Butler v Trustees Executors & Agency Co Ltd [1906] HCA 11; (1906) 3 CLR 435 (29 March 1906)

Butler Defendant, Appellant; and The Trustees Executors and Agency Co. Ltd. and Others Plaintiffs and Defendants, Respondents.

In this case, which is an appeal from the Full Court of Victoria dismissing, by majority, an appeal from a judgment of Hood J., this Court is called upon to construe the will of one Tobias Butler who died in 1871. The learned Judge of first instance and the majority of the Full Court thought they were bound by the rule of construction stated in Jarman on Wills, 5th ed., at p. 471, in these words:—"It has been long settled that a devise of real estate to A. and his heirs, or, which would be the same in effect, to A. indefinitely, and in case of his death under twenty-one, or without issue, over, the word or is construed and, and, consequently, the estate does not go over to the ulterior devisee, unless both the specified events happen."

Holroyd J., the dissenting Judge, thought that any such rule, if it ever existed, is at any rate very much weakened by later decisions of Courts of the highest authority, and he thought that the paramount rule is to ascertain from the will itself the intention of the testator. I am not certain that the majority of the Court intended to express any dissent from that rule, and I feel almost sure they did not. For it is clear, as stated in the case of Re Coward; Coward v. Larkman[1], cited by Dr. McInerney, that every rule of construction may be excluded by the context—it is at best only to be applied where the context does not show a contrary intention. It is therefore necessary in every case to construe the whole will to see what the testator meant.

At the same time there are certain recognized rules of construction. Indeed, it cannot be denied that so long as it is the function of Courts of Justice, which are supposed to consist of competent lawyers, to interpret wills, they must apply some rules of construction in exercising those functions, and those rules are applied not only to wills but to all other solemn documents. I will mention three, each of which is applicable to the present case. One is the rule which I quoted in argument and which is stated in Jarman on Wills, 5th ed., at p. 443:—"Where there is a clear gift in a will it cannot afterwards be cut down except by something which with reasonable certainty indicates the intention of the testator to cut it down." Another rule is that in considering wills the Court always favours the vesting of an estate.

A third rule of construction is that relied on in this case, the existence of which can hardly be denied. It is stated in Jarman on Wills, 5th ed., p. 471, in the way I have read, and in reference to that rule Willes J. in Johnson v. Simcox[2], said:—"We think that the reading or as conjunctive, in such limitations as the present, is so firmly established, if not so founded in good sense, that the construction which we adopt could not be more imperative upon us if, in the will under consideration, the word and had stood literally in the place of or."

As I have said, all these rules are to be applied in the absence of a context showing a contrary intention. I proceed then to refer to the words of the will. The testator gave all his real and personal estate to his trustees upon trust for the benefit and support of his wife and children, it being his will that the income should be paid to his wife during her widowhood for the maintenance of herself and his children, and after her death or remarriage should be applied by the trustees to the maintenance of of his children during their minority. Then the will proceeded:—"And upon my eldest son Thomas Butler becoming of age it is my will that the whole of my said estate should belong to and be vested in him, and I further charge my said eldest son Thomas Butler to properly maintain and support all my other children out of the proceeds of my said estate until each of them shall become of age respectively."

Stopping there, there is a clear gift of the whole estate to Thomas Butler on his becoming of age, and the fact that, having attained that age, he did not get the beneficial enjoyment of the property until the death of his mother, would not make any difference as to the vesting of the estate in him. If the will stopped there, there would be no difficulty, because Thomas Butler did attain the age of 21. But the will continued—and these are the words upon which the question arises—"And should my eldest son Thomas Butler die before becoming of the age of twenty-one years or unmarried or without male issue then it is my will that my said estate should belong to and be vested in my second son George Butler." Now, it is said that, if the words are taken literally, in the event of Thomas Butler dying at any time a bachelor, or, having married, dying at any time without male issue, the estate previously given would be divested, that is to say, that, although the estate was to vest in him on his attaining the age of 21, it was not to vest in him absolutely, but was liable to be divested on the happening of either of those events. There is at once an apparent contradiction between two provisions of the will, and it is necessary so to construe the will as, if possible, to reconcile those two provisions. There are the words vesting the estate in Thomas Butler on his attaining the age of 21 years, and there is the rule that when an estate is once vested there must be clear words to divest it. Are the words which are said to divest the estate clear? In the first place we are confronted with a difficulty, viz., that in a great number of cases words almost identical have been construed in a particular way, that is to say the words "dying under the age of 21 or without issue" in such a collocation have been construed as meaning "dying before attaining the age of 21 and without issue." If words have for a long time received a particular construction, it may not unreasonably be assumed that the testator meant to use them in that sense. Assuming that grammatically the words include the event of death at any time unmarried or without issue, the question is, is that what the testator meant, or did he mean what those words have been held in many cases to mean? There is then at once an ambiguity. An estate has been given, and it is difficult to say that that estate has been cut down by clear words.

