McRobert v McRobert [1920] HCA 5; (1920) 27 CLR 331 (1 March 1920)

HIGH COURT OF AUSTRALIA

George McRobert and Another Plaintiffs, Appellants; and William McRobert Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

1 March 1920

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

H. Walker and Owen Dixon, for the appellants,

Weigall K.C. (with him Stanley Lewis), for the respondent.

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

March 1

Knox C.J.,

Isaacs, Gavan Duffy and Rich JJ.

The meaning of the third clause of this home-made will is not very clear as to whether the words "if so needed" apply to the sisters of the testator as well as to his brother Peter. It is not legitimate to regard the extrinsic evidence adduced for the purpose of ascertaining the intention of the testator in this respect. The subjects and the objects of his bounty are perfectly well defined, the meaning of every word used is unambiguous, and the only question is what intention has the testator expressed by those words with reference to those subjects and objects. To answer that question we have simply to read the third clause—as part of the will as a whole—and give to it the construction that, as a matter of common sense applied to plain English words, we think it fairly bears.

On the whole the conclusion we come to is this:—Down to the word "Scotland," if the clause ended there, no doubt could exist. The two sisters would have a clear unqualified gift. Then, without any punctuation separating what had been already written from what follows, we find the words "and also Peter McRobert Kingower Victoria" and then the words "if so needed." If the word "also" were not there, the clause would show pretty clearly one continuous line of thought ending with the words "if so needed." If the word "and" were not there, it would, on the other hand, be fairly clear that there was a break in the line of thought, and that the reference to Peter was a new branch qualified by the final words. Then can any reason be assigned for the introduction of the word "also" except to indicate a new mental resolution, and, as it appears, of a qualified nature? It was suggested that as "and" alone was used to conjoin Jane and Barbara, the word "also" might well be considered as a demarcation between sisters and brother. But it is unnecessary for that purpose. The words are "my two sisters," and, further, the Christian names of the beneficiaries would of themselves sufficiently indicate the demarcation of personality. That being so, the word "also" seems to have another purpose, and that other purpose appears to us on the whole to be of necessity a break of thought, making the final gift in the clause a gift to Peter alone "if so needed" in addition to the preceding unqualified gift to the sisters.

On these grounds we agree that the order appealed from was right.

Appeal dismissed. Costs of respondent to be paid out of the estate of the testator.

Solicitor for the appellants, Charles E. Coy.

Solicitors for the respondent, Connelly & Crocker, for Tatchell, Dunlop, Smalley & Balmer, Bendigo.