Saywell v Permanent Trustee Company of NSW Ltd [1931] HCA 10; (1931) 44 CLR 564 (2 April 1931)

Saywell and Others Defendants, Appellants; and Permanent Trustee Company of New South Wales Limited and Others Plaintiff and Defendants, Respondents.

Teece K.C. (with him Harrington), for the respondent Permanent Trustee Company of New South Wales Ltd.

In my opinion the appeal should be dismissed. I agree with the reasons of my brother Dixon.

The Trustee Company, I agree, is entitled to charge commission pursuant to the provisions of its Act. The old rule was that an executor should have no allowance for personal trouble or loss of time incurred in the execution of his duties. But the Act of the Permanent Trustee Company authorizes it to receive commission or remuneration for its services in the office of executor and otherwise. What is there in this case to discharge that right or authority? Nothing except a direction by the testator that no executor or trustee of his will shall at any time be entitled to charge or apply to the Court for payment of commission on either capital or income in respect of his duties or work done as such executor or trustee. The suggestion is that the will in some way annexes to the Company's office as executor the duty of acting gratuitously. The Act is to the contrary in its provision for remuneration, and the trustee has not by agreement with the testator or anyone else so stipulated. Does the Company's conduct then, in accepting office, discharge its right, or show it gives it up, or estop it from relying on that right? If a legacy be given to a person appointed executor, no doubt the presumption is that the legacy is given to him in that character, and it is on him to repel the presumption (In re Appleton; Barber v. Tebbit[1]; National Trustees, Executors and Agency Co. of Australasia v. Doyle[2]). But here the Company gets nothing. No Court on these facts could presume that the testator or anyone else altered his position on the faith of any act of the Company. And still less could it presume that the Company undertook an onerous and responsible office gratuitously when it was entitled to charge for its services. It is for these reasons that I think Harvey J. was right in substance. But I do not agree that the clause in the testator's will that his executor shall not charge commission is revoked by the codicil appointing the Permanent Trustee Company executor, or that the Company does not fall within the terms of the clause.

By his will the testator appointed his five sons to be trustees and executors of his will, and he declared that this appointment of them was made as individuals and not as directors of any company. He further declared that no executor or trustee should at any time be entitled to charge or apply to the Court for payment of commission on either capital or income in respect of his duties or work done as such executor or trustee. The will contained provisions in favour of the shareholders of what appear to have been family companies, and these provisions operated in favour of the five sons named as executors and trustees. The testator afterwards made a codicil which contained the following provision: "Whereas by my will I appointed my five sons therein named to be trustees and executors of my said will now I hereby revoke the said appointment and in substitution of my said five sons I appoint The Permanent Trustee Company of New South Wales Limited to be trustees and executors of my said will and the codicils thereto." The Permanent Trustee Company of New South Wales Ltd. has accepted office as executor and trustee under the will and codicils of the testator, and the question is whether it is entitled to remuneration. In my opinion it is entitled to remuneration as executor and trustee. The Company is authorized by the Permanent Trustee Company of New South Wales (Limited) Act 1888, as amended by an Act of 1918, to act as executor, administrator, receiver, committee and guardian as a business. It is given special statutory powers and in return it undertakes special statutory duties. The purpose of the Company is to carry on at a profit derived from remuneration by way of commission the business of performing services of a fiduciary nature, and to do so in a manner and under conditions which give advantages that might not otherwise be obtainable. The essential purpose of the Company is to earn remuneration. If it is not beyond its powers to act gratuitously, it is certainly beyond its province. When the testator appointed it by his codicil as his executor and trustee in substitution for his sons, he must have intended it to accept and exercise these offices. By the choice of such a company as his executor and trustee, it appears to me that the testator evinced with sufficient clearness an intention that it should act pursuant to its statute and for the remuneration which the statute authorizes. It may be objected that this intention does not appear from the language used by the testator, but from the nature and the legal attributes of the body which he has appointed to administer his estate. But in determining the true meaning and effect of the provision making the appointment, it is proper to consider the nature of the body appointed, and if the meaning of the testator then becomes clear, it is no objection that it is only understood when the subject dealt with is comprehended. When in substitution for the executors and trustees appointed by his will, who were denied remuneration by that instrument because of the beneficial interests given to them, he appointed an independent body whose business it is to exercise the office, the testator raised so high a probability of his intending the body to receive the ordinary remuneration incident to its business that a contrary intention cannot be reasonably supposed. I am therefore of the opinion that the codicil exhibits an intention that the Permanent Trustee Company shall act as executor and trustee for a remuneration in the ordinary course of its business. Such an intention is inconsistent with the application to the Permanent Trustee Company of the provision in the will that no executor or trustee shall be entitled to charge commission in respect of his duties or work done as such executor or trustee. If therefore the provision would otherwise apply to the Company it is revoked by the subsequent inconsistent intention disclosed by the codicil. In my opinion the order made by Harvey C.J. in Eq. is right.

I have come to the conclusion that the Trustee Company is entitled to charge commission on both capital and income in respect of the performance of its duties as executor and trustee of the will and codicils of the testator.

The same result was arrived at by the learned Chief Judge by way of construction of the testamentary documents. "Where a person," he said, "appoints one of the trustee companies as executor, he deliberately selects a body which has a statutory right to certain payment for its services, and he must be taken to know that."

For my own part, I prefer to base my opinion upon the effect of the Act of Parliament itself. In this view actual or imputed knowledge of the terms of the statute becomes immaterial: it simply operates by its own supreme force.

Sec. 13 of the Act gives the Trustee Company a statutory right to be paid commission, even if the will is interpreted as containing a prohibition against the receipt of commission by the Company: just as sec. 1 of the Act enables it to perform and discharge the duties of executor.

