In the Estate of Kathleen Theresa Purcell, Deceased Bryan Francis Purcell v Frances Anne Purcell and Felix John Purcell [1991] ACTSC 5; (1991) 103 FLR 271 (7 February 1991)

SUPREME COURT OF THE ACT

IN THE ESTATE OF KATHLEEN THERESA PURCELL, deceased
BRYAN FRANCIS PURCELL v. FRANCES ANNE PURCELL and FELIX JOHN PURCELL
S.C. No. 21 of 1990
Wills
[1991] ACTSC 5; (1991) 103 FLR 271

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Wills - Whether "house property" includes home unit - Whether "house property" extends to all realty capable of being described as a "house" or merely the testatrix's residence - Intention - S.24 Wills Act 1968 - Extrinsic evidence - Admissibility - Words given their clear meaning - Discussion of authorities.

Crimes Act 1900 (NSW), ss.196 ,197; Wills Act 1968 (ACT), s.24

Simmons v Pizzey (1977) 2 All ER 432

Re Sikes (1927) 1 Ch 364

Yorkshire Insurance Co v Clayton (1881) 8 QBD 421

Grant v Langston (1900) AC 383

Ex parte High Standard Constructions Ltd (1929) 29 SR (NSW) 274

R v Tahau (1975) 1 NSWLR 479

Higgins v Dawson [1997] UKHL 17; (1902) AC 1

National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children (1915) AC 207

In re Grazebrook; Chase v Layton (1928) VLR 75

Glassington v Follett (1906) 2 Ch 305

In the Will of Cain, Linehan v Cain (1913) VLR 50

In re Hodgson, Nowell v Flannery (1936) 1 Ch 203

Perrin v Morgan (1943) AC 399

Lutheran Church of Australia, South Australia District Inc v Farmer's Co-operative Executors and Trustees Ltd [1970] HCA 12; (1970) 121 CLR 628

Baker v Drysdale (1982) 29 SASR 572

HEARING

CANBERRA
7:2:1991

Counsel for the plaintiff: Mr B.A. Meagher

Instructing solicitors: Messrs Donohue and Co

Counsel for the first defendant: Mr R.L. Crowe

Instructing solicitors: Messrs Minter Ellison

Counsel for the Second defendant: Ms E. Ryan

Instructing solicitors: Messrs Blake Dawson Waldron

ORDER

The expression "house property" as used in clause 4(a) of the testatrix's will includes a home unit.

The expression "any house property forming part of my estate" includes only such dwelling as was the testatrix's home and in which she had her household immediately before her death.

The home unit owned by the testatrix in Giles Street, Kingston and further described in the affidavit of the plaintiff filed herein and dated 10 January 1990 is included in the expression "house property" contained in the said will but not the home unit owned by the testatrix in Howitt Street, Kingston.

Felix John Purcell be authorized to represent in these proceedings the interests of the beneficiaries under the will other than Frances Anne Purcell pursuant to Order 19 Rule 10.

Each of the plaintiff and the defendants have their costs of these proceedings out of the estate on an indemnity basis.

DECISION

The plaintiff, Bryan Francis Purcell, is the executor of the will of his mother, the late Kathleen Theresa Purcell (the "testatrix"). The testatrix died on 8 December 1984. She was survived by seven of her eight children. One of them, Frances Anne Purcell, the first defendant, is intellectually handicapped. The other five children are, collectively, represented by the second defendant.

2. As at her death, the property of the testatrix comprised the following:-
REAL ESTATE

Residential home Unit 44 in Units Plan
310 Wentworth Gardens, Giles Street,
Kingston 112,000.00
Residential home Unit 14 in Units Plan
168 Pinoak Place, Howitt Street,
Kingston 130,000.00
PERSONAL ESTATE
1,740 x $1.00 Shares in Colonial Sugar
Refinery Ltd 5,000.00
632 x $0.50 Shares in Western Mining
Corp Ltd 2,000.00
Bank Account with ANZ Savings Bank 1,636.49
Bank Account with Commonwealth Savings
Bank 119.00
Furniture, clothing and personal effects 1,000.00
Cash on hand 40.00
National Mutual T and G Insurance Policy 4,063.00
Total 255,858.49
Less Liabilities 100.00
Net Total $255,758.49

3. Of this total, it appears that $242,000.00 of the value of the estate, as at 8 December 1984, was attributable to real property. The remainder is attributable to personal property.

