Jamieson v Christenson [1907] HCA 43; (1907) 4 CLR 1489 (16 September 1907)

Jamieson Defendant, Appellant; and Christenson and Another Plaintiffs, Respondents.

The question for determination in this case is whether a widower is entitled to the whole of the estate of his deceased wife who died intestate, and which amounts to less than £1,000. The appellant claims the whole of the estate by virtue of the Intestates' Estates Act 1896, which is entitled "An Act to amend the law by making better provision for the widows of certain intestates in the distribution of such intestates' property." That Act by sec. 1 provides that when the net value of the estate of a man who dies intestate is less than £1,000 his widow, if any, shall take the whole of it, and by sec. 2 that, if the net value is more than £1,000, she shall have a charge upon the whole estate to the extent of £1,000, and that the residue is to be divided according to the ordinary law as it stood before the Act. There is nothing in that Act in terms relating to a widower, but the appellant contends that he is entitled to have that Act read as if it referred to widowers as well as to widows, and he rests that argument upon sec. 25 of the Married Women's Property Act 1890, which is a re-enactment of an identical provision in the Married Women's Property Act 1884. That section provides that:—"The estate real and personal as to which any married woman dies intestate after the commencement of this Act shall subject to the payment of the duties and fees payable under Part V. of the Administration and Probate Act 1890 or any subsisting statutory modification thereof and of her funeral administration or testamentary expenses and debts in the ordinary course of administration be distributable between her husband and her children or next of kin in the like manner and proportions in which the estate real and personal as to which a married man dies intestate is distributable between his widow and his children or next of kin."

It is contended that that section makes the estate of a married woman who dies intestate divisible in exactly the same way as the estate of a married man who dies intestate under the law for the time being in force, that is, that the Act applies to all persons who die after the commencement of the Act, and that it is to continue to be the law, so that, whatever the law may be in respect of the estates of married men, it shall also be the law with respect to the estates of married women.

That argument is founded upon the words being in the present tense—"is distributable" between the widow and children or next of kin. I was at first disposed to think that there was a good deal of force in that argument, but, on further consideration, I am disposed to think that is not the proper construction.

When the Act of 1884 was passed, the law was that, as to a married woman's real estate, if she died intestate, it was divisible in the same manner as the personal estate of a married man, substituting husband for wife. The widower, if any, took one-third or one-half according as there were or were not children, and the children or next of kin took the remainder. But, with regard to personal estate of a married woman, it all went to the husband. This Act, therefore, changed the law and laid down a new rule for the distribution of the estates of married women, and laid it down by reference to the existing law as to the distribution of the estates of married men. I do not see in the section any words of futurity with respect to the distribution of the estates of married men, and, having regard to the fact that the section refers to future alterations of another law mentioned in it, I think that it is at least very doubtful whether any future alteration of the law with respect to the distribution of the estates of married men is to be taken to apply. The learned Judge from whom the appeal is brought thought that the section embodied future alterations of the law with respect to the estates of married men.

But, assuming the section to be open to that construction, still I am of opinion that the appellant has not brought himself within sec. 1 of the Intestates' Estates Act 1896. I can see nothing in that Act suggesting an intention to benefit widowers. It is a law to make better provision for the widows of certain intestates. That of itself is a very strong reason for not giving it an extended operation. But I do not think that, even if the wider interpretation were given to sec. 25 of the Married Women's Property Act 1890, the Intestates' Estates Act 1896 is a law which alters the "manner and proportions in which the estate real and personal as to which a married man dies intestate is distributable between his widow and his children or next of kin," within the meaning of sec. 25 of the Married Women's Property Act 1890.

The Intestates' Estates Act 1896 provides that the widow of a designated person shall have a charge on the whole of his estate to the extent of £1,000, and, if the estate does not exceed £1,000, that she shall take the whole of it. By sec. 3 it is provided that "The provision for the widow intended to be made by this Act shall be in addition and without prejudice to her interest and share in the residue of the estate of such intestate remaining after payment of the sum of One thousand pounds in the same way as if such residue had been the whole of such intestate's estate and this Act had not been passed." It appears to me that the effect of that Act is to take £1,000 out of the estate for the benefit of the widow, and to leave the rest of the estate to be divided according to the law in force for the time being in relation to the distribution of the estates of intestates. For these reasons I think the judgment appealed from was right and that the appeal should be dismissed.

