Redman v Hage [1914] HCA 67; (1914) 18 CLR 640 (16 November 1914)

HIGH COURT OF AUSTRALIA

Redman Defendant, Appellant; and Hage and Others Defendants and Plaintiffs, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

16 November 1914

Griffith C.J., Isaacs and Powers JJ.

Leverrier K.C. and Maughan, for the appellant.

Knox K.C. (with him J. A. Browne and J. D. Fitzgerald), for the respondent Isabella Hage, who represented all persons interested in having the question answered in the affirmative.

R. H. Long Innes and C. E. Weigall, for the respondent trustees.

Griffith C.J.

In this case I agree with the conclusion of the Chief Judge in Equity, and I confess that I am unable to entertain any doubt on the matter. The testator was a solicitor practising in Sydney. By his will, made in 1860, he gave an interest in property in Liverpool Street to three brothers and two sisters as tenants in common; then gave his real property in George Street North to his trustees in trust to permit his wife and one of his sisters to enjoy the rents thereof for a period of seven years after his death, and after that period in trust for two of his brothers and their issue. He then gave a farm at Cook's River, which is the property now in question, to his trustees in trust "to permit my said wife to enjoy the same free from the debts or control of any future husband and for her sole use without the power of disposition except by seven years' lease or any less period for her natural life" with remainder to his brother Robert Redman in fee. He then gave a farm to his brother John Redman for life with remainder to his brother Joseph Redman. Then he gave three small farms to his trustees in trust for one of his sisters absolutely. The residue of his real property he devised to his trustees in trust to sell it by auction and out of the proceeds to pay off a mortgage on the George Street property and to divide the balance equally between his wife, her sister, his three brothers and his two sisters, so that his wife took a one-seventh interest. All his real property was therefore disposed of between his wife, his brothers and sisters and a sister-in-law. Two years afterwards he made this codicil, the construction of which is now in question. By it he first gave a freehold house and land to his wife, and then after charging certain real property with the payment of a mortgage debt and devising property in George Street to his wife, two of his brothers and one of his sisters, he said:—"At the death of my said wife all property real taken under this or my former will to be devised by her in any way she pleases to all or any one or more of my brothers and sisters she may think proper or on their death to any of their children."

The question is whether the farm at Cook's River, which by his will he had given to his wife for life, with remainder to his brother Robert, is included in these words.

The appellant contends that the gift to Robert Redman in remainder is a clear and distinct gift which cannot be cut down except by equally clear words. The real question is whether the testator has by his codicil distinctly indicated an intention to revoke the gift to Robert. The first point to be observed is that the testator clearly intended the direction in his codicil to operate upon property taken under his will as well as upon property taken under the codicil. The Supreme Court in 1884 decided that the words in the codicil cut down the wife's interest in the property devised to her by the codicil to a life interest, but that decision did not touch the question as to their effect upon the property now in question.

The next point that occurs is whether the words as applied to property mentioned in the will indicate an intention to give to his wife something more than she would have under the will, or to take away something which he had given to her by the will. Do the words operate in derogation of or in addition to the gift made by the will? There were only three properties mentioned in the will as to which the words could have any effect: first, the gift of the George Street property in which his wife had a half interest for seven years—as to this property it is highly improbable that he could have intended them to operate; secondly, the Cook's River property; and, thirdly, the one-seventh interest in the proceeds of his residuary estate after payment of the mortgage debt of £1,500. In the case I have already referred to the Supreme Court also decided that the direction in the codicil did not apply to that gift. The question now, therefore, is whether the words apply to the Cook's River property given to the wife for life. The words are "all property real taken under this or my former will." It seems to me that the natural interpretation of those words is "all property real of which my wife is in possession under my will or entitled to possession under this codicil." The description "all property real taken" is, I think, a designation of the specific property upon which the gift is to operate, and has no reference to the quantity of the estate taken.

I agree with the learned Chief Judge in Equity that the words cannot mean all real estate given to anybody by the will or codicil. That is not their natural or reasonable meaning. I think that they must be limited to real property taken by his wife, that is, property of which at the time of her death she had or was entitled to have enjoyment under the will or codicil.

The appeal must be dismissed.

Isaacs J.

I agree. I think that according to the rule laid down in Randfield v. Randfield[1], especially as stated by Lord Wensleydale, you must have reasonably clear words to defeat a prior absolute gift. Applying that rule here you have those reasonably clear words, and for the reason given by the Chief Justice I agree that the appeal should be dismissed.

Powers J.

I concur.

Appeal dismissed. Respondents' costs as between solicitor and client to be paid out of the estate.

Solicitor, for the appellant, S. M. Stephens.

Solicitors, for the respondents, Hughes & Hughes; Minter, Simpson & Co.

[1] [1860] EngR 583; 8 H.L.C., 225.