4. The testatrix left a will. It was not her own composition but appears to have been drafted by a solicitor.

5. The relevant portions of the will are as follows:-
"4. If my husband does not survive me by thirty days then

I GIVE ALL MY ESTATE TO MY Trustee to hold upon the trusts
declared in the remaining provisions of this will and
subject to the powers discretions and directions therein
contained and for the purpose of this will I have divided
my estate into two parts namely:-
(a) My household estate which shall include any house
property forming part of my estate together with such
of my household and garden chattels as my trustee may
at his discretion classify as being part of my
household estate. - - - -
and
(b) My distribution estate which shall include the rest of
my estate. - - - -
5. My trustee shall hold my distribution estate on the
trusts and with the powers and discretions set out in this
clause:
(a) At my Trustee's discretion and from time to time to
divide in specie between such of my children
(including my Trustee but excepting my daughter
FRANCES ANNE PURCELL hereinafter called "Frances") who
shall survive me such of the personal chattels as my
Trustee may consider appropriate to be so divided and
in such shares as my Trustee shall in his discretion
determine but where practicable in approximately equal
shares. -
(b) To convert into money such part of the distribution
estate as shall not consist of money with power at my
Trustee's discretion to postpone the conversion of any
part for so long as my Trustee shall think fit. - - -
(c) To pay my debts Funeral and testamentary expenses. - -
- -
(d) To divide my nett distribution estate into ten equal
portions. - - - -
(e) As to six of those portions to divide the same equally
between my children including
my son Bryan but excluding Frances and my son Kevien
Barry Purcell (hereinafter called "Kevien"). - - - -
(f) As to three of those portions to hold the same as part
of my maintenance trust property described in clause
six of this will. - - - -
(g) As to one of those portions to hold the same as part
of a fund (hereinafter called "Kevien's fund") and on
the trusts and with the powers and discretions set out
in clause seven of this will. - - - -

6. (1) My maintenance trust property shall be comprised

of my household estate and the three portions referred
to in the clause five of this will and shall include
the nett proceeds of any sale of my household estate.
(2) My trustee shall hold my maintenance trust
property on the following trusts and with the
following powers and discretions:-
...
(b) To let and relet any house property forming part
of my estate or any portion of any such property
either with or without household chattels upon
such terms and conditions as my Trustee shall
determine. - - - -
(c) At my Trustee's discretion where any such house
or portion is not let to permit Frances and any
of my children who in the opinion of my Trustee
reasonably require assistance or who assume the
actual care of my daughter Frances to reside in
such house or portion either without charge or
upon such terms and conditions as my Trustee
shall determine. - - - -
(d) To invest and re-invest the moneys available
(including the proceeds of any sale of any part
of my household estate) in such investments as my
Trustee shall determine whether or not the same
be investments authorized by law or in equity. -
- - -
(e) At my Trustee's discretion to purchase or lease a
residential Unit for use by Frances. - - - -
(f) At my Trustee's discretion to apply the nett
income or any part and if my Trustee thinks fit
the capital or any part in such manner as my
Trustee shall from time to time determine for the
maintenance and benefit of Frances, having regard
to her needs capacities and behaviour and to the
directions contained in Clause eight of this
will.
(g) Where in respect of any year ended the last day
of June the whole of the nett income is not
applied towards the maintenance and benefit of
Frances the portion not so applied shall form
part of my residuary estate. - - - -
(h) Upon the death of Frances to hold the balance of
any maintenance trust property then remaining as
part of my residuary estate. - - - -
...
8. I GIVE the following directions:-
(a) Notwithstanding anything elsewhere contained in
this will my Trustee may at his discretion
determine from time to time that a part of the
capital or income shall not be applied towards
the maintenance or benefit of Frances or Kevien
where in my Trustee's opinion the application
would operate to reduce any pension or other
social service benefit to which Frances or Kevien
would be otherwise entitled or to disqualify her
or him from receiving any pension or other social
service benefit. - - - -
(b) My Trustee shall hold the residue of my estate in
trust for my children including my son Bryan (but
excluding Kevien and Frances) in equal shares and
shall divide the same between them as and when it
becomes available.
(c) If any of my children other than Kevien and
Frances dies before me or before receiving the
full share in my estate and leaving issue who
survive me or are born after my death that issue
shall take and if more than one in equal parts
the share or remainder of the share which the
parent would otherwise have received. - - - -
(d) Should my Trustee die after obtaining probate and
before completing his trusteeship then a majority
of my children (other than Kevien and Frances)
then surviving may appoint any two of them as
substituted trustees of this will and those two
may exercise all the powers and discretions of my
trustee under this will. - - - -"

