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High Court of Australia |
NEIL v. McDONNELL [1949] HCA 13; (1949) 79 CLR 177
Will
High Court of Australia
Latham C.J.(1), Dixon(2) and Williams(2) JJ.
CATCHWORDS
Will - Construction - Residuary estate - Gift to testator's "daughters for life in equal shares with remainder in fee to their issue in equal shares, their grandchildren, if any, taking per stirpes" - Per capita or per stirpes - Res judicata - Costs.
HEARING
Sydney, 1949, April 7, 8; May 5. 5:5:1949DECISION
May 5.2. The testator died in 1904, being survived by his daughter Grace McDonnell and his daughter Emily, who became Mrs. Darvall. Emily died in 1937, leaving one child, Ena Gertrude Neil, the appellant. Grace died in 1948. Her son Percy had died without issue in 1892. Another son Wilfred Francis, who died in 1947, left a son John Arthur Xavier, an infant, and another son Stanley is still alive and has six children. A daughter Ines, who became Mrs. Campbell, is alive, and has an infant daughter Ann, who was born in the life of her grandmother Grace. (at p187)
3. It has been held by Sugerman J. that the corpus of the residue is divisible equally between the children of the daughters, namely, Mrs. Neil, Mrs. Campbell, Stanley and the son of Wilfred, John Arthur Xavier, who takes the share which his father would have taken if he had survived his mother Grace. It was held that the children of Stanley and the daughter of Mrs. Campbell took no interest. Mrs. Neil appeals to this Court, contending that she is entitled to one-half of the residue in succession to her mother Emily. (at p187)
4. The will provided that, subject to certain annuities which have not yet all fallen in, the residue of testator's estate should be held upon trust (1) for his daughters Grace and Emily for life in equal shares; (2) with remainder in fee to their issue in equal shares; (3) their grandchildren, if any, taking per stirpes. The form of the gift to the grandchildren shows that granchildren (that is, grandchildren of Grace and Emily) are included in "issue" of Grace and Emily. Thus Sugerman J. has held that the gift to grandchildren is substitutional, and that grandchildren who were alive at the time of the death of the last life tenant, that is Grace, take their parent's share by substitution only and do not take in competition with their parents. There is no appeal against this decision, which is plainly supported by the words of the will. Thus John Arthur Xavier McDonnell takes the share of his father Wilfred Francis McDonnell, but the children of Stanley, Mrs. Neil, and Mrs. Campbell, do not take any interest. The question which arises upon this appeal is whether the ultimate gift of the residue is a gift to the issue of Grace and Emily in equal shares, that is per capita, or whether, on the other hand, the issue of Grace take one-half and the issue of Emily the other half of the residue, that is per stirpes. Sugerman J. has held that the division of the residue among the issue should be per capita and not per stirpes. (at p188)
5. When Grace and Emily were both alive the income was paid in equal shares to them. After the death of Emily there was no doubt that Grace was entitled to at least one-half of the income. But a question arose as to whether the other half of the income should be paid to the appellant Mrs. Neil, the issue of Emily, or whether it should be paid to Grace, the surviving life tenant. Mrs. Neil contended that she was entitled to take the whole of her parent's share of income. In proceedings by way of originating summons before Nicholas J. it was decided that Grace took the whole of the income for her life, his Honour taking the view that the will dealth with the residue as a single mass. Nicholas J. drew attention to the fact that in the earlier part of the will there were specific devises to the daughters separately with provisions relating to the issue of each of them, but that in the case of the residue there was only a single gift constituted by the words "with remainder in fee to their issue in equal shares" and that the whole of the residue was given "subject to the annuities hereafter mentioned." He held that the testator meant that there should be only one division and one class of ultimate beneficiaries, and that the residue should be given over at one time. The result of this construction of the will was that the surviving life tenant Grace took the income of the whole of the residue for her life. (at p188)
6. The originating summons with which Nicholas J. dealt inquired as to the disposition of the income, and also as to the disposition of the corpus, but his Honour answered only the question with respect to the disposition of the income, leaving unanswered the question as to the corpus. Mrs. Neil proposed to appeal from the decision, which excluded her from any share in the income. She claimed that she was entitled to one-half of the income of the residue during the lifetime of Grace. A compromise was arranged whereby Grace continued to receive one-half of the income and the remaining half during the lifetime of Grace was, as from the date of the death of Emily, divided between Mrs. Neil and the then living children of Grace, namely Stanley, Wilfred and Ines. In the case of each half of the income, it was declared to be subject to the annuities for which the will provided. It was expressly agreed that nothing in the compromise should prejudice or affect the rights of the parties in respect of the income of the residuary estate after the death of Grace and in respect of the corpus thereof. (at p189)
7. The decision of Nicholas J. was a decision only as to income, but the reasoning upon which that decision was based depended upon the construction of the whole will and in particular upon the view which his Honour took that the corpus was dealt with as one mass, so that it should be retained undivided while either of the life tenants was alive, and that the provision relating to the income dealt with the whole income up to the period of division of the corpus. The actual decision, however, was a decision only as to the disposition of the income and does not stop the parties from submitting any contention as to the corpus. The decision of Nicholas J. therefore does not operate by way of estoppel, but it is a decision to which other courts will naturally pay respect in relation to any question affecting the construction of the will which may come before them. (at p189)
