Brownfield v Earle [1914] HCA 11; (1914) 17 CLR 615 (17 March 1914)

HIGH COURT OF AUSTRALIA

Brownfield Defendant, Appellant; and Earle and Others Plaintiff and Defendants. Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

17 March 1914

Griffith C.J., Barton, Isaacs and Gavan Duffy JJ.

Pigott (with him A. H. Davis), for the appellant.

Weigall K.C. (with him àBeckett), for the respondent Earle.

Schutt, for one of the beneficiaries.

Starke (with him Sproule), for other beneficiaries.

The following judgments were read:

March 17

Griffith C.J.

The testator, who died on 27th February 1900, by his will, dated 26th October 1898, after giving certain immediate legacies to his wife, directed his trustees to convert the residue of his property within two years from his death, and after payment of certain further legacies to invest the residue of the moneys in their hands during the life of his widow, and upon her death or marriage, "hereinafter termed the time of distribution," to convert all investments into money, and after payment of the expense of conversion to divide the residue after conversion into three equal parts. One of such original parts was to be further divided into seven equal shares, as to one of which, to which the second question submitted by the originating summons refers, he gave the direction following:—"I direct my said trustees to divide another of such seven shares among Samuel Brownfield widower of my late sister Ann Brownfield and his sons who shall attain the age of twenty-five years or the survivors of them the said Samuel Brownfield and his sons the share of each son to be paid to him on his attaining that age."

The other six of the seven shares were severally given for the benefit of brothers and sisters and a sister-in-law of the testator or their children, with alternative gifts which it is not necessary to mention.

The will contained the following provision:—"Should all the persons entitled to any of the shares into which the first original part shall have been divided die before the time of distribution I direct that the share or shares of the person or persons so dying shall be divided among my brother and sisters in equal shares the child or children of any deceased brother or sister taking the share to which his her or their deceased parent would have been entitled if alive."

The learned Judge thought that the gift failed as infringing the rule against perpetuities, on the ground that it was a gift to a class which included any sons whom Samuel Brownfield might have by a second marriage.

In construing a will the Court must have regard to the facts as they were present to the mind of the testator.

In the present case the facts relevant to this gift are that in 1857 Samuel Brownfield married the testator's sister Ann, who died in December 1895, and that in June 1897, seventeen months before the date of the will, he married a second wife. By his first marriage he had five children only, all sons, and all of whom had attained the age of twenty-five years at the testator's death. He had no children by the second marriage. He lived in England, while the testator lived in Australia, and it does not appear whether the latter was aware of his brother-in-law's second marriage. Mr. Pigott contended that the words "his sons" ought to be construed as "my nephews his sons," that is, the nephews of whom he knew, and whose mother, his sister, was dead. In support of this contention he referred to the case of Stopford v. Chaworth[1], in which Lord Langdale M.R. held, upon the context of the will and the facts, that under limitations in a will to a married woman, her husband and children, the children of a second husband who married her after the testator's death, took nothing. Mr. Pigott also pointed out that if the words "his sons" include possible sons by a second marriage, the testator must have intended to postpone the distribution of the fund in question until all such sons should have attained the age of twenty-five or died under that age, and that in the meantime Brownfield and his five living sons were not to receive any payment under the will, and contended that, having regard to the age of Brownfield and his sons at the date of the will, such an intention is not only improbable but inconsistent with the positive direction that the division of the fund is to be made at the death of his widow, and that the share of each son is to be paid to him on his attaining twenty-five, whereas the suggested construction might postpone the payment to the attaining of various ages from fifty upwards. He further pointed out that the final gift over, which I have quoted, which is dependent upon the death of "all the persons entitled" to any of the shares into which the first original part is divided before the time of distribution, i.e., before the death of his widow, appears to assume that all the persons who could be entitled to share in the fund must be determined before that event, so that when it occurs the classes of persons to take are definitely closed.