6. It may be noted that Kevien and the testatrix's spouse predeceased the testatrix. The effect of the will is that the "household estate" (plus 30% of the "distribution estate") is defined as the "maintenance estate". The "distribution estate" is to be divided between the six children other than Frances. It includes the testatrix's residuary estate.

7. The "maintenance trust property" is to be applied for Frances' benefit. Surplus income and, on Frances' death, the "maintenance trust property", becomes residue and this is to be divided equally on falling into residue, between the six surviving children of the testatrix.

8. The plaintiff, by originating summons dated 15 January 1990, asks the following questions:-
"1. Whether upon the true construction of the last will

and testament of Kathleen Theresa Purcell, deceased
("the testatrix") and in the events which have
happened.
(i) The expression "house property" as used in
clause 4(a) of the testatrix's will should be
interpreted so as to include a home unit.
(ii) If so, whether the expression "any house
property forming part of my
estate" should be interpreted as including any
and every home unit owned by the deceased at
her death or only one such unit being the unit
in which the testatrix was living and had her
household at her death.
(iii) Either or both of the home units owned by the
testatrix in Howitt and Giles Streets, Kingston
in the Australian Capital Territory and further
described in the affidavit of the plaintiff
herein filed are included in the expression
"house property" contained in the said will.
(iv) Such other questions incidental to the above as
the court deems appropriate."

9. Ancillary orders are also sought as to the representation of the beneficiaries other than the plaintiff and Frances and as to costs. The former are agreed and need not be considered further. The question of costs has been addressed by counsel and I will deal with it in due course.

10. The summons was supported by an affidavit of the plaintiff. The contents are undisputed, although Mr Crowe, for the first defendant, contends that parts of the affidavit are irrelevant, and therefore, inadmissible. Mr Meagher, for the plaintiff, contends otherwise. The real issue is whether:-

(i) Neither of the home units form part of the
"house property";
(ii) The home unit occupied by the testatrix
immediately before her death alone constitutes
the "house property"; or
(iii) Both the home units are included in the "house
property".

11. Those issues arise because, the plaintiff says, there is doubt on the face of the will as to what "house property" means in the context of the will. As a result, extrinsic evidence of the circumstances existing when the will was made are admissible. In my view, if an issue arises, even if ultimately rejected, the evidence necessary to support the contention is admissible. If, because the issue is otherwise decided, and the fact so proved is found irrelevant, no harm is done. I propose, therefore, to have regard to the affidavit in its entirety.

12. When the testatrix made her will it would have left all her estate to her husband. His will left all his estate to her. However, in the event of him predeceasing her (as happened) she sought to provide for their children. At that time real property (the matrimonial home) and personalty (largely shares and bank accounts) were roughly equal in value. The realty was probably worth less than 40% of the total. It followed that, had the situation remained (relatively) as it then was until the testatrix's death, about 60% of the estate would have been immediately distributable amongst the six surviving children other than Frances.

13. However, following the making of the will, the testatrix (and her husband whilst he was alive) altered the relative holdings and composition of the estate by selling the matrimonial home and buying a home unit in Howitt Street, Kingston with the proceeds. They then sold some shares and purchased a unit at Chapman, retaining Howitt Street as an investment. After Mr Purcell's death on 17 August 1981 the testatrix sold Chapman and bought a unit at Giles Street, Kingston. The latter unit was her residence until her death. Most of that time Frances lived there too, as a member of the household. However, in November 1984, Frances was accepted as a resident in accommodation for handicapped persons. She, in fact, requires very little subsidy from the estate (at most $10.00 per week).

