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[1906] HCA 35
High Court of Australia
1906-07-01
Connor JJ, Beckett J
Original judgment source is linked above.
RT AND OTHERS . 4 3 . RESPONDENTS. FFS AND DEFENDANTS,
wction - Gift over if beneficiary die without leaving wife or children - fC. or A. 0 sell - Absolute gift - Ambiguity - Codicil used to explain will. 1906.
and codicil being all one testament, the language of the codicil may ), 77
d to interpret that of the will if the latter is open to two constructions. Mag 25 Jains
'a will property was given to A. with a gift over in the event of his 11> 8
without leaving a wife or children, and the question was whether the
\ey was limited to the death of A. before that of the testator, or "piith OJ, ther it referred to the death of A. at any time. A codicil to the will Connor JJ. ed language which showed that the testator thought he had given an e to A. which would be absolute if A. survived him.
that A., having survived the testator, took an absolute estate.
Pe, 1900, and a codicil thereto, dated 7th January 1903.
terial parts of the will and codicil are set out in the hereunder. The testator left him surviving his wife,
were of age at the testator's death, and all were 1 except the last-mentioned two daughters. a
An originating summons was taken out by the u trustees asking for the determination of the follomaay (inter alia) : -
(a) Is it the duty of the executors of the said tes respect to the said fourth share to transfer and make 0} same to the defendant Donald Halley Jenkins, and if
(D) And if not, how should the said fourth share be de by the said executors, and how should the income the said one-fourth share be applied ? ¢
5 and 6, were similar questions as to Dugald MeKella
Beckett J., by whom the summons was heard, held shares of Donald and Dugald were each subject to an ext gift over in the event of Donald or Dugald respectively without leaving a wife or lawful issue, and that. it duty of the trustees to retain the shares under their eon! to invest them and to pay the income to Donald and respectively.
From this decision Donald and Dugald Jenkins now to the High Court.
Starke, for the appellants. The words " in the event of son Donald Halley Jenkins dying" refer to the d beneficiary during the lifetime of the testator. meaning of the words is ousted by the context. he treated as absolute on the death of the testator. Even '
issue, the executors are bound to hand over 'the Donald: In re Lazarus; Trustees Executors and , Co. y. Levy (1). There cannot be a gift of personalty for rman on Wills, 5th ed., p. 837. In In ve e Tnvddy ; Peard
ai to convey Sal assign S the beneficiary abso- dthat the death of the beneficiary, in the event of was a gift over, meant death during the lifetime of See also In ve Hayward; Creery v. Lingwood y v. Burdett (4). The codicil may be looked at to the will: In ve Elcom; Layborn v. Grover- Williams Venn (6); Grover v. Raper (7).
iicil shows that Donald and Dugald were entitled to
for the respondents the daughters of the testator. laid down by Lord Cairns L.C., in O'Mahoney v. ), that a bequest to A., and, if he shall die unmarried out children, to B., is, according to the ordinary and literal of the word, an absolute gift to A., defeasible by an ry gift over, in the event of A. dying, at any time, under umstances indicated, namely, unmarried or without His Lordship further says that this ordinary and ming is not to be departed from otherwise than in a ce of a context which renders a different construction ty or proper. In the cases relied on by the appellants ere clear words in the contexts rendering it necessary to ferent construction. Here there is nothing in the which requires a different construction. There is no ity in the will itself, and the codicil cannot be used to ewill. If there is an absolute gift which is defeasible,
HIGH COURT a [He also referred to Olivant v. Wright (1); Lewin vy. k i
GrirritH C.J. delivered the judgment of the Courts an appeal from the decision of &Beckett J. upon the of a somewhat peculiar will. It is one of those cases different minds may reasonably come to different cor But we are called upon to exercise our own individual and in doing so we differ with reluctance from a Judge great experience in these matters as dBeckeit J. The t was a farmer living at Roseneath, near Warrnambool. two sons, Donald and Dugald, and five daughters, of who were married. By his will he first directed that his deb be paid. Then he specifically bequeathed to his wife furniture and household goods in and about his dwel : The will then proceeded : " I give devise and bequeath of all my other real and personal estate unto my son Halley Jenkins and also the sum of one hundred pounds, direct that the one-fourth share of my said son Donald Jenkins shall revert to my living son or daughters or children in equal shares in the event of my said son D