Trustees Executors & Agency Co Ltd v Ramsay [1920] HCA 2; (1920) 27 CLR 279 (18 February 1920)

HIGH COURT OF AUSTRALIA

The Trustees, Executors and Agency Company Limited Defendant, Appellant; and Ramsay and Others Plaintiff and Defendants, Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

18 February 1920

Knox C.J., Isaacs, Gavan Duffy, Rich and Starke JJ.

A. H. Davis, for the appellant.

Weigall K.C. (with him Clyne), for the respondent Fraser.

Ham, for the respondent Wilson.

Gregory, for the respondent Trotter.

Pigott, for the respondent trustee.

A. H. Davis, in reply.

Knox C.J.

On this particular point we think it unnecessary to reserve our decision. The question is raised on the construction of a codicil made by William Swan Urquhart to his will made some four years previously. By that will it is quite clear that he gave to his Australian nephews and nieces interests in the income and corpus of his estate. The interest which he gave them in the income was an interest vested on his death, that is to say, each of the nephews and nieces comprised in that class who survived the testator took on his death a vested interest in a certain portion of the income. The interest which he gave them in the corpus was contingent, the effect of the will being that each of the nephews and nieces of that class who survived the widow of the testator took an interest in the corpus but took no interest except on the contingency of surviving the widow. This being so, the testator made certain substitutionary provisions by his will both as to income and as to corpus—provisions which are quite apt and appropriate to the respective gifts. That as to income was that the share which any nephew or niece dying in the lifetime of the testator would have taken if he or she had survived the testator should go to certain of his or her descendants. The provision as to corpus was that the share which any nephew or niece would have taken in the event of his or her surviving the widow of the testator should go to certain of his or her issue if such nephew or niece predeceased the widow of the testator. By the will the benefaction to the nephews and nieces of the testator was limited to what may be described as his Australian nephews and nieces, no benefit being given to the children of two deceased brothers of the testator who had resided in Canada. By the codicil the testator declared that the children of these two deceased brothers "shall be entitled to an equal share with my other nephews and nieces under the provisions of my said will." The main question turns on the meaning of that provision, another question being whether any modification ought to be introduced into that provision by the substitutionary provision which follows. In my opinion the gift to nephews and nieces there is clear. It is a gift to certain nephews and nieces of equal shares with the other nephews and nieces under the provisions of the will. In my opinion it is tantamount to saying: "I have limited the benefactions in favour of my nephews and nieces to the children of certain of my brothers and of my sisters. I now declare that the children of my other brothers Hugh and Farquhar shall participate with those whom I have already benefited on an equal footing." I have no doubt that if the codicil had stopped there the result would have been that whatever interests the Australian nephews and nieces took in the corpus and income under the will the Canadian nephews and nieces would have taken under the provisions of the codicil. Then it is said that an alteration is made in the direction of giving the Canadian nephews and nieces a vested interest in the corpus instead of a contingent interest as under the construction I have just mentioned, because in the codicil the testator went on to provide a substitutionary gift of the shares which any deceased nephews and nieces, children of Hugh and Farquhar, would have taken if they had been living at the death of the testator, that substitutionary gift being in favour of the issue of those nephews and nieces. I do not think that that can have any effect on the plain meaning of the gift to the nephews and nieces. In the first place, the words of that gift are unambiguous and there is no reason why resort should be had to some other part of the codicil to create an ambiguity for the purpose of resolving it. In the next place, the subject matter of the gift over is the share which the parent would have taken if he had been living at the death of the testator. That can only refer to income, because, the gift being of an equal share, under the will the only subject matter which vested in the parent on his surviving the testator simply was income. I see no reason for cutting down or altering the plain meaning of the words in the codicil which include the nephews and nieces children of Hugh and Farquhar, with the other nephews and nieces, nor do I see anything in the codicil on which the Court would be justified in declaring that the children of Hugh and Farquhar took any different interest from the children of the Australian brothers and sisters.

For these reasons I am of opinion that the decision of Mann J. is perfectly correct, and that the appeal should be dismissed.

The appellant should pay the costs of this appeal of the trustee respondent and one set of costs of the opposing respondents as between party and party; the trustee respondent to take out of the estate the difference between party and party and solicitor and client costs and any deficiency which he fails to recover from the appellant.

Isaacs J.

I agree that the appeal should be dismissed for the reasons given by the Chief Justice. I would only say that I think that the codicil in saying that the children of the deceased Canadian brothers "shall be entitled to an equal share with my other nephews and nieces under the provisions of my said will" placed all the nephews and nieces on an equal footing in all respects. If that view is adhered to, it is fatal to the contention of the appellant.

With regard to costs I agree. I think it desirable to mention the rule referred to by Rich J. in argument, and stated by him in Gale v. Gale[1] as follows: "Where a beneficiary is not satisfied with the construction of the will by the primary Judge and appeals, he must, apart from special circumstances, pay the costs." I think that correctly states the rule which applies to this case.

Gavan Duffy J.

I agree that the Canadian nephews and nieces took no more and no less than the other nephews and nieces of the testator. For that reason I think that the judgment appealed from is correct, and that the appeal should be dismissed.

Rich J.

I agree.

Starke J.

I agree.

Appeal dismissed. Appellant to pay costs of appeal of the respondent trustee and one set of costs of the opposing respondents as between party and party; the respondent trustee to take out of the estate the difference between party and party and solicitor and client costs and any deficiency which he fails to recover from the appellant.

Solicitors for the appellant, Tolhurst & Druce.

Solicitors for the respondents, Gair & Brahe; Malleson, Stewart, Stawell & Nankivell; àBeckett & Chomley; G. Shaw.

[1] [1914] HCA 53; 18 C.L.R., 560, at p. 574.