But the will does not stop there. We must consider what the subsequent gifts were. It says that on those events happening "it is my will that my said estate shall belong to and be vested in my second son George Butler." If Thomas Butler died under 21, George Butler would necessarily be an infant, because he is younger than Thomas Butler, so that it appears from the last words I have read that the intention of the testator was that the question whether George Butler should take or not was to be determined before he himself had attained 21. This view is strengthened because the will goes on to say that, although the estate vests in George Butler before he attained 21, "upon my said second son George Butler dying before becoming of the age of twenty-one years or unmarried or without male issue," then something else is to happen. So that the question whether George Butler was to have an estate which was to go over if he died under the age of 21 years was to be determined before he attained that age. The condition, therefore, that the testator is dealing with is a condition that must happen before George Butler attains 21. But the question whether the estate of Thomas Butler was to be taken away from him even if he lived to be 80 years old, but died without leaving male issue, could not be determined before George Butler attained 21, which would happen in a few years.

The subsequent gifts are gifts to the other two sons of the testator similar to that to George Butler, with a final gift over, if the fourth son should die "before becoming of the age of twenty-one years, or unmarried, or without male issue," to the testator's daughters in equal proportions. Then follow other words:—"I further charge any of my said children who under this my will shall inherit my said estate to properly maintain and support my other children out of the income of the said estate until each of them shall become of the age of twenty-one years respectively." So that the testator contemplated that one at any rate of his sons would probably inherit the estate, which would be liable in his hands to a charge in favour of his other children until the youngest attained 21, and the charge would then cease, and the directions of the will would thereupon come to an end. I think it is apparent that the testator contemplated that on any son attaining 21 and taking the estate, the trusts of the will would be completely determined, and that the question of the person entitled to the estate would be finally ascertained.

Therefore, upon the construction of these provisions it seems to us that so far from the rule laid down in Jarman on Wills, and by Willis J. in Johnson v. Simcox[3], being excluded, the Court would be compelled to come to the same conclusion without the application of that rule. It is no doubt true, as stated by Jessel M.R. in Morgan v. Thomas[4], that "or" never does mean "and," unless there is a context which shows it is used for "and" by mistake. What we have to do is to give effect to the intention of the testator. But by treating "or" as used as a mistake for "and," and used as synonymous with "and," you give a complete and homogeneous meaning to the whole will. The same result would be obtained in this case by omitting the word "or" where it first occurs in the sentence "dying before becoming of the age of 21 years, or unmarried, or without male issue," and reading it "dying before becoming of the age of 21 years, unmarried or without male issue." But the conclusion we arrive at is that we are compelled by the subsequent gifts to say that the provision under which George Butler was to inherit was to take effect before George Butler became twenty-one, and was then to be exhausted. That being so it is impossible to hold that it referred to the death of Thomas after attaining twenty-one. It is equally impossible to hold that the provision cuts down a vested estate given in plain words by the preceding clause.

For these reasons we are of opinion that the construction put upon the will by the Supreme Court was correct.

We desire to add that to our minds the arguments of the Judges in Fairfield v. Morgan[5] are conclusive, as a matter of reasoning, to induce us to come to the same conclusion apart from the special provisions of this will.

[1] 57 L.T., 285.

[2] 31 L.J. Ex., 38, at p. 40; 7 H. & M., 344.

[3] 31 L.J. Ex., 38.

[4] 9 Q.B.D., 643, at p. 646.

[5] 2 B. & P.N.R., 38.

High Court of Australia

Butler v Trustees Executors & Agency Co Ltd [1906] HCA 11; (1906) 3 CLR 435 (29 March 1906)

HIGH COURT OF AUSTRALIA