Fairweather v Fairweather [1944] HCA 11

Fairweather v Fairweather [1944] HCA 11 - HCA 1944 case summary — Zoe

[48]

devise not capable of being increased or decreased. It is a devise as at the date of the testator's death of specific property in existence and with a mortgage on it of one thousand pounds. Prior to and at the date of the first codicil there was not any moratorium legisla- tion in force. The real point at issue is whether the confirmation of a will by a codicil is in effect a redating of the will. Generally speaking, it is correct to say that the effect of republishing a will is to redate the will, but this does not apply to adeemed or lapsed legacies (Halsbury's Laws of England, 2nd ed., vol. 34, pp. 96, 97 ; Theobald on Wills, 9th ed. (1939), p. 143 ; Jarman on Wills, 7th ed. (1930), vol. 1, p. 189). Although its republishing by a codicil makes a will speak as from the date of the codicil in respect of property acquired after the date of the will, it does not so speak for the purpose of reviving a legacy revoked, adeemed or satisfied or, as in this case, where the property has been sold. A codicil only acts upon a will as it existed at the time (Powys v. Mansfield (1); Hopwood v. Hopwood (2); In re Warren; Warren v. Warren (3); Sidney v. Sidney (4); Macdonald vy. Irvine (5) ). Where there is a devise and a subsequent contract, the contract being on foot, and the testator becomes entitled to the purchase money, the words giving the devise are not apt. At the time he made the codicils the testator knew that Birrell Court had been sold and that all he had therein was an interest in the purchase money. In the circumstances there was not any gift either of Birrell Court or of the proceeds of sale. It is obvious that the intention of the testator was that the appellant should buy Birrell Court. Republication does not extend a specific gift to property which upon the true construction that gift was not intended to embrace (Sidney v. Sidney (6); Watts v. Watts (7) ; In re Evans; Evans v. Powell (8); In re Davies ; Scourfield v. Davies (9) ; In re Portal and Lamb (10) ; Read v. Van Brakkel (11) ; Farrar v. Earl of Winterton (12); Stilwell v. Mellersh (13); Mouwnt- cashel v. Smyth (14); Re Moore; Long v. Moore (15); Jarman on Wills, 7th ed. (1930), vol. 1, pp. 188-190; Theobald on Wills, 9th ed. (1939), p. 122). There is no rule of construction to the effect that by republication a testator writes into the codicil everything contained in the will and thereby brings it up to the date of the

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The object of construing a will is to give effect to the intention of the testator as disclosed by the words of the will applied to the relevant facts. In the present case, I find it difficult to have any doubt as to the real intention of the testator. He had three sons. When he made his will he forgave two sons debts which they owed to him, and gave Birrell Court, subject to the £1,000 mortgage, to his other son, Roy. When he made his codicils he should be taken to have known what he had done by the will which he confirmed and what he had subsequently done with respect to Birrell Court. He knew, therefore, that he had changed his mind about giving Birrell Court to Roy subject to the mortgage, and that he had decided not to give it to him, but to sell it to him for £1,500, free of the mortgage. He knew, therefore, that he had taken Birrell Court out of the operation of his will, When he made the codicils Roy owed him money under the contract. It would have been easy to forgive this debt altogether, or less £1,000. But this is just what the testator did not do, though he had forgiven the debts owed by the other two sons. He left the contract and its obligations standing. The words " subject to the mortgage of £1,000 secured thereon" make it impossible for the appellants to contend that the testator intended to devise Birrell Court free of the mortgage, ie., simply to forgive his son Roy his debt under the contract of sale. These words can apply only to Birrell Court as land, and not to the purchase money for Birrell Court, which purchase money was not subject to any mortgage. Accordingly, taking the matter to be decided as that of ascertaining the intention of the testator from the words of the will as applied to circumstances which should be assumed to be known to the testator, I am of opinion that the question of ascer- tainment of intention should be approached in the following way : - The testator dealt with Birrell Court in his will as land subject to a mortgage ; he gave it in his will to his son Roy as land so subject ; he then sold it to that son, contracting to transfer it to him free of the mortgage, thus indicating a complete change of intention ; his . confirmation of his will operated only to confirm the will in so far as the will was operative as a testamentary disposition ; and he did not intend to forgive his son the debt due under the contract. Upon this view of the intention of the testator the decision of Roper J. was right. I proceed to inquire whether there are any rules of law which prevent effect being given to this intention ascertained in the manner stated.

