Jenkins v Stewart [1906] HCA 35; (1906) 3 CLR 799 (8 June 1906)

Jenkins and Another Defendants, Appellants; and Stewart and Others Plaintiffs and Defendants, Respondents.

This is an appeal from the decision of àBeckett J. upon the construction of a somewhat peculiar will. It is one of those cases in which different minds may reasonably come to different conclusions. But we are called upon to exercise our own individual judgments, and in doing so we differ with reluctance from a Judge of such great experience in these matters as àBeckett J. The testator was a farmer living at Roseneath, near Warrnambool. He had two sons, Donald and Dugald, and five daughters, of whom two were married. By his will he first directed that his debts should be paid. Then he specifically bequeathed to his wife all the furniture and household goods in and about his dwelling house. The will then proceeded: "I give devise and bequeath one-fourth of all my other real and personal estate unto my son Donald Halley Jenkins and also the sum of one hundred pounds, and I direct that the one-fourth share of my said son Donald Halley Jenkins shall revert to my living son or daughters or their children in equal shares in the event of my said son Donald Halley Jenkins dying without leaving a wife or lawful issue. I direct that all my real and personal property (except as aforesaid) shall be sold after my decease and that the proceeds thereof shall be divided as follows, one-fourth thereof to my said son Donald Halley as hereinbefore directed." He then gave legacies of £100 each to his wife and his three daughters Annie Sinclair Jenkins, Kate Maud Jenkins, and Nellie Cope Jenkins, and directed that such legacies should be paid within six months of his decease. He next gave an annuity of £100 to his wife while she should remain at Roseneath, to be increased to £150 if she should live elsewhere. The will then proceeded:—"I give devise and bequeath all the rest and residue of my real and personal property and the proceeds of the sale thereof as aforesaid equally between my son Dugald McKellar Jenkins and my daughters Agnes Mann, the wife of James Stewart, Jessie Allan the wife of Edward Hill of Colac, Annie Sinclair, Kate Maud, and Nellie Cope, and I direct that the shares of my said daughters Agnes Mann, Jessie Allan, Annie Sinclair, Kate Maud, and Nellie Cope shall be paid to them within twelve months after the decease of my said wife, and that in the meantime their said shares shall be invested by my trustees for their benefit and that the income thereof shall be paid to them for their sole and separate use: And I direct that the share of my said son Dugald McKellar shall revert to my living daughters or their children in equal shares in the event of the said Dugald McKellar dying without leaving a wife or lawful issue." The testator there uses the same words as to Dugald's share as he had used as to Donald's share. The will also conferred a power on the trustees at their discretion to carry on his farm or any other business he might be engaged in at the time of his death, and to permit his wife and children to reside in his dwelling house.

Upon that will the question submitted to us is, what shares do Donald and Dugald respectively take in the estate of the testator? The gifts to Donald and Dugald, though they are of different amounts, are subject to the same direction, viz., that the share is to "revert," in the one case, to the testator's living son or daughters or their children in equal shares, and in the other case, to the testator's living daughters or their children in equal shares, in the event of the particular son dying without leaving a wife or lawful issue. The first question is whether Donald's share is vested absolutely in him on his surviving the testator, or whether he has a vested estate liable to be divested in the event of his dying ultimately without leaving a wife or lawful issue. Strictly and grammatically, of course, the words of the gift imply that the contingency will happen whenever Donald dies, and the case of O'Mahoney v. Burdett[1] establishes that, if no more appears in the will, the grammatical construction must be applied in construing those words. But that construction may be excluded by the context, as in every other case. It is undesirable in the interpretation of wills to have recourse to fixed rules of construction any further than is necessary. But there are two principles applicable to the interpretation of wills the construction of which is open to doubt, that may afford some aid in the present case. One is that the Courts always lean towards a construction in favour of vesting, and the other is that the Courts always lean against a construction that will bring about an intestacy, if any other construction is open. According to the respondents' contention, that is, if Donald's share does not vest on the death of the testator, there would be an intestacy if he were to survive his brother and his sisters, and die without leaving a wife or children. That of itself suggests that there is some doubt whether that is what the testator actually meant. Then, if we look to the context for an explanation, we find that the testator directs all his real and personal property to be sold after his decease and divided. That means, primâ facie, immediately or as soon after his death as it conveniently can be sold, as was said by James L.J. in Olivant v. Wright[2], in reference to similar words. So that that direction standing alone would suggest that as soon as is practicable after the testator's death the property was to be sold, and that Donald was then to receive his one-fourth share. In the same case, Mellish L.J. said[3]:—"I think it is quite clear that by the word divided the testatrix meant that the executors were actually to divide the property, and that the corpus of the property, real and personal, was to be actually handed over and given to the children or their issue, as the case might be." We have here, then, an indication of a construction different from the strict grammatical construction, viz., that the testator intended that the money should be handed over to Donald if he was then in existence to receive it. An argument was suggested, founded on the word "revert" which means literally "go back." But it cannot mean that in this will, because it had never been the property of those to whom it was to "revert," and could not, therefore, strictly speaking, revert to them. The word can only be read as "pass" or "go over." Used in that sense it does not throw any light upon the real intention of the testator.

