Kelly v Kelly [1915] HCA 30; (1915) 19 CLR 510 (20 April 1915)

HIGH COURT OF AUSTRALIA

Kelly Defendant, Appellant; and Kelly and Others Plaintiffs and Defendants, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

20 April 1915

Griffith C.J., Isaacs and Rich JJ.

Langer Owen K.C. and Sheppard, for the appellant.

Knox K.C. (with him Waddel), for the respondents other than the trustees.

Griffith C.J.

The point for decision in this case is a very short one, and I am unable to entertain any real doubt upon it, although the learned Judge felt himself able to take another view of the words of the will, and I should myself have felt much more satisfaction if I had been able to take that view.

The testator gave part of his estate upon trust in these terms:—"Upon trust for all my brothers and sisters living at the date of this my will," which was 7th April 1913, "and who shall survive me and the children or child living at the time of my death of every such brother or sister of mine (living at the date of this my will) who shall predecease me." The testator twice repeats the words "living at the date of this my will," so emphasizing that the class of persons to take is limited to his brothers and sisters then alive and their children. I leave out for a moment the words upon which the respondents rely. The will continues:—"who being male attain the age of twenty-one years or being female shall attain that age or marry under that age ... as tenants in common in equal shares as between brothers and sisters but so that the children collectively of any such deceased brother or sister of mine if more than one shall take equally between them only the share which their parent would have taken if he or she had survived me and acquired a vested interest under the trust lastly hereinbefore contained." Between the two sets of words I have quoted are interposed the words "except the children of my deceased brother George Coleman Kelly who are otherwise well provided for." The respondents are the children of another brother of the testator named John, who died in 1887. They contend that the words I have just quoted show that the testator thought that the children of all his brothers were included in the gift, notwithstanding his emphatic repetition of words limiting it to living brothers; and the Court is asked to say that they operate as an implied enlargement of the class so as to take in the children not only of brothers and sisters alive at the date of the will, but also of any other brothers and sisters who had died before that date. The question is whether the Court can and ought to do so.

In my judgment the only inference that the Court can fairly draw is that at one time, either during the preparation of this will or of some previous will, the testator had entertained the design of giving some part of his estate for the benefit of all his brothers and sisters and their families, but that when he made this will he had changed his mind and desired to emphasize the fact that the gift was limited to brothers and sisters living at the date of the will and their families. That intention, which is plainly expressed, seems to me to be the dominant intention of the testator as appearing on the face of the will. The provision following the words on which the question arises would be apt words in either case. The respondents' contention involves the rejection of clear words twice repeated and is based upon what is at best a probable or plausible conjecture.

I do not think that in accordance with any recognized principles of interpretation a conjectural implication can be admitted inconsistent with a clearly expressed intention.

Under these circumstances, I am compelled—I confess with reluctance—to hold that the appeal must be allowed.

Isaacs J.

I agree with what has been said and will only add a few words. The whole stress of the respondents' argument is laid upon the rule sometimes followed that the statement of an exception implies that but for the exception the thing excepted would be in the principal part. That is used in this way, namely, to set up a double implication. The only persons mentioned in the exception are the children of George Coleman Kelly, and it is suggested that by implication but for the exception they are included in the previous gift contrary to the distinct words of that previous gift. Then on that is founded another implication of a gift to the children of another brother who are not mentioned in the principal gift or in the exception. In my opinion, to accede to the respondents' view would not be interpreting the will but would be reconstructing it.

I agree that the appeal must be allowed.

Rich J.

I also agree.

Appeal allowed. Order appealed from varied by declaring that the residuary estate is divisible into six shares and that the plaintiffs are not entitled to any share in it. Costs of appeal of both parties to be paid out of the estate.

Solicitors, for the appellant, Creagh & Creagh.

Solicitors, for the respondents other than the trustees, Windeyer & Williams.