Apart from these considerations I think that the primâ facie meaning of the words "to divide among Samuel Brownfield the widower of my sister Ann Brownfield and his sons who shall attain the age of twenty-five years or the survivors of them the said Samuel Brownfield and his sons," followed by words directing immediate payment on the death of the testator's widow, is to direct a division amongst designated living persons provided that they survive the widow and attain twenty-five. The other matters to which I have referred strengthen this view. On the whole, therefore, I am of opinion that the Brownfield gift is not a gift to a class, but a gift to designated living persons, and that in the events that have happened it is divisible amongst the five sons who survived the testator's widow.

The appeal should therefore be allowed.

Barton J.

As to the Brownfield bequest I agree in thinking that it is a gift to specified persons on a contingency as to survivorship and another as to age, and that, as Samuel Brownfield died while the testator's widow was alive, the seventh share of the first "original part" is to be divided among his five sons, the survivors at the time of distribution, who had attained the age of twenty-five. Samuel Brownfield is named as the "widower of" the testator's "sister Ann Brownfield;" if the possible sons of a second marriage were to be included, none such having been born at the testator's death, then the five sons by the first marriage, aged twenty-five years and upwards, would have had to wait another twenty-five years at least before they could receive anything, which does not accord with the testator's direction that each son was to be paid his share on attaining twenty-five. These circumstances, together with the language of the bequest itself, indicate in my view that the sons intended were the sons of the marriage with Ann Deane. There was a nexus of affinity between the testator and the sons of Samuel Brownfield by his marriage with the testator's sister, but there is nothing to show that the testator knew or had ever seen Elizabeth Reeves, the second wife, whom Brownfield, it seems, married in England; or that he even knew of her existence.

In addition to Stopford v. Chaworth[2], there was cited the case of In re Parrott[3], which gives some assistance as to construction.

I may point out that if there is any obscurity or ambiguity in construction as to whether the gift is to a class some of whom may be outside the prescribed limit, or to designated persons, weight may be given to the consideration that "it is better to effectuate than to destroy the intention": See per Lord Selborne L.C. in Pearks v. Moseley[4].

I am of opinion that this appeal should be allowed. My answer to the question is that the five sons of Samuel Brownfield deceased, in the will mentioned, are entitled to the share mentioned.

Isaacs Gavan Duffy JJ.

The Brownfield bequest may, without obvious inaccuracy or straining of the primary meaning of the testator's words, be construed as extending to all the sons of Samuel Brownfield born or to be born, or as limited to all his sons born of Ann Brownfield.

The question is, of course, What do these words mean as written, not what did the testator intend to write?

On the whole we come to the conclusion that the more limited meaning is to be attributed to the words used. There is a class gift, and the connecting link constituting the class is the expressed relationship to the testator through his late sister Ann. Her children, and not children of Samuel Brownfield by a future wife, would be the natural objects of the testator's bounty. The description of Samuel as "widower of my late sister Ann Brownfield" may, and in our opinion does, indicate not merely a description of Samuel, but also the tie regarded by the testator as connecting the class.

Then, knowing as we do that Samuel's children were sons only, the impression is strengthened. In some capacity or character, Samuel is the nucleus, so to speak, of the class. If it were merely his personality that is to be regarded, one would expect the word to be "children," but if it be, as we think it is, that it is his status as widower of Ann that is the governing consideration, then the word "sons" means "sons" of that marriage. The difficulty as to the rule of perpetuities therefore does not arise as to this bequest.

Appeal allowed. Question answered as indicated. Costs of all parties, including costs of parties who have not appealed, to be paid out of the estate.

Solicitors, for the appellant, Blake & Riggall.

Solicitors, for the respondents, Hedderwick, Fookes & Alston; J. M. Smith & Emmerton; Westley & Walker.

[1] [1845] EngR 621; 8 Beav., 331.

[2] [1845] EngR 621; 8 Beav., 331.

[3] 33 Ch. D., 274.

[4] 5 App. Cas., 714, at p. 719.