104Residuary estate of deceased, application of income from

##### 104. Residuary estate of deceased, application of income from (1) Where, under the provisions of the will of a person (in this section called the deceased) who dies after the commencement of this Act, any real or personal property included either by specific or general description in a residuary gift is settled by way of succession, no part of the income of that property (which property is hereinafter in this section called the settled property) is applicable in or towards the payment of the funeral, testamentary, and administration expenses, or the debts, legacies, and liabilities, or of the interest (if any) thereon, up to the date of the death of the deceased. (2) Subsection (1) does not apply to any commission that is payable to the trustee in respect of any such income as is mentioned in that subsection or to any testamentary or administration expenses that, apart from that subsection, would be payable wholly out of income. (3) The income of the settled property is applicable in priority to any other assets in payment of the interest (if any) accruing due on the funeral, testamentary, and administration expenses, and the debts, legacies, and liabilities after the date of death of the deceased and up to the payment thereof, and the balance of that income is payable to the person for the time being entitled to the income of the settled property. (4) Where, after the death of the deceased, income of assets comprised in the settled property that are ultimately applied in or towards payment of the funeral, testamentary, and administration expenses, and the debts, legacies, and liabilities arises pending that application, that income shall, for the purposes of this section, be deemed to be income of the residuary estate of the deceased. (5) In this section administration expenses includes duty payable under the *Administration Act 1903*, and estate duty payable under any Commonwealth Act and any other duty payable in any state or country outside this State on, or consequent on, or arising out of, the death of the deceased to the extent to which such duties are payable out of residue. (6) Nothing in this section applies to any annuity that is payable out of the estate of the deceased. (7) This section affects only the rights of beneficiaries under the will as between themselves, and does not affect the rights of creditors of the deceased or limit any other powers of the trustee. (8) The provisions of this section apply if and so far only as a contrary intention is not expressed in the will, and have effect subjects to the terms of the will and of any Act as to charges on property of the deceased.