Halley Jenkins dying without leaving a wife or lawful is direct that all my real and personal property (except as a said) shall be sold after my decease and that the pr thereof shall be divided as follows, one-fourth thereof t said son Donald Halley as hereinbefore directed." Hi gave legacies of £100 each to his wife and his three d Annie Sinclair Jenkins, Kate Maud Jenkins, and Nelli Jenkins, and directed that such legacies should be paid months of his decease. He next gave an annuity of £100 wife while she should remain at Roseneath, to be i £150 if she should live elsewhere. The will then procee give devise and bequeath all the rest and residue of my personal property and the proceeds of the sale thereof a said equally between my son Dugald McKellar Jenkins
ife of Edward Hill of Colac, Annie Sinclair, Kate Maud, and llie Cope, and I direct that the shares of my said daughters Mann, Jessie Allan, Annie Sinclair, Kate Maud, and Nellie . shall be paid to them within twelve months after the e of my said wife, and that in the meantime their said res shall be invested by my trustees for their benefit and that come thereof shall be paid to them for their sole and use: And I direct that the share of my said son Dugald 'ellar shall revert to my living daughters or their children in il shares in the event of the said Dugald McKellar dying hout leaving a wife or lawful issue." The testator there uses me words as to Dugald's share as he had used as to Donald's re, The will also conferred a power on the trustees at their retion to carry on his farm or any other business he might be din at the time of his death, and to permit his wife and to reside in his dwelling house. Upon that will the question submitted to us is, what shares do dand Dugald respectively take in the estate of the testator ? ifts to Donald and Dugald, though they are of different unts, are subject to the same direction, viz., that the share is to '," in the one case, to the testator's living son or daughters their children in equal shares, and in the other case, to the itor's living daughters or their children in equal shares, in event of the particular son dying without leaving a wife or vful issue. The first question is whether Donald's share is vested dlutely in him on his surviving the testator, or whether he '4 vested estate liable to be divested in the event of his dying imately without leaving a wife or lawful issue. Strictly and ically, of course, the words of the gift imply that the cy will happen whenever Donald dies, and the case of vy. Burdett (1) establishes that, if no more appears in the grammatical construction must be applied in con- gthose words. But that construction may be excluded by context, as in every other case. It is undesirable in the tion of wills to have recourse to fixed rules of con- tion any further than is necessary. But there are two
s Agnes Mann, the wife of James Stewart, Jessie Allan H. C. or A
H.C. oF A. principles applicable to the interpretation of wills
struction of which is open to doubt, that may afford aid in the present case. One is that the Courts alway: towards a construction in favour of vesting, and the o that the Courts always lean against a construction that y about an intestacy, if any other construction is open. to the respondents' contention, that is, if Donald's share do vest on the death of the testator, there would be an intes he were to survive his brother and his sisters, and die leaving a wife or children. That of itself suggests that the some doubt whether that is what the testator actually m Then, if we look to the context for an explanation, we find th testator directs all his real and personal property to be sold : his decease and divided. That means, prima facie, immed al or as soon after his death as it conveniently can be sold, said by James LJ. in Olivant v. Wright (1), in refe similar words. So that that direction standing alone suggest that as soon as is practicable after the testator's the property was to be sold, and that Donald was then to ret his one-fourth share. In the same ease, Mellish LJ. said "I think it is quite clear that by the word 'divided' the meant that the executors were actually to divide the pi and that the corpus of the property, real and personal, was actually handed over and given to the children or their issu the case might be." We have here, then, an indication of a struction different from the strict grammatical construction, ' that the testator intended that the money should be handed of to Donald if he was then in existence to receive it. An ar ment was suggested, founded on the word "revert" which literally "go back." But it cannot mean that in this will, bee it had never been the property of those to whom it "revert," and could not, therefore, strictly speaking, them. The word can only be read as " pass" or " go over. in that sense it does not throw any light upon the real of the testator.
