the Public Trustee of the Australian Capital Territory v Catherine Mary Mcdonald; Anthony Peter Rumble and Marie Josephine Happ [1991] ACTSC 95; (1991) 105 FLR 73 (30 October 1991)

SUPREME COURT OF THE ACT

THE PUBLIC TRUSTEE FOR THE AUSTRALIAN CAPITAL TERRITORY v. CATHERINE MARY
McDONALD; ANTHONY PETER RUMBLE and MARIE JOSEPHINE HAPP
S.C. No. 568 of 1991
Wills, Probate and Letters of Administration
[1991] ACTSC 95; (1991) 105 FLR 73

COURT

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

CATCHWORDS

Wills, Probate and Letters of Administration - construction and effect of testamentary dispositions - what property will pass by particular words and descriptions - particular words and phrases - "goods" - whether "goods" can include both real and personal property - leasehold interest as personal property - whether "goods" includes money in bank accounts.

Wills, Probate and Letters of Administration - construction and effect of testamentary dispositions - ascertainment of testator's intention as expressed or implied by words of will - no new issue of principle.

Re Scott, Deceased, Public Curator of Queensland v. Hass and Another (1957) QSR 507

Kendall v. Kendall (1828) 4 Russ

Avison v. Simpson (1859) Johns 43

HEARING

CANBERRA
30:10:1991

Counsel for the Plaintiff: Mr B. Meagher

Solicitors for the Plaintiff: Vandenberg Reid Pappas and MacDonald

Counsel for the Defendants: Self represented

ORDER

Catherine Mary McDonald be entitled to the whole of the testator's estate for her own use and benefit absolutely.

Marie Josephine Happ be appointed as representative of all persons who would be entitled to take on an intestacy.

The costs of this application be paid out of the estate.

DECISION

This is an application commenced by way of originating summons for the construction of a will. The will is that of William George Gibson (the testator), executed on 7 January 1977. A photocopy of the will is annexed to these reasons and it is not necessary to set it out in full.

2. The testator died on 30 January 1991 and letters of administration with the will annexed were granted by this Court on 1 May 1991 to the Public Trustee for the Australian Capital Territory, the executrix named in the will, Marie Josephine Happ, having renounced probate.

3. The Public Trustee seeks a judicial interpretation of the clause which disposes of all or some of the testator's property in the following terms:
"I give devise and bequeath all goods of which I die possessed to my

neice (sic) Catherine Rumble of 47 Blair Place Watson ACT for her
own use and benefit and to be divided equally with my nephew Anthony
Peter Rumble any money in my account of the Commonwealth Savings
Bank of Australia No. 70636 and Civic Permanent Civic Co-operative
Permanent Building Society Ltd. No. 10039 to be divided 60% to
Anthony Peter Rumble and 40% to Catherine Rumble on reaching the age
of 21 years."

4. The principal questions to be answered are, first, whether the term "goods" applies to the whole of the testator's property, and secondly, the extent to which the estate is to be divided, if at all, between the persons named in the will, namely Catherine Rumble (now the first defendant, Catherine Mary McDonald) and Anthony Peter Rumble.

5. At the time of his death the testator was the lessee from the Commonwealth of Australia (the Commonwealth) of that piece or parcel of land situated at 41 Ipima Street, Braddon and being Block 6 Section 10 Division Braddon, Deposited Plan Number 239, Certificate of Title Volume 722 Folio 13. The lease was granted on 26 May 1978 for a period of 99 years commencing 9 March 1977. The testator's interest in the lease was valued for probate purposes at $145,000. There were amounts standing to the credit of the testator in two bank accounts, totalling $7,331.79. The net value of the estate was $142,692.52.

6. At the time of the testator's death there were eight brothers and sisters living, all of whom were of an advanced age. Three brothers predeceased the testator.

7. The house at 41 Ipima Street, Braddon was originally a government house rented from the Commonwealth by the testator's mother in approximately 1940. The testator took over the tenancy in about 1950. After his mother died in about 1960, the testator continued to live in the house and some time prior to the execution of the will he made arrangements with the then Housing Trust for a loan in order for him to pay the premium for the grant of a lease over the land pursuant to the City Area Leases Act 1936.

8. Enquiries of the Canberra Advance Bank Limited (formerly the Civic Permanent Co-operative Building Society) and the Commonwealth Bank of Australia have revealed that there are no accounts and there have been no accounts in the name of the testator with the reference numbers which are mentioned in the will.

9. The handwriting in the will is identified by Marie Josephine Happ, one of the testator's sisters, as the handwriting of the testator. The will has been written out on a standard printed form easily obtainable from a stationer. The words "I give devise and bequeath" are part of the printed form. It is somewhat artificial to try to ascertain the subjective intention of the testator himself as it relates to the use of those words. However, the use of the words on a simple standard form suggests that the testator intended to dispose of the whole of his estate in a relatively simple way. Moreover, on the face of it the words evince an intention to dispose of his property, both real and personal. A gift by will of specific property is either a devise of realty or a bequest of personalty. Accordingly the phrase "give devise and bequeath" indicates an intention to dispose of both real and personal property. The phrase is therefore, on the face of it, inconsistent with the words which follow, namely "all goods of which I die possessed", because the latter words are, on the face of it, restricted to personal property.

