Gleeson v Fitzpatrick [1920] HCA 81; (1920) 29 CLR 29 (8 December 1920)

Gleeson and Others Defendants, Appellants; and Fitzpatrick and Others Plaintiffs and Defendants, Respondents.

Innes K.C. (with him Sanders), for the respondents Clancy to whom the specified land was devised, supported the contention that the legacy of £1,760 was payable out of the moneys in the house or standing to the testator's credit at his bank.

Maughan K.C. (with him Davidson), for the respondent Honora Maria Theresa Fitzpatrick.

So far as this matter falls to be dealt with at present, it is an appeal against so much of the order of Owen A. J. as holds that on the true construction of the will and codicil of John Clancy the legacy of £1,760 thereby given to the Gleesons was not a specific bequest payable out of the money which at the testator's death was in his house or standing to the credit of his account current or on fixed deposit at his bankers, but was a general legacy payable out of the general personal estate of the testator not specifically bequeathed. His Honor came to that conclusion apparently being influenced to some extent by the decision of the House of Lords in Higgins v. Dawson[1], which overruled the decision of the majority of the Court of Appeal in In re Grainger; Dawson v. Higgins[2]. It is quite clear that the words of this will are not identical with the words of the will under consideration by the House of Lords in that case, and it seems to me that the main difference, which is that in this will the words "subject to" are used in a position corresponding to that of the word "after" in the will then under consideration, is a sufficient ground for distinguishing the decision in that case, and for applying the primary rule that every will should be construed on its own words without regard to the construction placed by other Courts on words more or less similar in other wills. Reading this will, I can feel no doubt that what the testator did and meant to do was this:—He dealt first with a certain portion of his property consisting of money in his house, money standing to his credit on account current and money on fixed deposit, and made his dispositions of that money. I have no doubt that he not only intended but expressed his intention that the £1,760 bequeathed to the Gleesons was to be paid out of the money in the house or on account current or on fixed deposit, and that the part of the will beginning "I give and bequeath the sum of £1,760" and ending "prayers and masses for the repose of my soul" was meant to deal with those sums of money to the exclusion of his other property, and that the rest of the will was meant to deal with his other property to the exclusion of the money in the house or on account current or on fixed deposit. I come to that conclusion from the words of the will, and especially from the use of the words "I give and bequeath all the rest and residue of the money which at my decease may be in the house" &c., which words in themselves import that the testator had already disposed of some part of the money. The words "subject to" have not the same effect as the word "after" in the case of Higgins v. Dawson[3]. For these reasons I think that the appeal must succeed, and that a declaration should be made that the £1,760 bequeathed to the Gleesons is payable out of the money which at the death of the testator was in his house or standing to the credit of his account current or on fixed deposit at his bankers.

There was an appeal on another matter, namely, a question about the incidence of Federal estate duty under sec. 35 (b) of the Estate Duty Assessment Act 1914, but that has very properly been abandoned by Mr. Leverrier, the amount at stake being insignificant.

The only other question is that of costs. The testator directed that the funeral and testamentary expenses, which phrase includes the cost of an originating summons for the interpretation of the will, are to be paid out of the same fund out of which the £1,760 is to be paid. In my opinion the proper order is that the costs of all parties, excluding Mr. Innes's clients, be paid out of that fund, those of the trustees as submitting respondents as between solicitor and client, and that the costs of Mr. Innes's clients should be paid by the appellants. I say that, because Mr. Innes's clients were brought here as respondents to an appeal by special leave. The result of the appeal, which turns out to be for their benefit, would have been the same whether they were here or not. The expense of their coming here is caused solely by the desire of the appellants to protect themselves against a loss of about £1,200 which must inevitably have occurred in the event of Mr. Maughan's clients being successful. As the appellants have brought Mr. Innes's clients here for their own protection, I think that the appellants should pay their costs.

With the exception of the last statement as to costs made by the Chief Justice, with which I shall deal afterwards, I agree in the result proposed by him. I do so on the construction of the will. There are no terms of art necessary to be considered by the light of any rules of law or canons of construction. We have simply to read the will according to its natural meaning. In Sidle v. Queensland Trustees Ltd.[4], for my brother Powers and myself, I said:—"Cases, as is constantly said, are of little use except for the principles they contain; and the recorded application of those principles to a particular will can do no more than illustrate the principle, and prevent us from misunderstanding its meaning. But one universal principle is that the whole will must be read before finally arriving at an opinion as to the meaning of any controverted portion. You read the whole document through in the first place to ascertain whether it contains anything to affect the meaning of the passage in controversy. If it does not, you construe the passage by itself, having reference, of course, to the subject matter and relevant surrounding circumstances. If there is something affecting the meaning, you have to construe the controverted passage by the additional light of the other portion of the document. If authority were wanting for this, it is found in the judgment of Lord Halsbury L.C. in Higgins v. Dawson1(1902) A.C., at p. 3.." Adhering to the view there expressed, I have to ask myself first what is the question raised in this case? The question is whether the bounty of the testator in favour of the Gleeson family comes out of what is given to the Clancy family or out of what is property not given to the Clancy family. When I look at the will I find this very distinctly appearing on the face of it, namely, that the testator having various kinds of property made two groups of it. He had money, or contemplated having money at the time of his death, or what he called money, that is to say, that which represented money either actually in his possession or which had been in his possession and stood to his credit in his bank either on current account or on fixed deposit, and which was only referred to as money for convenience. He grouped that together, and as to the rest of his property, to which I pass at once, he dealt with it under the description of all his real and personal estate except that of which he had otherwise disposed by giving it to trustees upon trust for the Clancy family, and that trust entirely excludes any notion that the Gleeson family were to share in that property. That leaves nothing of his property but what he regarded as money, and of that he gave £1,760, which could only be payable in money, to the Gleeson family. He then went on to say: "I give and bequeath all the rest and residue of the money which at my decease may be in the house or standing to the credit of my account current or on fixed deposit at my bankers to my sister." It seems to me that it is quite unnecessary to decide the very difficult question which might otherwise have arisen, namely, whether technically the gift to the Gleeson family was what is known as a specific bequest or not. It is sufficient to say that it is an irresistible conclusion from the will that the first group of property was divided, first, £1,760 for the Gleeson family and, then, the rest and residue for Mrs. Fitzpatrick.