Then it is said that the direction to pay an annuity to widow indicates that the property is not intended to be
(1) 1 Ch. D., 346, at p, 349. (2) 1 Ch. D., 346, at p. 349.
other three-fourths of the estate and not out of Donald's rth share. With respect to Dugald's share that answer
» in the case, it would be difficult to say what is the proper truction of the will. :
il to his will. By it he gave legacies of £100 each to his two ied daughters and his son Dugald McKellar Jenkins, and that such legacies were in no way to affect their shares or in his residuary estate "as hereinbefore provided for in rill," using the word "hereinbefore" as if the will were a part ment he was then writing. He further gave a legacy of to his son-in-law James Stewart, and directed that all the given by the codicil should be paid within six months of his Then the codicil contained these words : - "And it is my I hereby direct that in the event of any of the said predeceasing me without leaving lawful issue then the re or shares to which they would have been entitled if they vived me or died leaving lawful issue shall go and belong be equally divided among my surviving children or their issue in equal shares, but so that no child or children of iy said sons or daughters shall take more than his her or ents would have taken if he or she had been living; and
n his will to Dugald, and speaks of his share as a share to Dugald would have been entitled if he had survived the
din the life-time of the testator leaving lawful issue. ator therefore thought that he had left a share to Dugald
words had been "had survived me and died leaving sue," no help could have been got from the codicil. But ig the construction the testator has by his codicil placed 'gift to Dugald, we have high authority for the proposition
at the testator's death. But the annuity is to be paid H.C. or A.
codicil to interpret it. In the case of Darley v. Martin (1), C.J., in delivering the judgment of the Court said: - "And, as | the effect of the codicil, it was argued, that an erroneous re! in a codicil to the dispositions of the will, cannot constitute an bequest in opposition to the will: and Skerratt v. Oakley (2), relied on. But it appears to us that the argument with respect the effect of the codicil, when rightly considered, is not that th will is at all revoked or varied by the codicil ; but, rather, that th will and codicil being all one testament, the language of the wil may be interpreted by that of the codicil; and that, according the gift over in the will, 'in default of such issue, being capable importing a bequest over on failure of issue living at the deat} it ought to be inferred that the testator employed it in sense, because, in the codicil, he refers to it as if it were a over in default of his daughter's leaving no issue, which, as personalty, is tantamount to a gift on failure of issue living at her death." That case was followed in Grover v. Raper (: and In re Venn (4).
Therefore we think we may have recourse to the codieil clear up the obscurity in this will. There clearly is an obscurity since the words are, having regard to the context, capable of constructions. Doing so, we find that what the testator inte as to Dugald was that, if he survived the testator or died d the testator's lifetime leaving lawful issue, his share should be vested. Finding that that was his intention as to Dugald, ho is it possible to say that, when the testator used the same word with regard to Donald, he intended something different ?
On the whole, therefore, we have come to the conclusion th the real intention of the testator as expressed by these b testamentary documents was that the shares of both Donald and Dugald should be vested.
The result therefore is that the order of dBeckett J. will varied, and the questions will be answered as follows: -
(1) 13 C.B., 683, at p. 690. (2) 7 T.R., 492. (3) 5 WR, (4) (1904) 2 Ch., 52.
) be paid immediately after sale. H. C. oF A. ld takes a vested interest in one-sixth of the residue of ey
three-fourths after payment of the legacies and - jpyxrys Srewane.
To be paid immediately after the sale, subject to provision e payment of the annuity.
Appeal allowed. Order varied. Questions answered as above. Costs of all parties as between solicitor and client out of the estate.
Solicitor, for appellants, J. H. Maddock, Melbourne, olicitors, for respondents, G. S. Mackwy, Warrnambool; A. A. clair, Melbourne.
on of Commonwealth instrumentality by State - Powers of States - Stamp Duty
transfer of Property - Land in State acquired by Commonwealth for Public" sayy
purposes - Statnte not binding on Crown - Stamp Duties Act (N.8.W.),(No.27 =
f 1895), sec. 23 - Real Property Act (N.S.W.), (No. 25 of 1900) - Property SypNEY, Public Purposes Acquisition Act (No. 13 of 1901), sec. 3 - The Constitution, April, 2, 3.
A Griffith C.J., By see. 4, schedule 2 of the Stamp Duties Act (N.S.W.) 1898 ad valorem o@ron and is payable on every conveyance or transfer on sale of any property ; and 23 of that Act provides that no unstamped instrument required by the Act
be stamped shall be registered or capable of being registered in any office.