trustees in Australia and New Zealand all my real and personal estate and effects situate and being at the time of my death in New South Wales, Victoria, Western Australia and Queensland and elsewhere in the Commonwealth of Australia and in New Zealand". It might be thought that there could be only one way of ascertaining who are the colonial trustees for the purpose of this clause and that is to turn to the place where they are named and the reader is instructed that they are "hereinafter called my Colonial Trustees". But the appellant attempts to meet this simple view by pointing to the fact that the will separately appoints executors to administer the real and personal estate in Australia, in New Zealand and in Great Britain and to the further fact that the plaintiff trustee company is joined with the three sons in the first executorship and not in the second and third. In this an incompatibility is seen with a choice of the trustee company as one of the trustees of the New Zealand assets. The appellant deftly removes the incompatibility by applying the definition, not as denoting all the persons comprised therein collectively, but sub modo as referring only to so many of them as fit the case. Thus the words "I devise and bequeath to my Colonial Trustees in Australia and New Zealand" is read as meaning that he devises and bequeaths his property to such of the persons falling within the definition of colonial trustees as are concerned with both Australia and New Zealand, that is to say, the three sons. Thus the plaintiff trustee company is not included in the operation of the devise and bequest because it is not concerned with New Zealand. The testator intended, so the appellant says, to join the trustee company with his three sons in the executorial duties in relation to his Australian property but not otherwise and in particular not as trustees. If in fact the testator were pursuing this strange policy it is curious that he should, as an examination of the trusts or directions which follow will show he did, commit expressly to the persons to whom he devises and bequeaths his Australian and New Zealand property under the description of "my Colonial Trustees in Australia and New Zealand", such characteristically executorial duties as the collection of debts and choses in action, the payment of debts owing by him in Australia and New Zealand at his death and the payment of his funeral expenses. An alternative reading of the bequest and devise calculated to support the appeal was submitted. It makes the expression "my Colonial Trustees in Australia and New Zealand" apply referentially or alternately to the plaintiff trustee company and the three sons as one group in the case of the Australian estate and to the three sons as another group in the case of the New Zealand estate. If this is right the testator certainly provided an example of weasel words.

The fact is that the will is drawn somewhat inartistically and perhaps even confusedly in relation to the duties of the three groups of executors and the two groups of trustees, English and colonial. But the purpose is plain enough. The greatest part of the testator's property was in Australia. But that in New Zealand was important and that in England and Monaco was by no means inconsiderable apart from the liabilities with which the English estate was saddled. The English estate was vested in the English trustees but they were to remit to the colonial trustees the net proceeds of realization after discharging liabilities. If the funds in the hands of the English trustees were insufficient for the purpose of carrying out the duties and trust imposed on them, the colonial trustees were to remit to them what was required. In the case of the colonial estate there was a trust for conversion as in the case of the English estate but there was full power conferred to retain the estate in the form of investments in which the testator left it. He expressed a wish that the shares in various companies in England, Australia and New Zealand, bearing his name, should not be sold except in the last resort. It is evident that he contemplated the trusts of his will continuing for some time. Throughout the will his estate is clearly divided into the English estate and the colonial estate. The distinction between his English trustees on the one side and his colonial trustees on the other is drawn with consistency and firmness. But while his English trustees are his English executors and his colonial trustees are his Australian executors, the latter are not his New Zealand executors. Why is a matter of speculation. It may have been because the English solicitors who drew his will doubted the qualification of an Australian trustee company to obtain probate in New Zealand. It may have been a fanciful or a substantial reason. But it would be absurd to suppose that every reference to his colonial trustees was made in a sense excluding the trustee company from the trusts so far as they covered the New Zealand estate. For example there is an express direction to the colonial trustees under that name simpliciter to hold upon certain trusts moities of a share that must comprise New Zealand as well as other assets. Another provision empowers "my English Trustees and my Colonial Trustees" to lease land in Great Britain or Australia and New Zealand. Repeatedly the English and the colonial estate is contrasted: repeatedly the colonial trustees and the English trustees differentiated.

The decision of Roper C.J. in Eq. that the plaintiff trustee company is one of the trustees of the New Zealand as well as the Australian estate is clearly right.

The second ground upon which the appeal is supported denies the propriety of an inquiry by the Supreme Court of New South Wales into the question whether the plaintiff trustee company and the appellant Stuart Stewart Dawson should take any and what steps to get in the testator's estate in New Zealand. Little if anything was said about the inclusion of the estate in England and Monaco. No doubt the duty of the English trustees to remit the net proceeds of realization was considered enough to support the direction for an inquiry as to what should be done about getting in those assets.

This ground of appeal assumes, of course, that the plaintiff company as well as the appellant is a trustee of the New Zealand estate. It would perhaps be enough to say that as the plaintiff and the appellant are within the jurisdiction of the Court and the administration of the estate under the direction of the Court is proceeding the assumption itself destroys the ground of appeal.

But the appellant invokes some other elements. First he points out that there is no information about the domicile of the testator. This cannot therefore be considered an administration of the forum domicilii to which other administrations would be ancillary. Moreover there are immovables in New Zealand. Then the grant of probate in New South Wales, although it is not in evidence, must be taken to follow the will and be a grant to the plaintiff company and (in the events that have happened) to the appellant limited to the Australian estate. It is to be assumed that the will is proved in New Zealand and that the appellant Stuart is executor, although there is nothing to show it. There is nothing, it is said, to show that the executorial duties in New Zealand have been completed. It may be remarked that there is nothing to show the contrary and it is twenty-one years since the testator died. However, on the basis of these considerations the argument for the appellant disputes the application of such cases as Stirling-Maxwell v. Cartwright [1] ; In re Orr-Ewing [2] and in the House of Lords the same case as Ewing v. Orr-Ewing [3] . It is true that there is no information about the testator's domicile, but one thing seems to be quite certain about it. He was not domiciled at the time of his death in New Zealand. What the state of facts is concerning the assets in New Zealand does not appear. It is a matter that will be elucidated during the inquiry. If an administration of the New Zealand estate under the direction of the Court is found desirable, it may be either necessary or expedient for the plaintiff trustee company to resort to the jurisdiction of the Supreme Court of New Zealand. That again is a matter that will be covered by the inquiry.

1. (1879) 11 Ch. D. 522. 2. (1882) 22 Ch. D. 456. 3. (1883) 9 App. Cas. 34.

But the Supreme Court of New South Wales has before it a trustee, the defendant appellant Stuart Stewart Dawson, who under a single trust is a trustee of assets in New Zealand and in New South Wales and elsewhere in Australia. The defendant appellant is personally amenable to the jurisdiction of the New South Wales Court and is party to a suit in which a decree for administration has been made at the suit of his co-trustee. It is said that the decree is based on a suit framed as an executor's proceeding and not for the administration of the trusts. The distinction is untenable. The plaintiff in the suit made no such distinction and the decree is for general administration.

What will be the outcome of the inquiry perhaps the parties can foresee better than the Court. Indeed the vigour of the resistance to the inquiry suggests it. But at least the Court has jurisdiction by remedies in personam to protect the trust property if need be although it may be in New Zealand. If by any chance the facts which the Master reports show that the Supreme Court of New South Wales is forum non conveniens, doubtless that Court will then act accordingly: cf. Jubert v. Church Commissioners for England [4] .