With regard to costs, the reason I find myself in disagreement with what has been said by the Chief Justice as to the costs of Mr. Innes's clients is that it is not simply a question of their appearance on the hearing of the appeal by special leave. The matter begins with the appeal itself, and the question is what effect has the appeal had on Mr. Innes's clients? It seems to me very unjust, if I may say so, that Mr. Innes's clients should not take the disadvantages as well as the advantages of that appeal. It is, to my mind, no reason for making the appellants pay the costs of Mr. Innes's clients to say that they would have obtained the advantage even if they did not appear. It is true that they need not have appeared, but what they did was that they appeared so as to gain whatever they could from the appeal and, under cover of that appeal, to ward off any disadvantages to themselves. They supported the appellants, they took the same side, and, having taken the same side and taken advantage of the appeal and the opportunity thereby given to them, they have, by the united efforts of themselves and the appellants, succeeded in the main object of the appeal, which has saved them £600. Therefore, it seems to me that they cannot justly say they have been damnified, and, in my opinion, they should bear their own costs.

I approach the matter as one involving the construction of this particular will. I find that the testator has "separated by a barrier" or made an "artificial entirety" (to use the words of Rigby and Vaughan Williams L.JJ. in In re Mason; Ogden v. Mason[6]) of a mass of money defined in the will as "the money which at my decease may be in the house or standing to the credit of my account current or on fixed deposit at my bankers." Out of this segregated mass he gives to the Gleeson family the sum of £1,760, and the rest and residue—a particular residue—subject to payment of his funeral and testamentary expenses and of a certain bequest, to Mrs. Fitzpatrick. It is unnecessary to label, and I refrain from labelling, the gift under consideration either as a specific or as a demonstrative legacy. It is sufficient to say that it is payable out of the aggregation of money only. The case of Higgins v. Dawson[7] is, to my mind, distinguishable. The structure and words of the clause of the will in that case are entirely different from that of the clause in this will. In that case the residue and remainder were created by the words "after" payment of the testator's debts and funeral expenses.

I agree with the order as to costs proposed by the Chief Justice. As to the costs of trustees, my experience as a primary Judge has shown me that in administration proceedings trustees should be represented by counsel in order to place the facts in their true light before the Court, to supplement the argument where necessary and to assist the Court in framing a workable order under which they can effectively administer the estate. Upon the construction of a will in a controversy between beneficiaries, the practice has been, if trustees think it necessary to appear, to allow them their costs, leaving it to the taxing master to consider their position in fixing the amount of their costs. It has been suggested that if the appellants consider that the attendance of the trustees by counsel is unnecessary they may give the trustees notice that they are not expected to attend and that if they do their costs will be objected to (Catterson v. Clark[8]). Even if this course be adopted the Court will not deprive trustees of their costs if there is a possibility that their attendance may be of service (Re Wagstaff; Wagstaff v. Jalland[9]).

Appeal allowed. Order appealed from varied by declaring that the sum of £1,760 bequeathed to the Gleesons is payable out of the money in the testator's house and standing to the credit of his account current or on fixed deposit at his bankers and not out of the general personal estate not specifically bequeathed. Costs of the appellants and of the respondent Mrs. Fitzpatrick and of the trustees, those of the trustees as submitting respondents as between solicitor and client, to be paid out of such money as aforesaid. Costs of the respondents Clancy of this appeal to be paid by the appellants.

Solicitors for the respondents, P. W. McCarthy, Lockhart, by S. L. Ridge; Walsh & Blair, Wagga Wagga, by McDonell & Moffitt.

[1] (1902) A.C., 1.

[2] (1900) 2 Ch., 756.

[3] (1902) A.C., 1.

[4] [1915] HCA 48; 20 C.L.R., 557, at p. 560.

[5] (1902) A.C., at p. 3.

[6] (1901) 1 Ch., at pp. 625, 633.

[7] (1902) A.C., 1.

[8] 95 L.T., 42.

[9] 98 L.T., 149.

High Court of Australia

Gleeson v Fitzpatrick [1920] HCA 81; (1920) 29 CLR 29 (8 December 1920)

HIGH COURT OF AUSTRALIA