10. However, as Hanger J. observed in Re Scott, Deceased, Public Curator of Queensland v. Hass and Another (1957) QSR 507 at 510: ".... the denotation of the word "goods" is not precise". The word is frequently used in contrast to land, but is on occasions used to refer to property of any kind. I bear in mind that in the present case the will was executed shortly before the lease was granted to the testator, but at a time when he had already commenced negotiations for a grant of the lease.

11. Counsel for the Public Trustee referred me to a number of other cases in which it was held that the word "goods" in a will included real estate. That issue does not arise in the present case because the testator's property did not include real estate. By sub-s.7(1) of the Wills Act 1968 "A person may, by his will, devise, bequeath or dispose of any real property or personal property to which he is entitled at the time of his death, whether he became entitled to the property before or after the execution of his will." By s.4 of the Act "personal property" includes leasehold property.

12. The testator's interest in the lease from the Commonwealth was not a form of real property but of personal property. Indeed the term "chattel real" was once, and still is, used to refer to an interest in leasehold. Having regard to what appears to be the primary intention of the testator to dispose of the whole of his estate, I have little difficulty in concluding that the word "goods" as it is used in the will includes the testator's interest in the lease from the Commonwealth.

13. The next question is whether the word "goods" includes moneys in bank accounts other than those bank accounts specified in the will itself. As the will taken as a whole evinces an intention to dispose of the whole of the estate of the testator, the inclusion of amounts standing to the credit of the testator in bank accounts within the term "goods" clearly gives effect to the testator's intention without doing violence to the language used. There have been several cases in which the term "goods" has been held to include money: Re Scott, Deceased, Public Curator of Queensland v. Hass and Anor, Kendall v. Kendall (1828) 4 Russ., and possibly Avison v. Simpson (1859) Johns 43. In my view, the term "goods" as used in the will includes amounts standing to the credit of the testator in bank accounts.

14. As to the division of the estate, the will is capable of several interpretations. First, it could be interpreted to mean that the whole of the testator's estate is left to Catherine Rumble for her own use and benefit, save that any money standing in the specified accounts is to be divided with Anthony Peter Rumble. Another interpretation is that the whole of the estate is to be divided between Catherine Rumble and Anthony Peter Rumble, save that any money in the specified accounts is to be divided as to 60 percent to Anthony Peter Rumble and as to 40 percent to Catherine Rumble on her reaching the age of 21 years. This interpretation would, in effect, place a full-stop after the first reference to Anthony Peter Rumble. Another possible interpretation is that the whole of the estate is to be divided between Anthony Peter Rumble as to 60 percent and Catherine Rumble as to 40 percent.

15. I have little hesitation in rejecting the third of these interpretations as it ignores the direction that at least some part of the estate is to be divided equally between the two beneficiaries. After consideration I reject the second interpretation, particularly because of the use of the word "and" following the phrase "for her own use and benefit". It seems to me that the testator is clearly trying to distinguish between his property taken as a whole on the one hand and the money standing in the two specified bank accounts on the other. The former is to be left to Catherine Rumble and the latter is to be divided between Catherine Rumble and Anthony Peter Rumble. However, as it transpires that at the date of the testator's death there was no money in either of the accounts specified in the will, the bequest of such money therefore fails. The result is that Catherine Rumble is entitled to the whole of the testator's estate.

16. In accordance with the questions asked in the originating summons, I make the following determinations and declarations and orders:

1. Upon the true construction of the last will
and testament of William George Gibson dated 7
January 1977, the gift of "all goods of which I die
possessed" disposes of all property of the testator
including his interest in the property at 41 Ipima
Street, Braddon being the land in Block 6 Section 10
Division Braddon, Deposited Plan Number 239,
Certificate of Title Volume 722 Folio 13, and
including amounts standing in the name of the
testator at the time of his death being $5,621.58 in
the Canberra Advance Bank Account No. 7383393 (now
Account No. 140132785) and $1,710.21 in the Canberra
Advance Bank Account No.29972 (now Account
No. 139504481), but does not include moneys in
accounts at the Commonwealth Savings Bank of
Australia No. 70636 and Civic Permanent Co-operative
Building Society Limited No. 10039.
2. The bequest of moneys standing in the name of
the testator in an account at the Commonwealth
Savings Bank of Australia No. 70636 and the Civic
Permanent Co-operative Building Society Limited No.
10039 fails for impracticability.
3. Catherine Mary McDonald is entitled to the
whole of the testator's estate for her own use and
benefit absolutely.
4. Marie Josephine Happ is appointed as
representative of all persons who would be entitled
to take on an intestacy.
5. The costs of this application are to be paid
out of the estate.