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Roper J. did not omit to point out that the term " ademption" is used in more than one sense. In Powys v. Mansfield (1) the form of ademption which the court had to consider was ademption of a legacy by a subsequent portion, the rule against double portions being applied. In the present case the form of ademption upon which the appellant relies is a different kind of ademption, namely, ademption by the act of a testator in converting realty into personalty after making his will: See, e.g., In re Bagot's Settlement (2); Watts vy. Watts (3). In the argument before this Court it was sought by the respondents to confine the effect of the statement which I have quoted from Powys v. Mansfield (1) to the case of the ademption of a legacy by a portion, so that that case would not be an authority in relation to ademption arising from the act of a testator in selling land which he had devised by a will made before the sale. But Roper J. was of opinion that the principle upon which Powys v. Mansfield (1) was decided was that the legacy in that case (corres- ponding to the devise of the land in the present case) had been removed by the testator himself from the operation of his will so that it formed no part of the will. The same view of what was decided in Powys v. Mansfield (1) was taken by Lord Kingsdown in Hopwood vy. Hopwood (4), where he said: " The principle seems to be, that when a parent has given a portion by a will, and afterwards pays or secures the same portion by a settlement, the legacy is from that moment gone, and the will is to be read as if that bequest had been expunged from it. The language of Lord Cottenham, in Powys vy. Mansfield (1) upon this point is, I think, quite borne out by the cases." The confirmation of the will by the codicil was regarded by Roper J. as confirming only what had been left standing in the will (not what had been " expunged") and, as the devise was no longer standing, the confirmation of the will did not re-institute the devise which had disappeared. I agree with this interpretation of the decision in Powys v. Mansfield (1). In my opinion the point of the decision is that the testator by his own voluntary act dealt with his property in such a way as to adeem a disposition which he had made by his will - to remove that disposition from his will. The principle appears to me to be the same whether the voluntary act of the testator is the payment or covenant to pay (See Hopwood v. Hopwood (5) ) moneys as a portion or any other dealing by him with his property (such as an agreement to sell it) which shows that

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both manifested and carried into effect a clear intention that the devisee was not to have it for nothing after his death, but was to have it at once, although only on the terms of paying for it. Thus, what the codicil confirms is a will containing a reference to land which at the date of the codicil and of his death no longer belonged to him. It cannot operate on the land, and there is nothing in the codicil to suggest an intention on his part to give the purchaser (and former devisee) a gift of an entirely different kind, namely, a right to receive, or to be forgiven, any money to which at his death the testator may be legally entitled in respect of the land. It is some- times said that confirmation by codicil makes the will speak as if it had been re-executed at the date of the codicil; but, although this is a convenient formula, it is neither necessary nor legitimate in all cases and for all purposes to construe the will as if it had been made in all its details at the date of the codicil. As Lord Parker (then Parker J.) put it in In re Park (1): "Ido not think that any of the authorities quoted go to this length, that for all purposes in construing it I must treat the will as having been made at the date of the codicil. A doctrine of that sort would lead to extraordinary results" (2). The principle is not a rigid formula or technical rule, but "a useful and flexible instrument for effectuating a testator's intentions, by ascertaining them down to the latest date at which they have been expressed " (In re Moore (3) ). And it is one of which Lord Cotten- ham cannot be supposed to have been ignorant. In this connection it may be mentioned that although s. 24 of the Wills Act 1837 (Imp.) provides that "' every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will," it has been pointed out that this does not mean that we are to construe whatever a testator says in his will as if it were made on the day of his death (In re Portal and Lamb (4) ).

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In re Wheeler (2) reference was made to there having been a confirma- tory codicil after the date of the notional conversion by operation of law of land specifically devised ; but the position would have been the same if there had been no codicil. The property still remained in specie at the testator's death ; and he had done nothing to alter its actual character, nor had the law: Cf. In re Kemp- thorne (3). Similar questions have arisen where a testator has given a lease with an option to purchase, and the option is exercised after the testator's death. If the lease precedes the will, and the will contains a general devise of all realty and a general bequest of all personalty, the exercise of the option is treated as effecting a conver- sion for the purposes of the will and transferring the interest in the property in question to the beneficiaries of the personalty (Lawes v. Bennett (4)); but if the subsequent will contains a specific devise of the property in question a post-mortem exercise of the option does not divest the devisee's interest (Nicol v. Chant (5); In re Calow; Calow v. Calow (6) ), because the specific reference to the property is a suffi- cient indication that the specific devisee is to have whatever interest in it the testator has not parted with at his death. If the will precedes the lease, and contains a general devise of realty and a general bequest of personalty, the exercise of the option transfers the interest from the general devisee (In re Blake; Gawthorne v. Blake (7) ), and it was held in Weeding v. Weeding (8) that even if the will which precedes the lease specifically devised the property subsequently leased, yet if the option is exercised after the testator's death, the property becomes divested from the devisee and goes to the persons entitled to the personalty. In the latter type of case, the testator, by creating the option to purchase, has not done anything which will necessarily involve the property being outside the scope of the will at his death ; and hence, if the option is not exercised in his lifetime, to treat a subsequent exercise of it as defeating the gift does nothing to effectuate any intention expressed by the testator, but on the other hand defeats the intention expressed by the gift. However, the Court of Appeal in In re Carrington (9) felt constrained to hold that Weeding v. Weeding (8) had stood too long to be overruled ; although Romer L.J. did not conceal his disapproval of it. It is not