I also am of opinion that the appeal fails. I am the more inclined to adopt the interpretation placed by Mr. Starke upon sec. 25 of the Married Women's Property Act 1890 because I think the words "is distributable" have a simple and natural meaning, and I see no reason for placing any other meaning upon them. "Is" primarily means "is now," and not "may from time to time be." In like manner the Intestates' Estates Act 1896 has also its ordinary and natural meaning, as applying in favour of widows only, and I cannot see any reason to doubt that the intention so expressed is the intention with which that Act has been passed. That being so, the appellant's claim must fail.

I am of opinion that the appeal should be dismissed. I agree with Cussen J. that the provisions of sec. 25 of the Married Women's Property Act 1890 do not apply to such an enactment as the Intestates' Estates Act 1896 at all. Sec. 25 provides that the free surplus of the estate of a married woman, as to which she dies intestate, shall "be distributable between her husband and her children or next of kin in the like manner and proportions in which the estate real and personal as to which a married man dies intestate is distributable between his widow and his children or next of kin." At the time of the Act, 1890, the manner and proportions in which a married man's estate was distributable were settled by the Statutes of Distribution; and if he left a widow and no children, the widow would take half and the next of kin half. Then came the Act of 1896, which does not prescribe the "manner and proportion" in which a man's estate is "distributable between his widow and his children or next of kin"; but gives the whole estate, if it does not exceed £1,000, to the widow. The words of sec. 25 do not fit the case, either taken literally or in their spirit. The Act of 1896 is headed "An Act to amend the law by making better provision for the widows of certain intestates in the distribution of such intestates' property." It is an Act obviously designed to meet the peculiar needs of widows when the wage earner has gone, and to prevent distribution between the widow and next of kin—not to prescribe the manner and proportions of distribution between them. The only doubt I feel in the case is as to the dictum of the learned Judge, that "primâ facie the Act (Married Women's Property Act) is to be read as if speaking at the moment when the occasion for its application arises"[1], so as to be applicable to Statutes passed after 1890. I know of no such presumption. The case of Bird v. Adcock[2] points in the other direction. The words of sec. 25 are "is distributable" not "may be distributable," not "is from time to time distributable." Moreover, this very section, when alluding to the duties under the Administration and Probate Act 1890, refers also to "any subsisting statutory modification thereof"—tending to show, on the principle of expressio unius exclusio alterius, that, when using the words "is distributable" in the latter part of the section, the legislature did not mean to incorporate future statutory modifications. So that, even if after 1890 there were a statutory alteration of the Statutes of Distribution, I am strongly inclined to think, as the learned Chief Justice has said, that sec. 25 would not apply to the Statute as altered. But I refer to this matter merely to avoid being treated as accepting, by silence, the contrary view; and I cordially concur in the decision of the learned Judge.

Davis. The costs of the appeal should be paid out of the estate. The appellant is a trustee, and should not be compelled to pay costs except for misconduct. Amos v. Fraser[3]; In re Jones; Christmas v. Jones[4].

[Griffith C.J. That principle does not apply to the costs of an appeal. Here the appeal is for the appellant's own benefit. The costs might be paid out of the estate if the respondents consented. This is certainly a case in which it was desirable that the opinion of this Court should be obtained.]

We do not see any sufficient reason for departing from the ordinary rule. The appeal will be dismissed with costs.

[1] (1907) V.L.R., 103, at p. 105; 28 A.L.T., 138, at p. 139.

[2] 47 L.J.M.C., 123.

[3] [1906] HCA 57; 4 C.L.R., 78.

[4] (1897) 2 Ch., 190, at p. 198.

High Court of Australia

Jamieson v Christenson [1907] HCA 43; (1907) 4 CLR 1489 (16 September 1907)

HIGH COURT OF AUSTRALIA