Moran v House [1924] HCA 44; (1924) 35 CLR 60 (6 November 1924)

HIGH COURT OF AUSTRALIA

Moran Defendant, Appellant; and House and Another Plaintiff and Defendant, Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

6 November 1924

Isaacs A.C.J., Gavan Duffy and Starke JJ.

Keating, for the appellant.

Kelly, for the Curator of Intestate Estates.

Llewellyn Jones, for the respondent Kelly.

Keating, in reply.

The following written judgments were delivered:—

Nov. 6

Isaacs A.C.J. and

Gavan Duffy J.

This is an appeal from an order of the Supreme Court of Victoria upon an originating summons which the respondent House, who is the Curator of Estates of Deceased Persons, took out as administrator with the will annexed of the estate of Edward Dillon. The summons made two persons defendants, namely, the appellant Moran, as one of and as representing all the other next-of-kin, and the respondent Kelly, on behalf of the Roscommon Infirmary as secretary thereof. The summons asked for the determination (without an administration by the Court) of seven questions, the last being as to the incidence of costs. Five questions related exclusively to the real estate, which by the will was, in certain events, devoted to the purposes of the Infirmary. The sixth question, though extending to all the property in the estate, was virtually consequential on the first five, namely, as to intestacy. No controversial question arose as to personalty, with respect to which the deceased was admittedly intestate and to which the next-of-kin were entitled outside any controversial question raised by the summons. Weigall A.J., who heard the summons, determined (1) that the gift to the Infirmary should take effect, (2) that the costs of all parties of and incidental to the application should be taxed as between solicitor and client and be paid out of the personal estate and, if that were insufficient, then to the extent of the deficiency out of the real estate. The appellant Moran appeals against both branches of the decision. These require separate consideration.

The first arises in this way:—The deceased, Edward Dillon, a resident of Melbourne, there made his will on 31st March 1908, leaving his personal property to his brother and sister equally. No question now arises as to the personalty. As to the rents of two cottages in West Melbourne he left "the rents" to be paid to his brother and sister, shortly, for life and, after their death, then in a certain event he directed the premises to be sold and the proceeds devoted for the Infirmary at Roscommon. The event is "one year after a Home Rule Government is granted to Ireland." The testator died on 25th February 1922. The question is whether by the Imperial Act passed on 23rd December 1920 (10 & 11 Geo. V. c. 67) "a Home Rule Government" was "granted to Ireland," within the meaning of the words used by the testator. Weigall A.J. decided in the affirmative, and that therefore, as the event had happened during the testator's lifetime, the gift to the Infirmary was valid, and consequently the next-of-kin were not entitled to the proceeds of the cottages.

Mr. Keating on behalf of the next-of-kin certainly said all that could be said in support of their case. He contended that the decision was wrong because (1) the Act did not "grant" any government to Ireland, since it merely offered a form of government, leaving it for acceptance; (2) if any government was "granted," it was not to "Ireland," but that a government was granted to "Southern Ireland," and a government to "Northern Ireland"; (3) the provision in the event of the Council of Ireland being established for fuller powers of government indicated that, the smaller powers did not amount to "Home Rule for Ireland." It must be clearly understood that it is no part of the province of this Court to discuss anything but the meaning of the testator's words as they appear in his will, and whether the Act of 1920 falls within that meaning. That it is a "grant" of government appears on its face. It is a definite enactment that a certain form of government shall be established in Southern Ireland and a certain form of government in Northern Ireland. True, it also provides that, if that form of government so established shall not be availed of, another may be substituted, but that does not affect the fact that primarily a named form of government was enacted. The first objection therefore cannot be sustained.

The second and the third may be taken together. The Act calls itself "An Act ... for the Government of Ireland." The testator's words do not describe any specific form of "Home Rule Government for Ireland." His words are altogether general. He says simply "a Home Rule Government for Ireland." and, therefore, the scope is wide enough to embrace any form of government for Ireland which may fairly be called "Home Rule." Whatever may be the limits of a definition properly indicating "Home Rule," the Act in question falls within it, and the decision of Weigall A.J. on this point is affirmed.

The second question relates to the direction as to costs. These were dealt with, not as a matter of discretion, but as a matter of rule. This is not a general administration, and the litigation was and is really confined to the real estate. Even in general administration the costs so far as increased by the administration of the real estate must be borne by that real estate (see cases cited in Annual Practice 1924, p. 1247). The costs here were occasioned wholly by the testator's disposition of the real estate. That is the sole disposition that has caused the difficulty, and, in our opinion, it is just that the real estate should bear the cost of clearing itself. The order as to costs should be varied so as to read as follows: "That the costs of the parties other than the administrator of and incidental to this application be paid out of the real estate of the testator."

The litigant parties having each been only partially successful, no costs as to them of this appeal. The costs of the administrator in the Supreme Court and this Court as between solicitor and client to be retained out of the assets of the estate; the real estate, if necessary, to recoup the personal estate in respect thereof.

Starke J.

I agree with the opinion of my brethren upon the substantial question, but I am unable to assent to their view as to the costs of the proceedings.

The administrator of Dillon deceased issued an originating summons for the determination (without an administration by the Court) of certain questions involving the true interpretation of the will of the deceased in the events which have happened. The costs so incurred were expenses incident to the proper performance of the duty of the administrator, and fall within the term "testamentary expenses." Primarily, such expenses are payable out of the general personal estate of the deceased. But the practice is that the costs of an administration action, so far as they have been increased by the administration of the real estate, are borne by the real estate. In this case, however, there was no administration order, and in particular there was no inquiry as to the real estates of which the deceased was seised, or to which he was entitled, at the time of his death, or as to the incumbrances affecting the same, or any direction for sale or any account of rents and profits.

Weigall A.J., who has great experience in these matters, did not regard the interpretation of the will of the deceased, so far as it affected his real estate, as an administration of the real estate within the rule of practice, and, in my opinion, he was quite right in this view. The contrary view is opposed, I believe, to the long standing practice of the Supreme Court of Victoria, and is based, I fear, upon a misunderstanding of the cases of Patching v. Barnett[1] and In re Middleton; Thompson v. Harris[2].

The appeal ought, in my opinion, to be dismissed, and with costs.

Appeal, so far as it relates to the gift of the real estate, dismissed. Order as to costs varied so as to direct that the costs of the parties other than the administrator of and incidental to the application be paid out of the real estate of the testator. Administrator's costs in the the Supreme Court and in the High Court as between solicitor and client to be retained out of the assets of the estate; the real estate, if necessary, to recoup the personal estate in respect thereof.

Solicitor for the appellant, T. A. Kennedy.

Solicitors for the respondents, Henderson & Ball; Phillips, Fox & Masel.

[1] (1881) 51 L.J. Ch. 74; 45 L.T. 292.

[2] (1882) 19 Ch. D. 552.