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A dozen or more cases were brought to our attention, but it is only necessary, I think, to refer to the case above mentioned and two others. In Goonewardene v. Goonewardene (1) the Judicial Committee stated the effect of the confirmation of a will by means of a codicil in these words: "It is well settled in England that, by virtue of s. 34 of the (English) Wills Act" (s. 4 of the New South Wales Wills Act, and note also s, 21), " the effect of confirming a will by codicil is to bring the will down to the date of the codicil, and to effect the same disposition of the testator's property as would have been effected if the testator had at the date of the codicil made a new will containing the same dispositions as in the original will but with the alterations introduced by the codicil. In the language used by North J. in his judgment in In re Champion (2) the effect is to make a devise in the will ' operate in the same way in which it would have operated if the words of the will had been contained in the codicil of later date.'" Let it therefore be assumed that the codicils of the testator operate so as to contain the disposition of Birrell Court as in the will, what then is the effect of such a devise when in fact the testator has sold the property and has an interest only in its proceeds? The question depends upon the testator's intention gathered from his words in the surrounding circumstances. When the testator confirmed his will he had sold his property known as Birrell Court. It is said that the words of the codicil and the words of the will, despite the different state of facts, have the same meaning and exhibit an intention on the part of the testator to dispose of Birrell Court only as land and not to dispose of the pro- ceeds of the property or of the testator's interest, whatever it was which he had in that property. But, if that be the effect of the con- firmation of the testator's will by his codicils, then nothing passed to his son under the devise of Birrell Court. The court should, if possible, give some effect to the codicils, and when the testator confirmed his will in the altered circumstances already stated must he not have intended to apply the words of the will to the interest, whatever it was, which he had in Birrell Court? The answer should, I think, be in the affirmative. There is no rule of law or of construction which prevents the court from giving effect to that intention gathered, as it is, from the words of the codicils used in the altered circumstances of the case (In re Warren (3) ).

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The devise which the testator made to his son Roy of the property known as " Birrell Court" was a specific devise. It was a gift of a particular item of the testator's property and nothing else. The subsequent sale converted the subject of the gift into property of a different kind. It is a well-established principle that if a testator should sell to a third person any property which beforehand he had specifically given to another by his will, the purchase money would not pass at his death under the terms of the specific gift (Watts v. Watts (1) ). This principle is not disputed by the appellant, who is the testator's son Roy, and it is not argued that the principle does not apply to the case where the purchaser of the property, the subject of a specific gift by will, is the devisee or legatee of the property. It is necessary for the success of the claim made by the appellant in respect of the balance of the purchase money due according to the terms of the sale of Birrell Court, that the codicils confirming the will republished the devise of this property and operated as a disposition to the appellant of the balance due at the testator's death. It is true that the confirmation of a will by codicil operates as a republication of a will. The confirmation is a declaration that generally the provisions of the will express the testamentary inten- tions of the testator at the date of the codicil. If any disposition in the will should be presumed not to express the testator's intention at that date a general confirmation of the will would not operate to republish that disposition, although it were to be found standing in the will. The question whether a general confirmation republishes every part of the will is one of the testator's intention. In the present case the testator by his own act took away - adeemed it is called - the specific devise by selling the devised property. This fact, it seems to me, stands in the way of presuming from the general confirmation of the provisions of the will that the testator intended to republish the words of the devise as an effective part of his testa- mentary dispositions.

