Melbourne Hospital v Perpetual Executors & Trustees Association of Australia Ltd [1915] HCA 67; (1915) 20 CLR 421 (27 September 1915)

HIGH COURT OF AUSTRALIA

The Melbourne Hospital Appellant; and The Perpetual Executors and Trustees Association of Australia Limited and Others Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

27 September 1915

Griffith C.J., Gavan Duffy and Rich JJ.

Mitchell K.C. (with him Miller), for the appellant the Melbourne Hospital as representing various charities interested.

Hayes, for the respondent Dorothy Nell.

Pigott, for the respondent the Talbot Colony for Epileptics.

Weigall K.C. (with him Lewers), for the respondent executors.

The judgment of the Court, which was read by Griffith C.J., was as follows:—

Sept. 27

Griffith C.J.,

Gavan Duffy and Rich JJ.

The testator, a wealthy but not highly educated man, by his will "written and composed," to use his own words, by himself, and dated 3rd May 1909, after the appointment of executors and trustees and a bequest to his wife, gave her an annuity of £300 and the occupation of his house. He then gave "out of the income" of his estate sums amounting in the aggregate to £2,400 annually to certain charitable institutions. The income of the estate, which was very large, was much more than sufficient to meet these payments. He directed his executors after paying over the said amounts for the term of ten years from his death to invest the balance of the income "and all accumulations during the said term of ten years in and on freehold estate." He then gave "the accumulations during the said ten years together with the whole of" his residuary estate to the children of two nieces of his first wife.

By a codicil, dated 20th November 1912, he said:—"I herewith revoke and cancel all provision made" in the will "for the distribution of all monies accumulated after and during the ten years named therein and in lieu thereof direct my executors to remit to the Corporation of the Borough of Walsall Staffordshire England the sum of £10,000 with which to erect a James Mason Ward at the site or adjoining the present Hospital and for the support and upkeep of the same in all and any necessary expense to carry out the object of such an Institution as the Walsall Hospital." The codicil proceeded:—"I direct my executors to give to" various persons named several legacies of £2,000 each. He then gave the residue of his estate absolutely to certain charitable institutions.

The will and codicil must be construed together as a single disposition.

The Corporation of Walsall and the other legatees named in the codicil claim that the bequests given by it are presently payable. Mr. Mitchell's clients contend that the payment is suspended for ten years, and the Supreme Court have so held, Cussen J. doubting.

The words "I direct my executors to remit," and "I direct my executors to give," primâ facie import present payment, but it is contended that their effect is controlled by the words of the will, which, it is said, direct an accumulation of the surplus income for ten years before any distribution of it. The will does not expressly direct accumulation, but merely provides for the investment during the period of ten years of the surplus income of the estate as to the disposition of which during the period it makes no provision. In our opinion this provision cannot be construed as an independent direction to accumulate irrespective of the gift to the legatees whom the testator then intended to take the accumulated surplus after the ten years had elapsed, but must be treated as ancillary to that gift. When he revoked that gift the purpose and object of the provision came to an end. We think, therefore, that the revocation of "all provision" made in the will "for the distribution of all monies accumulated after and during the ten years," which undoubtedly operated as a revocation of the gift of the accumulated surplus, involves a revocation by implication of all the provisions regarding the moneys which would be accumulated, including those as to their investment. No independent reason can be suggested for accumulating. The nature of the gift to the Corporation certainly does not suggest a postponement.

It follows that the words of the will relied upon are not sufficient to cut down the primâ facie meaning of the words of the codicil importing a direction for present payment.

We think, therefore, that the legacies to Mr. Hayes's clients are payable immediately, and the question should be answered accordingly.

Order appealed from varied by declaring that the £10,000 directed by the codicil to be remitted to the Corporation of Walsall and the several sums of £2,000 given by the codicil to the several persons therein mentioned are payable immediately. Costs of all parties of the application of the respondent Dorothy Nell by way of cross-appeal, including her costs of the appeal, as between solicitor and client, to be paid out of the estate. Order that the deposit of £50 be returned to the appellant.

Solicitor, for the appellant, H. C. Godfrey.

Solicitors, for the respondents, Gair & Brahe; J. M. Smith & Emmerton; H. T. W. Stillman.