His Lordship considered that the diminishing effect of "other or others" did not apply in the instant will and read the word "others" literally.
14 If one interprets the word "other" literally, then when a particular daughter dies, it is the four other daughters who take her share equally. This means, however, that when Myrtle dies her share of capital is split between Hazel, Iris, Wanda and Myee. However, this is rather strange because Hazel has already predeceased and her share has accrued to Iris, Wanda, Myrtle and Myee. Accordingly, one goes round and round the circle. The same mutatis mutandis applies to Myee's share.
15 Accordingly, Mr Harris, who appears for the plaintiffs, says that the above solution is so bizarre that no Court should follow it.
16 The next possibility is that one actually reads "other" as daughters surviving the daughter who died. However, this does not work because when Myrtle dies her share would accrue to Myee, but when Myee died, there are no surviving daughters.
17 This causes Mr Harris to say that there is an intestacy in respect of the one-half share of capital. He acknowledges that there are utterances such as those quoted in Fell v Fell (1922) 31 CLR 268, 275-6, that the Court leans against intestacy and does not presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary. See also Kirby-Smith v Parnell [1903] 1 Ch 483, 489-490. However, one must remember that this is not a strong presumption and the Court should not lean too heavily against a construction that produces an intestacy, particularly a partial intestacy: In re Wragg [1959] 1 WLR 922, 929.
18 The other possible interpretation is that one reads "other daughters" as meaning the daughters or their representatives who are eligible to take a share. Mr Harris says that this is really supplying words. It is probably is supplying the word "eligible" before "daughters" but this implication may be justified because of the words that follow "and so that" shortly after the words "other daughters". By these words and those that follow, the testator has indicated that the trust for the "other daughters" is to operate so that the accruing share shall be subject to the same trust as the original share of the same daughter. Accordingly, if the trust of the original share has come to an end, Hazel cannot take under the accruing share. However, when Myrtle dies, her share can pass to Iris' children, Wanda's children and Myee, and likewise, when Myee dies, her share can pass to Iris' children and Wanda's children. Moreover, the words that follow "PROVIDED ALWAYS that", whilst not directly applicable as they only deal with the situation where a daughter dies in the testator's lifetime, suggests that the testator had in mind that the children would take the share that their mother otherwise would have taken including accrued shares.
19 Accordingly, in my view, apart from the rule in Lassence v Tierney, the contention of Mr Whittle SC for the first defendants, succeeds.
20 I now pass to the rule in Lassence v Tierney, sometimes called the rule in Hancock v Watson [1902] AC 14. In the words of Lord Davey in the latter case:
"It is settled law that if you find an absolute gift to a legatee in the first instance, and trusts are engrafted or imposed on that absolute interest which fail, either from lapse or invalidity or any other reason, then the absolute gift takes effect so far as the trusts have failed to the exclusion of the residuary legatee or next of kin as the case may be."
21 It seems to me that in the instant case the gift is an absolute gift to each daughter with trusts engrafted on it. Having reached that conclusion, then as Lord Davey says at the same page, the next of kin must be excluded. In my view the trusts have not failed because on their true construction Mr Whittle SC's argument is correct. However, the rule in Lassence v Tierney may be relevant to the question of costs which Mr Whittle SC has informed the Court that he wishes to argue after these reasons are handed down.
22 I should thus simply publish these reasons and ask counsel for the first defendants to bring in the appropriate short minutes of order. I will tentatively fix Monday 19 March at 10.30 am for discussion of the short minutes and argument as to costs, but if some other Monday is more convenient to counsel, then provided my Associate has a week's notice, that day may be changed.
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