Then it is said that the direction to pay an annuity to the widow indicates that the property is not intended to be realized and divided at the testator's death. But the annuity is to be paid out of the other three-fourths of the estate and not out of Donald's one-fourth share. With respect to Dugald's share that answer does not apply. Under these circumstances, and if there were no more in the case, it would be difficult to say what is the proper construction of the will.

But the testator two and one-half years afterwards made a codicil to his will. By it he gave legacies of £100 each to his two married daughters and his son Dugald McKellar Jenkins, and directed that such legacies were in no way to affect their shares or interests in his residuary estate "as hereinbefore provided for in my will," using the word "hereinbefore" as if the will were a part of the document he was then writing. He further gave a legacy of £100 to his son-in-law James Stewart, and directed that all the legacies given by the codicil should be paid within six months of his decease. Then the codicil contained these words:—"And it is my will and I hereby direct that in the event of any of the said legatees predeceasing me without leaving lawful issue then the share or shares to which they would have been entitled if they had survived me or died leaving lawful issue shall go and belong and be equally divided among my surviving children or their lawful issue in equal shares, but so that no child or children of any of my said sons or daughters shall take more than his her or their parents would have taken if he or she had been living; and in all other respects I ratify and confirm my said will."

In that sentence the testator refers to the gift which he had made in his will to Dugald, and speaks of his share as a share to which Dugald would have been entitled if he had survived the testator or had died leaving lawful issue, obviously meaning if he had died in the life-time of the testator leaving lawful issue. The testator therefore thought that he had left a share to Dugald upon such conditions that if he survived the testator he would take it absolutely.

If the words had been "had survived me and died leaving lawful issue," no help could have been got from the codicil. But that being the construction the testator has by his codicil placed on the gift to Dugald, we have high authority for the proposition that where a will is obscure we may have recourse to the codicil to interpret it. In the case of Darley v. Martin[4], Jervis C.J., in delivering the judgment of the Court said:—"And, as to the effect of the codicil, it was argued, that an erroneous reference in a codicil to the dispositions of the will, cannot constitute a new bequest in opposition to the will: and Skerratt v. Oakley27 T.R., 492., was relied on. But it appears to us that the argument with respect to the effect of the codicil, when rightly considered, is not that the will is at all revoked or varied by the codicil; but, rather, that the will and codicil being all one testament, the language of the will may be interpreted by that of the codicil; and that, accordingly, the gift over in the will, in default of such issue, being capable of importing a bequest over on failure of issue living at the death, it ought to be inferred that the testator employed it in that sense, because, in the codicil, he refers to it as if it were a gift over in default of his daughter's leaving no issue, which, as regards personalty, is tantamount to a gift on failure of issue living at her death." That case was followed in Grover v. Raper[6] and In re Venn[7].

Therefore we think we may have recourse to the codicil to clear up the obscurity in this will. There clearly is an obscurity since the words are, having regard to the context, capable of two constructions. Doing so, we find that what the testator intended as to Dugald was that, if he survived the testator or died during the testator's lifetime leaving lawful issue, his share should be vested. Finding that that was his intention as to Dugald, how is it possible to say that, when the testator used the same words with regard to Donald, he intended something different?

On the whole, therefore, we have come to the conclusion that the real intention of the testator as expressed by these two testamentary documents was that the shares of both Donald and Dugald should be vested.

The result therefore is that the order of àBeckett J. will be varied, and the questions will be answered as follows:—

Donald takes a vested interest in one-fourth of the whole estate, other than the furniture and household goods specifically bequeathed, together with the legacy of £100, which is payable out of the remaining three-fourths.

To be paid immediately after sale.

Dugald takes a vested interest in one-sixth of the residue of the remaining three-fourths after payment of the legacies and annuity.

To be paid immediately after the sale, subject to provision for the payment of the annuity.

Appeal allowed. Order varied. Questions answered as above. Costs of all parties as between solicitor and client out of the estate.

Solicitors, for respondents, G. S. Mackay, Warrnambool; A. A. Sinclair, Melbourne.

[1] L.R. 7 H.L., 388.

[2] 1 Ch. D., 346, at p. 349.

[3] 1 Ch. D., 346, at p. 349.

[4] [1853] EngR 705; 13 C.B., 683, at p. 690.

[5] 7 T.R., 492.

[6] 5 W.R., 134.

[7] (1904) 2 Ch., 52.

High Court of Australia

Jenkins v Stewart [1906] HCA 35; (1906) 3 CLR 799 (8 June 1906)

HIGH COURT OF AUSTRALIA