14. The combination of those facts means that the provision of a large portion of the estate for Frances' benefit as intended by the will is unnecessary. However, the questions before the Court do not depend for their answer on the failure or otherwise of the scheme of the will to achieve its apparent objective. The question, being one of construction, is as to the intended meaning of the will.

15. Section 24 of the Wills Act 1968 (ACT) provides that:-

"A will shall, unless a contrary intention appears in it,
be construed as speaking and taking effect so far as the
real property and personal property referred to in it are
concerned as if it had been executed immediately before the
death of the testator."

16. This is a rule of construction. Normally, a document such as a will would have the meaning intended when drawn. It is however, one of the characteristics of a will that it can have effect only on the death of the testator. S.24 gives the latter consideration primacy in the absence of a contrary intention appearing in the will itself.

17. Not much assistance is derived from the use in clause 4 of this will of the term "household estate". Construed alone it would refer to the domestic goods connected with the testatrix's house. It would not usually include the lands and building within which the household was located. Even if a building is a "house" it does not follow that persons living in it constitute a "household". (See, for example, Simmons v Pizzey (1977) 2 All ER 432, 442 per Lord Hailsham of St Marylebone L.C.)

18. It seems to me, however, that the term "household estate" is used in a special, stipulative or defined sense. The term "distribution estate" clearly is so used. It also seems clear that although the definition of the term which follows is expressed to be inclusive it is also exhaustive. The term "the rest of my estate" in clause 4(b) is clearly so intended. It follows that it is necessary to identify the property referred to in clause 4(a). Any property not so identified falls within clause 4(b). On this view of clause 4 no intestacy of any part of the estate can arise. It is clear that the will is drafted so as to avoid the possibility of intestacy.

19. There is no difficulty, it seems, in ascertaining what were the testatrix's "household and garden chattels". Although the qualifying word "my" precedes that phrase it does not indicate an intention to refer to chattels existing when the will was drafted as opposed to the time specified by s.24 (see, for example, Re Sikes (1927) 1 Ch 364).

20. It is the phrase "any house property forming part of my estate" which causes difficulty. The absence of the possessive "my" or any words of specificity and the presence of the qualifying word "any" at least makes it clear that there was no intention to exclude s.24. That is, it is not possible to construe clause 4(a) as referring only to the house at Reid the testatrix and her late husband jointly owned when she made her will.

21. The question then is whether, as at the death of the testatrix, there was in the estate any "house property" and, if so, whether that is confined to the dwelling in which the testatrix then had her "household" or whether it includes all realty capable of being described as a "house". It may be noted that the Howitt Street unit was used, at the testatrix's death, purely for investment purposes.

22. As early as 1881, in Yorkshire Insurance Co v Clayton (1881) 8 QBD 421, it was recognized that separate dwelling units or flats, though one above the other could each be regarded as houses for the purpose of rating legislation (see Jessel MR at p 424-5). Grant v Langston (1900) AC 383 illustrates that the term "house" usually will denote a dwelling rather than commercial premises, for the purposes of a statute imposing an inhabited house duty. (See Earl of Halsbury L.C. at 390-392). A "public house" was not a "house" for that purpose. The effect of the comments referred to is that, by itself, the word "house" can convey a variety of meanings. It is the context in which the word appears which enables one meaning rather than another to be selected. The various legal and other dictionaries to which I was referred illustrate this same point.

23. Accordingly, a block of flats would, in a colloquial and ordinary sense, constitute more than one "house". (See Ex parte High Standard Constructions Ltd (1929) 29 SR (NSW) 274.) The latter case involved the interpretation of a restrictive covenant. The authorities mentioned were also applied by Yeldham J. in R v Tahau (1975) 1 NSWLR 479 to a case of setting fire to a dwelling house contrary to s.196 and 197 Crimes Act 1900 (NSW).

24. In my view, therefore, each of the units of which the testatrix died possessed is capable of being regarded as a dwelling, and so, as a "house".

25. That conclusion does not, however, end the matter. Ms Ryan, for the five children other than the plaintiff, contends that, even if "house" includes the Giles Street property, it does not include the Howitt Street property. She says that the testatrix intended only one house and its contents (plus 2/10 of the residue) to be available for the support of Frances (the first defendant) during her life but the remainder of the estate and the unexpended income from that part of the estate was to be available to the other six children in equal shares.