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Interest Reduction (Amendment) Act which came into force on 11th 4. ©. oF A. December 1931. This last-mentioned Act abolished the appellant's - '+4- pee : ed personal liability to pay the purchase money and interest referred to pry. in the contract. The effect of the Act was to eviscerate the contract weaTnen to one which the testator could not enforce against the appellant, p(n. so that his only remedy, in the event of non-performance, subject weatner. to complying with the requirements of the Act, was rescission. witiians J. Further performance of the contract became, therefore, entirely optional on the part of the appellant. These Moratorium Acts were repealed by the Moratorium Act 1932, but the personal liability of the appellant was not restored, so that the contract remained in the same condition at the date of death. On 23rd March 1936 the testator made a second codicil by which, after reciting the execution of his will, the first codicil and the bequest of the legacy of £100 and the devise and bequest of residue contained in his will, he revoked the bequest of £100 and altered the disposition of his residuary estate. The codicil then proceeded : " in all other respects I do hereby ratify and confirm my said will except and in so far as the same may in any wise have been altered or revoked by my said first codicil thereto and I do hereby ratify and confirm my said first codicil." The testator died on 16th October 1941. The appellant had only partly performed the contract at the date of death, the amount still owing for principal and interest being £1,705. The property was still subject to the mortgage for £1,000. The question that arises for decision is whether the appellant is entitled as a beneficiary under the will and codicils to have Birrell Court transferred to him subject to the mortgage for £1,000, or whether he is only entitled as a purchaser to have the property transferred to him unencumbered upon payment in full of the purchase money and interest due under the contract. Roper J. declared that : - ' Upon the true construction of the will and two codicils of the above-named testator Walter Richard Fairweather deceased and in the events which have happened the devise contained in the said will of the property known as ' Birrell Court' Birrell Street Waverley to Roy Gilbert Fairweather was revoked by the contract for sale of the said property made by the testator with the said Roy Gilbert Fairweather dated 21st December 1928." It is from this declaration that the appellant has appealed to this Court. Apart from the peculiar feature that the beneficiary and the purchaser are the same person, and, subject to the effect, if any, of the Moratorium Acts, the position would, I think, be as follows : If the testator had made the will but not the codicils, and had died,

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would be strange if Lord Cottenham, in a statement apparently referring to legacies generally, intended to refer in the same breath to the ademption of legacies by subsequent portions, which is applicable to all three classes of legacies, and to the ademption of a legacy by the sale or destruction of the subject matter, which can only occur in the case of a specific legacy, and cannot occur in the case of a demonstrative or general pecuniary legacy. If the state- ment was intended to refer to the immediate ademption of a specific legacy (and by analogy of a specific devise) by a testator entering into a contract to sell the property, then, so far as it is material to this appeal because it relates to devises, it must be considered in the light of the fact that it was made with reference to the will of the testator made before Ist January 1838, and, therefore, to a will to - which the Wills Act 1837 (Imp.) would not apply. In the case of - wills made prior to Ist January 1838 the position was that where a testator, subsequently to making a specific devise of land, entered into a specifically enforceable contract to sell the land, the contract had the effect, under the equitable doctrine of conversion, of convert- ing the testator's beneficial interest in the land into an interest in the proceeds of sale, and therefore into personalty, and of thereby revoking the will in equity. If, later, the contract was completed by the conveyance of the land to the purchaser, the specific devise was also revoked or adeemed at law. Although, therefore, the specific devise still remained written in the will, equity, after the date of the contract, regarded the land as having been removed from the operation of and the devise as forming no part of the will, and law, after the date of the conveyance, regarding the writing in the same way. The result was that, if the contract was subsequently cancelled, or, if the land, having been conveyed away, was subse- quently reacquired in the lifetime of the testator, so that the testator was at the date of his death the legal and beneficial owner of the land, in the case where the contract was cancelled the devise failed in equity and in the case where the land was conveyed away and subsequently reacquired it failed both at law and in equity: See generally Sugden on Vendors and Purchasers, 14th ed. (1862), pp. 183-194.

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That the position since the Wills Act is that a specific devise which is not revoked in accordance with the Act remains a part of the will, and only fails if there is no beneficial interest on which it can operate at the date of death appears, I think, from Ford y, De Pontes (2) where Lord Romilly said : - " The question depends - on the Wills Act (1 Vict. ce. 26), and it has been observed that under the construction of that statute, so far as it affects this case, - the disposition by will can only be revoked either by some writing i declaring an intention to revoke the will or by ademption, that is - to say, by taking away the subject matter of the devise. The two modes may be illustrated thus : - If a person devise Whiteacre to A, and he afterwards signs a paper attested by two witnesses, in which he says 'I wish to alter my will, and I declare that the devise to A shall not stand' or 'I wish that my will shall be revoked,' this would no doubt operate as a revocation. Again, if a testator sells or parts with Whiteacre and does not possess it at his death, then there is nothing on which the will can operate " (3). Further, when the judgment of Lord Langdale M.R. in Farrar v. Earl of Winterton (4) is read carefully, it does not, in my opinion, contain any suggestion that the specific devise was adeemed at the date of the contract. His Lordship held that the devise failed because, although it still formed part of the will, the testator had at the date of death no beneficial interest in the land on which it could operate. He said : - " But revocation, in the manner directed by the Act, is not the only mode in which the will may be rendered inoperative, If she " (the testatrix) "' had conveyed the estate, and thereby com- pleted the alienation, the will would have had no operation upon it, or upon the purchase money " (5). But his Lordship was there referring to the position which existed at the date of death, because later he said : - " The beneficial interest in the land which she had devised was not at her disposition; but was, by her act, wholly vested in another, at the time of her death Being of opinion, that by

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