No doubt the Company might, in an appropriate case, make a bargain to accept remuneration on a basis different from that provided for in sec. 13. If it did so, it could no longer fall back on the section. So, too, if it deliberately chose to accept remuneration in terms of an instrument appointing it, it might well be prevented from making any further claim based upon the section.

In this case, however, there is not present any circumstance which prevents the application of the statutory mandate as to remuneration, and effect must be given to it.

By his will dated 2nd August 1921 the testator appointed his five sons, whom he mentioned nominatim, to be trustees and executors of his will. After declaring that such appointment of them was made as individuals and not as directors of any company, the testator made the following declaration, namely: "And I declare that no executor or trustee of my will shall at any time be entitled to charge or to apply to the Court for payment of commission on either capital or income in respect of his duties or work done as such executor or trustee." The five sons whom the testator nominated as his executors and trustees were the principal beneficiaries under his will. The declaration that no executor or trustee should at any time be entitled to charge or to apply to the Court for payment of commission was followed by a declaration that Bruce Saywell, one of the testator's sons, should not take any share in the testator's estate or benefit under his will, for the reason that the testator had, in his lifetime, fully provided for him. This son was not nominated by the testator as one of his executors and trustees. On 19th February 1923 the testator made a codicil to his will, by which he directed that his daughters and his sons, with the exception of the said Bruce Saywell, should share equally in the residuary estate. This direction was immediately followed by a clause in these terms: "And whereas by my will I appointed my five sons therein named to be trustees and executors of my said will, now I hereby revoke the said appointment and in substitution of my said five sons I appoint the Permanent Trustee Company of New South Wales to be trustees and executors of my said will and the codicils thereto In all other respects I confirm my said will and first codicil."

By an Act to confer powers upon the Permanent Trustee Company of New South Wales Limited, enacted in 1888 and amended in 1918, it is provided that whenever the Company has been or should be named as executor in the will, or in the codicil to the will of any testator, it should be lawful for the Company to act as executor and to apply for and to obtain probate of the will of the testator and to perform and to discharge all other the acts and duties of an executor as fully and effectually as any other executor (sec. 1).

In my opinion the codicil by which the testator nominated the Permanent Trustee Company of New South Wales Ltd. as his executor and trustee must be read with the Act, which empowered the Company to apply for and to obtain probate and to perform and discharge executorial acts and duties. Sec. 5 provides that an affidavit made by one of the officers of the Company therein specified shall be received in any case in which the Company is empowered to apply for probate, instead of any affidavit required by any Charter, Act of Parliament or Rule of Court to be made by persons making application for probate. Sec. 6 provides that the assets of the Company shall be liable for the proper administration of any estate of which the Company shall act as executor. Proceeding to sec. 13, it is provided that "the Company shall be entitled to receive, in addition to all moneys properly expended by it, and chargeable against any estate of which the administration shall be committed to the Company, ... as executor ... a commission at a rate to be fixed from time to time ... but not to exceed in any case two pounds ten shillings for every one hundred pounds of the corpus or capital value of any such estate ... and such commission shall be payable ... and shall be accepted by the Company in full satisfaction of any claim to remuneration for acting as such executor ... and no other charges beyond such commission and moneys properly expended by the Company shall be made or allowed. Provided that if in any estate the Chief Judge or Judge in Equity shall be of opinion that the rate of commission charged is excessive such Judge may review and reduce such commission. Provided also that the commission to be charged by the Company against any estate shall not exceed the amount of the published scale of charges of the Company at the time when the administration of such estate was committed to the Company, nor shall this enactment prevent the payment of any commission directed by a testator in his will, either in addition to or in lieu of the commission hereinbefore authorized." In the absence of the Act the nomination of the Company to act as executor would have been in vain. Sec. 13 applies as well as the other sections which I have mentioned. By declaring as his testamentary wish that the services of the Company should be availed of, the testator impliedly incorporated the words of sec. 13 of the Act into the codicil by which he nominated the Company as his executor and trustee (In the Will of James Tyson[3]). If the testator intended that the prohibition against an executor or trustee charging or applying for commission should apply only to the executors and trustees whom he had nominated, cadit quœstio. In my view however, the question raised by this appeal may be determined without considering whether the words of the prohibition exhibit that limited intention. Assuming that those words are construed so as to apply not only to the executors whom he had nominated, but also to any executor or executors whom he might afterwards nominate in lieu of or in addition to his five sons, I think that the codicil of 19th February 1923, read with the Act, would, on that construction, be inconsistent with the terms of the clause in the will containing the prohibition, and the provisions of the codicil with sec. 13 annexed would prevail. In my opinion the codicil read with sec. 13 contains the last testamentary wish of the testator with respect to the remuneration of his executor. Since the appointment of the Company by the codicil, with all its implications, would modify the prohibition expressed in the will, that is, assuming it to be capable of having a general application, the concluding words of the codicil, "In all other respects I confirm my said will and first codicil," were intended to confirm the will, subject to the amendments made by the codicil, and were not intended to make the prohibition against charging or applying for commission apply to the executor whom the testator had just nominated.

Solicitor for the respondent, Permanent Trustee Company of New South Wales Limited, S. M. Stephens.

[1] (1885) 29 Ch. D. 893.

[2] (1899) 24 V.L.R. 626; 20 A.L.T. 161.

[3] (1909) 9 S.R. (N.S.W.), at p. 293.

High Court of Australia

Saywell v Permanent Trustee Company of NSW Ltd [1931] HCA 10; (1931) 44 CLR 564 (2 April 1931)

HIGH COURT OF AUSTRALIA