Wyatt v Perpetual Trustee Co Ltd [1917] HCA 16; (1917) 23 CLR 14 (26 April 1917)

HIGH COURT OF AUSTRALIA

Wyatt and Others Plaintiffs and Defendants, Appellants; and The Perpetual Trustee Company Limited and Others Defendants, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

26 April 1917

Barton A.C.J., Isaacs and Rich JJ.

Leverrier K.C. (with him R. K. Manning), for the appellants.

Clive Teece, for the respondent Company.

Leverrier K.C., in reply.

April 26

Barton A.C.J.

In this case I have considered the judgment which is about to be read by my brother Isaacs, and, as I agree with the conclusion and the reasons for it, there is no need for me to deliver a separate judgment. In my opinion the appeal should be allowed and the fourth question should be answered in the affirmative.

Isaacs J. read the following judgment:—

In this will there are no technical expressions, and there is no canon of construction to be applied except the fundamental rule that a man's testamentary intentions must be judged of by the words he uses, having regard to the subject matter. His untechnical words must receive their ordinary natural meaning, unless he himself has in some way indicated a special meaning. Apart from that, there is only one legal principle to bear in mind, and that is that in case of doubt the Court leans to an early indefeasible vesting, where not inconsistent with the natural meaning of words. That is not an arbitrary principle: it is only applying what the Court assumes is natural in the mind of a testator—to have as much certainty about his dispositions as is consistent with his expressed wishes.

Harvey J. said he felt great doubt; and the language of this will is such as to occasion it. Reading it, unembarrassed by any prior decisions on other wills, which, however similar, have important points of difference, its meaning, so far as the present case is concerned, appears to be this: The testator directed his residuary estate to be turned into money so far as it did not already consist of money, and then that the trustees should forthwith divide it among his five children, so that each son's "share" of the proceeds be five per cent. more than a daughter's share, and if when the moment for actual division came any child had died without issue, his or her "share," that is, share, not of residuary estate unconverted but of the "proceeds" after conversion, should be "divided" among the others. It is clear that the word "divided" in this latter event means divided by the trustees. It follows that the respondents' contention involves the retention of the corpus of each child's share in the hands of the trustees until, at all events, the death of all the children but one. It may involve that retention until the death of the survivor. It involves, further, that though the residue (other than ready money), however invested by the testator, must be converted into money and "divided," and, notwithstanding that no direction is given to invest it, yet it must be invested, and the income only paid to the children until they die. It is to be observed that when by the codicil an express permission is given to sell "Ellerslie" and hold the proceeds, directions are given as to investment of them. Then arises, if the respondents' contention be correct, a very complicated question as to the residue: Does the expression "brothers and sisters" in the divesting clause mean "surviving brothers and sisters"? If it does, the clause cannot apply to the death of the survivor. If it does not, then, as each one dies without issue after the first, the estate of the first receives an accrual share out of the original share of the last one deceased. Then the testator in the next clause assumed to prohibit each of his children from selling his or her "share of and in the residuary estate," except to another of the children. That must have meant before realization. It could not reasonably mean a sale of so many sovereigns. But the change from "share" of proceeds to "share in residuary estate" is important, and has a practical value by reason of the next following provision in the will. That provision requires "the written consent of every member of my family interested" to be first obtained before the trustees sell any of the residuary estate. We are not concerned with the legal validity of this prohibitory provision, but with the intention of the testator, and he clearly intended to prohibit every one of his children from selling his "share in the residuary estate" except to another child. The last survivor would, on a literal reading, be forbidden to sell at all. If that be not so—and it is a violent construction—then some limit of time must be sought for the duration of the prohibition.

By the will, reasonably read as a whole, therefore, apart from the codicil, the gift over arises in this way:—The testator contemplated the arrival of the moment when the residuary estate had been realized, and the proceeds ready for distribution. If all the children were alive, they shared as directed. If any child had died leaving issue, then the Wills, Probate and Administration Act 1898, sec. 29, applied. But if any child had died without issue, then the share that would have gone to that child was to be divided among the rest. The division was to be absolute. The provision as to separate use and the expression "discharges to my said trustees" are consistent with this, because a female might be married both when "Ellerslie" proceeds were divided and when the residuary proceeds were divided, and the trustees would require her personal discharge as to each. This view is confirmed by the codicil, which appears to regard the division as the "ultimate destination" of the residue.

The death of a child without issue means, then, in this will, the death without issue either before the testator's death or at any time thereafter consistent with the other provisions of the will, which, however, apart from the codicil, placed the limit of actual division of the proceeds upon the possible period. The testator apparently saw some possible difficulty in adhering to the moment of actual division, and so by his codicil carried back the operative time of distribution to the moment of his death. But that only carried back with it the operation of the divesting clause. Apparently he wanted finality according to the state of affairs then.

Holding this view, which is opposed to the decision of Harvey J. on this point, the only one appealed against, I am of opinion that the appeal should be allowed.

Rich J.

I concur.

Appeal allowed. Order appealed from discharged except as to costs. Question No. 4 answered in the affirmative. Costs of all parties of this appeal allowed as between solicitor and client out of the residuary estate.

Solicitor, R. G. C. Roberts.