Mocatta v Mocatta [1915] HCA 29; (1915) 19 CLR 515 (19 April 1915)

HIGH COURT OF AUSTRALIA

Mocatta Appellant; and Mocatta and Others Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

19 April 1915

Griffith C.J., Isaacs and Rich JJ.

Loxton K.C. (with him W. A. Parker), for the appellant.

Knox K.C. (with him R. H. Long Innes), for the respondents, were not called upon.

Griffith C.J.

The only question raised on this appeal is as to the construction of certain words in a will made in 1858. The testator directed that during the lives of all his sons (except James and Francis) and his daughters, the trustees of his will should pay the annual rents and profits of certain land "to and amongst all and every my sons and daughters (except my said sons James and Francis) who shall be alive and the executors or administrators of such of them (except my said sons James and Francis) as shall happen to die the representatives of any deceased son or daughter to receive the part or share to which such son or daughter if living would be entitled."

It is contended by the appellant that the words "the representatives of any deceased son or daughter" do not mean the executors or administrators to whom the annual rents and profits were directed to be paid, but some other persons, children or next of kin, or some of them.

The general rule is that the term "representatives" when used in a will means, in the absence of context to the contrary, executors or administrators of the person represented. The law is summed up by Stirling J. in In re Ware; Cumberlege v. Cumberlege-Ware[1]. The only question in this case, therefore, is whether there is a context which indicates that the testator intended that the word was not to be taken in its primary legal sense. It is not necessary to refer to the different provisions of the will. It is sufficient to say that there is no such context. So far, indeed, as the context is relevant it goes to confirm the primâ facie inference that the testator intended that the word should bear its primary meaning.

The appeal therefore fails.

Isaacs J.

I quite agree, and will only add that the word "receive" is correlative to the word "pay." The trustees are to pay to the representatives, and the representatives are to receive from the trustees.

Rich J.

I agree. I can find no indication in the whole context of the will that the testator's intention was to use the word "representatives" in any other than its ordinary sense.

Appeal dismissed with costs. The difference between party and party costs and solicitor and client costs to be retained out of the shares of the daughters other than Lucy Throsby Manning.

Solicitor, for the appellant, F. C. Petrie.

Solicitors, for the respondents, Wilkinson & Osborne.

[1] 45 Ch. D., 269.