26. Insofar as the testatrix's expectations are frustrated by a change in circumstances, including those she herself had perpetrated, the construction of the will is unaffected. If the words and meaning are clear they are to be given effect to. It is not permissible to prefer one construction to another merely because the ultimate purpose of the testatrix would be better served.

27. An illustration of this is Higgins v Dawson [1997] UKHL 17; (1902) AC 1. That case supports the proposition that where the construction of the will is clear it is not to the point to argue from the history of the acquisition of the property that it leads to a situation different from that which may have been expected had the testatrix in fact made the will immediately before her death.

28. Lord Shand did, however, note (p 8),

"The case is not one in which either the property dealt
with by the testator or the legatees or persons to be
benefited by the will are at all doubtful. In the class of
cases in which you cannot tell exactly what is given, or to
whom it is given, because of obscure and doubtful
expressions of the testator's will in regard to the
particular conditions of his property, you must have
recourse to extrinsic evidence to ascertain his meaning."

and (9)

"...even if it could be shewn that the intention of the
testator was something different from the language of the
will, that intention would not prevail, but the language of
the will must settle the rights of the parties."

Lord Davey expressed similar views at p 11.

29. The case of National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children (1915) AC 207 is, perhaps, a stark example of the words of a will, read as they were written, prevailing in obvious defiance of what the testator had intended those words to convey.

30. In In re Grazebrook; Chase v Layton (1928) VLR 75, Irvine C.J. had to construe the term "the real property" referred to in a will. The testatrix had never owned "real property" in the legal sense of that term. It was argued that she meant her property generally. It was held otherwise. However, at p 82, his Honour adverted to the question whether the context of a will may cast doubt on the apparently clear meaning of words found within it. His Honour thus distinguished Glassington v Follett (1906) 2 Ch 305 ("my real estate" included the proceeds of a trust for sale of freehold property) and In the will of Cain, Linehan v Cain (1913) VLR 50 ("personal property" included real property).

31. Here, of course, if "house property" is used in some special or restricted sense the phrase "the rest of my estate" is clearly wide enough to include real as well as personal property.

32. Farwell J. in In re Hodgson, Nowell v Flannery (1936) 1 Ch 203 had to construe the expression "my money" in a will. At p 206, the distinction was drawn between the context and surrounding circumstances affecting the meaning of the language used as opposed to construing the will so as to give effect to the intention of the testator as so discerned rather than the language the testator has used. In that case, although the testatrix may have believed she was disposing of her National Savings Certificates by the term she used, she in fact had cash and the words she used in her will had not been apt to give effect to her intention.

33. A different result followed in Perrin v Morgan (1943) AC 399. The term "moneys" was construed in the light of the context and "other relevant circumstances" to include the whole of the testatrix's residuary estate both real and personal.

34. The approach of Viscount Simon L.C. was aptly expressed at p 408,

"The duty of the court, in the case of an ordinary English
word which has several quite usual meanings which differ
from one another is not to assume that one out of several
meanings holds the field as the correct meaning until it is
ousted by some other meaning regarded as "non-legal", but
to ascertain without prejudice as between various usual
meanings which is the correct interpretation of the
particular document."

35. It may also be observed that, where a will is professionally drafted and uses a well-known legal term, it may be regarded as being intended to convey (at least prima facie) that meaning. "House property" has no such accepted meaning.

36. Lord Thankerton, at p 417 expressed a similar view. He said;-

"...The paramount duty of the court is to decide on the
sense in which the particular testator used the word in the
particular will without any prior presumption as to the
particular sense in which the testator meant to use the
word."

37. The High Court of Australia accepted a similar approach in Lutheran Church of Australia, South Australia District Inc v Farmers' Co-operative Executors and Trustees Ltd [1970] HCA 12; (1970) 121 CLR 628, although McTiernan and Menzies JJ. expressed no view as to whether "extrinsic" evidence was admissible to establish what the testatrix meant by the term "Commonwealth Bonds". Windeyer J. at p 648-9, however, found such evidence, that is what the testatrix regarded as her Commonwealth Bonds as both relevant and admissible. Barwick C.J. at p 632 agreed with Windeyer J. that the evidence of the actual meaning the testatrix gave to the phrase "Commonwealth Bonds" was admissible. (See also Baker v Drysdale (1982) 29 SASR 572.)

