Gibb-Maitland v Perpetual Executors Trustees and Agency Company (WA) Limited and Flintoff [1947] HCA 35

Gibb-Maitland v Perpetual Executors Trustees and Agency Company (WA) Limited and Flintoff [1947] HCA 35 - HCA 1947 case summary — Zoe

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events in personalty or notional personalty) to several designated persons for their lives, although there are words of division or severance and even if the gift is expressed to be as tenants in common. It is done to avoid what otherwise would be a hiatus if the limitation is followed by a limitation of the fund or property as an entirety to other subsequent takers expectant upon the dropping of all the lives. If the manner in which the earlier limitation is expressed allows of a construction making the interest joint and not an interest in common, as any of several tenants for life dies his interest accrues by survivorship to those who outlive him. Words of equal division do not necessarily preclude this, because in a proper context they may be treated as describing only a quality of joint tenancy, what the law would imply : See Turkerman or Tuckerman v. Jeoffreys or Jeffries (1). But if it appears that a tenancy or interest in common for the respective lives of the first takers was intended, cross-executory limitations may nevertheless be implied taking effect in favour of the survivors or survivor as each of the first takers dies, so that the last of them will become solely entitled to the income during the remainder of his life. Thus in Re Stanley's Settlement ; Maddocks v. Andrews (2) the provision in question actually contained an express exclusion of joint tenancy and yet the cross-executory limitations were implied. The instrument was not a will but a settlement of leasehold property. The income was limited to the settlor's daughters Annie and Mary " during the terms of their natural lives as tenants in common and not as joint tenants . . . and from and immedi- ately after the decease of the survivor of them . . . to the use of the respective child or children of the said Annie and Mary share and share alike as tenants in common and not as joint tenants." (2) Annie died before Mary leaving children. Mary died without issue. Sargant J. held that Mary took a life interest in her sister's share on Annie's death - not on the ground that there was a joint tenancy because that was expressly excluded, but following the rule of con- struction that a life interest is to be implied in favour of the survivor of the tenants in common: See (3).

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of the fund or property as an entirety or mass. The construction to be placed upon any disposition must of course depend on intention and it is therefore obvious that the presence or absence of any particular indicia cannot be said to be indispensable to a given construction. Any sufficient indication will be enough. But where the Court is asked to apply a method of construction as one shown by case law to be appropriate to the circumstances, it is important to see what have been the considerations which have led to the adoption of that mode of construction. The rule is an old one and it will be enough to mention as illustrations a few of the cases more commonly referred to, together with two recent decisions. In Malcolm v. Martin (1) the limitation was to a composite class » of children for life in equal division and at their decease betwixt their children. Thus the whole was given over to the children's children. So it was held that what looked like a tenancy in common in income could not be so construed. "The principal being only given over after the death of the children occasions a necessity to consider it as a joint tenancy": Lord Alvanley (2). In Armstrong v. Eldridge (3) Lord Thurlow considered that a joint tenancy was shown by the context consisting of the limitation to four named persons equally between them share and share alike for their respective natural lives, followed by a gift of corpus from and immediately after the decease of the survivor of them to their children equally to be divided between them share and share alike. Again there were the same character- isties. In Pearce v. Edmeades (4) the limitation was to two named persons during their respective lives in equal shares and after their decease to a composite class of their children in equal shares. Lord Abinger decided that the named persons took a joint interest because it was clear " that the mass of the property is to be divided amongst the children who might survive both the parents, per capita and not per stirpes. This would be quite inconsistent with a tenancy in common of the parents" (5). In Cranswick v. Pearson (6) the limitation possessed the peculiarity that it was expressed to be during the lives of named persons and the survivor of them during their or his natural life. The gift over was after the decease of the survivor. Lord Romilly considered it to be a joint tenancy not in form but to this extent, that the whole interest survived to the last of the named persons until she died. Again are to be seen the same

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In Re Tate; Williamson v. Gilpin (1) Sargant J. applied the con- struction to limitations of income of realty among children in equal shares with a substitutionary gift to the issue of those dying before the others and with a trust from and after the decease of all the children to sell and divide the proceeds among grandchildren equally per stirpes. His Lordship considered that the substitutional gift in the case of a child leaving issue made no difference to the case of a child dying without issue and implied cross-remainders for life to the surviving child and the children of any dying with issue. Nor did the stirpital distribution affect the result. "I think", said Sargant J., " that the testator is intending that the property shall be kept together as a whole until the death of the survivor of his children and that the income shall go amongst the children who survive either by themselves or by their respective issue, the issue being substituted for his or her parent. It is clear that they are so sub- stituted for the parents in respect of original shares, and if so I see no reason why they are not equally so substituted in respect of an accruing share given over by way of cross-remainder." (2) With this decision may be compared and contrasted Re Browne's Will Trusts ; Landon v. Browne (3) where indications were found by the same learned judge of an intention that after the death of each tenant for life a remainder in a corresponding share of corpus to the ultimate donees should at once take effect. This construction was described as distributive. It was Sargant J. who decided in Re Stanley's Settlement (4), which has been already mentioned. In Re Ragdale ; Public Trustee v. Tuffill (5) one half the net income of a fund was to be paid to A. and the other half to B. and from and after their decease the fund was to be held upon trust for a charity. Here Farwell J. held that, upon the death of A., B. took the whole income under an implied cross-executory limitation. He rejected the so- called distributive construction because he considered that "from and after their decease" referred to the event of both being dead and did not mean from and after their respective deaths. He excluded an intestacy and, it being treated as one fund held for the charity, the case for the implication of cross-executory limitations was complete. A similar and perhaps even clearer case was decided

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