38. In my opinion, therefore, whilst evidence is not admissible to demonstrate that the testatrix has failed to express herself in such a way as to give effect to her intentions, evidence is admissible to show the circumstances in existence when the will was made so as to construe the words and phrases used by the testatrix where that meaning appears, from its context in the will, to be unclear or ambiguous.

39. The use of the term "household estate" at this point assumes some marginal significance. "Household", as I have noted, can only refer to the occupants and effects used in connection with a dwelling. "House" can refer to the testatrix's dwelling only or any dwelling place whether used by her or not. The reference to "household and garden chattels" are obviously confined to those chattels appurtenant to the testatrix's actual dwelling.

40. Evidence is clearly admissible to establish that the testatrix's dwelling, as at her death, was the Giles Street unit.

41. Clause 6(1) refers to "My maintenance trust property". It includes "the nett proceeds of any sale of my household estate". Mr Meagher did raise a question as to whether that referred to the proceeds of sale of the Reid property, which was the testatrix's house at the time she made her will. I do not think it does. It does not assist very much to try and "trace" the proceeds of the realization of property used to purchase the Howitt Street and then the Giles Street units. If that was attempted it would support an argument that the Howitt Street property, the investment unit purchased with the proceeds of the sale of the previous matrimonial home, should be regarded as part of the "household estate" whilst the Giles Street property, which contained the testatrix's household would be regarded as part of the "distribution estate", that is the residue.

42. Such a result is not only unlikely to have been intended, it also confuses the effectuation of an intention with the intention itself. It ignores the language used by the testatrix in order to give effect to her "intention" when the will was made. The real question is not what was the testatrix trying to achieve but, rather, what did she mean by the words used in her will when it took effect. It is relevant for this purpose to look at what she had intended to refer to by the words she used at the time the will was executed.

43. Also relevant is the fact that Frances is, and was at all relevant times, seriously handicapped. The will provides for the possibility that Frances might reside in "any house property forming part of my estate". This possibility would depend on whether the executor considered that Frances ought after the testatrix's death continue to reside in the former residence where she and the testatrix had previously resided up to her death, whether it be the residence she had when she executed her will or some replacement residence.

44. The various powers and discretions vested in the plaintiff under clause 6 of the will really do not assist one way or the other. They are consistent with all "houses" forming part of the estate, whether the testatrix's dwelling place or not, or with only the actual dwelling being so regarded.

45. The use of the word "any" preceding "house property" in clause 4 (and clause 6(2)) is inconclusive. It clearly encompasses the possibility that the house the testatrix was living in when she made her will would not be the same house she was last living in when she died.

46. In my opinion, the history of the matter makes it more likely than not that the testatrix intended the term "house property", though do doubt that was not her chosen phrase, to refer to the matrimonial home or any house that was home to her from time to time. The use of the term "household" as part of its context also inclines me to that view. I think that the unit used for letting only would have been regarded by her as merely an investment. No doubt such perceptions would alter with changed circumstances. If, though unlikely, the testatrix had sold the Giles Street unit and re-occupied the Howitt Street unit the latter would have then become her "house property". Of course, if both had been sold and no replacement purchased as a dwelling the will would then provide no less than 2/10 of the net estate for Frances' support.

47. Accordingly, I am satisfied that the questions raised by the plaintiff should be answered as follows:-

(i) The expression "house property" as used in clause 4(a) of
the testatrix's will includes a home unit.
(ii) The expression "any house property forming part of my
estate" includes only such dwelling as was the
testatrix's home and in which she had her household
immediately before her death.

(iii) The home unit owned by the testatrix in Giles Street,

Kingston and further described in the affidavit of the
plaintiff filed herein and dated 10 January 1990 is
included in the expression "house property" contained in
the said will but not the home unit owned by the
testatrix in Howitt Street, Kingston.

48. I also order, pursuant to Order 19 rule 10, that Felix John Purcell be authorized to represent in these proceedings the interests of the beneficiaries under the will other than Frances Anne Purcell.

49. The questions raised and the submissions of each party were entirely proper. The terms of the will were sufficiently attended with doubt for this purpose.

50. Accordingly, I order that each of the plaintiff and the defendants have their costs of these proceedings out of the estate on an indemnity basis.