8. The originating summons was amended and Sugerman J. on 3rd September 1948 answered the following questions: - "Whether upon the true construction of the will and in the events which have happened (i.e. have now happened), including the death of Grace: - (b) The corpus of the residuary estate of the abovenamed Testator is divisible equally per stirpes or per capita among the children of Grace McDonnell deceased and of Emily Sarah Darvall deceased respectively and in the case of the children of Grace McDonnell, which of them. (c) The grandchildren of the said Grace McDonnell, and if so which of them take any interest in the corpus and if so what interest." The answers given have already been stated. (at p190)
9. Sugerman J. made an independent investigation of the questions which arose, regarding the reasons for judgment of Nicholas J. as a matter of authority, not as creating an estoppel. Sugerman J. was of opinion that it was at least clear that there was only one gift of the remainder. The gift was a single gift to the children of the daughters of the testator in equal shares, "their grandchildren if any taking per stirpes." His Honour called attention to the fact that an express provision was made for stirpital division in the case of the grandchildren of the daughters of the testator, but that no such provision was made in the case of the children of the daughters. (at p190)
10. When there is a gift to A for life followed by a gift to a class in equal shares it is obvious that the members of the class take equally. Where there is a gift to A and B for life and then in equal shares to a class which is not defined by reference to relationship to A and B the position is the same. Where the gift is to A and B for life and then to the children of A and B, and A and B are either of the same sex, so that they cannot have children in common (as in the present case), or A and B do not marry each other but each have children, the question arises as to whether the children are entitled per capita or per stirpes. If the terms of the disposition show that the testator intended that the property which is the subject of the gift should be kept together in a single mass until its ultimate disposition the answer to the question will be that the children take per capita under the ultimate gift. If, on the other hand, the terms of the disposition show that separate gifts of undivided parts of the property were made to the parents and that it was intended that the children should take separate subsequent interests upon the several events of the deaths of their respective parents, then the ultimate division will be per stirpes and not per capita. (at p190)
11. In the present case the gift to the issue of the daughters of the testator is a gift to the issue as tenants in common - the direction is express that the property is to be held for "their issue in equal shares." (at p190)
The general rule as stated in Hawkins on Wills, 2nd ed., (1912) p. 149, is -
"Under a devise or bequest to the children of A and
of B as tenants in common,
prima facie the children take per capita, not per stirpes: Lady Lincoln v.
Pelham [1804] EngR 352; (1804) 10 Ves Jun 166
(32 ER 808) ." In Sumpton v. Downing (1947) 75
CLR, at pp 87, 88 the rule was stated by Dixon J. in the following
words: -
"Prima facie, under a gift to the children of named persons as a class, the
children take per capita and not per stirpes. It has
been said that no man who
was guided only by a knowledge of English speech would suppose that a
direction to distribute money between
the children of A and of B equally could
mean anything but a division in which each child took a share equal with that
of every other
child, whether his parent was A or B. However this may be, it
is enough that at least the prima-facie legal meaning of such a direction
is
that the distribution should be per capita. . . . 'But this mode of
construction will yield to a very faint glimpse of a different
intention in
the context': Jarman on Wills, 7th ed. (1930), p. 1688. The intention to the
contrary has been discerned in gifts to
several for life with remainder to
their children when the form of the gift creates a tenancy in common in those
taking for life
and remainders expectant upon the determination severally of
the interest of each tenant in common. Thus a gift to A, B and C for
their
lives and at their deaths to their children in equal shares is construed as a
limitation to A, B and C for their respective
lives as tenants in common with
remainders severally expectant upon their respective deaths. It is easy to
take the next step and
say that the several remainders are to their respective
children per stirpes and not to the children of all of them as a composite
class taking per capita." (at p191)
13. The prima-facie rule can therefore be displaced if the words of the will disclose an intention to make separate gifts upon the separate events of the deaths of the parents of the children who take after them. Thus, as Dixon J. said in Sumpton v. Downing (1947) 75 CLR, at pp 88, 89 : - "A gift to A, B and C for their lives as tenants in common and 'at' their deaths remainder to their children suggests more strongly that a distinct future interest is expectant upon the death of each. An expression denoting no more than that the future interest takes effect at a time when the previous takers are dead is consistent with, if not indicative of, an intention that the subsequent estate or interest must await the death of all." Thus in many cases attention is drawn to the fact that the interest given to the children is not given merely as a future interest which follows upon the termination of a preceding estate, but that it is given as at or after or upon the deaths of the parents of the children who are the ultimate beneficiaries. (at p191)
14. In the case of In re Hutchinson's Trusts (1882) 21 Ch D 811 a catalogue of a number of cases will be found. A consideration of these cases shows that where a gift is given after life tenancies an intention that a subsequent gift to children should take effect as a series of gifts upon the events of the deaths of the life tenants may be shown by the appearance in the words "preceding the later gift" (I quote from In re Hutchinson's Trusts (1882) 21 Ch D, at pp 814-816 ) of such expressions as "after the decease," "after death," "at her death," "at their decease," "from and after the decease," "at the death," "at their death," "for the period of their natural lives." In Hutchinson's Case (1882) 21 Ch D 811 the life tenants were both males (in the present case they are both females - Emily and Grace), therefore no child could be a child of both the life tenants. The gift was "after the decease" of the said F.H.S. and R.S. to their children "share and share alike." It would have been unreasonable to construe the former words as applying only to a single event of contemporaneous death of the life tenants. It was therefore held that the words "after the decease" should be read as meaning "after the death of each," and "to their children" as "to their respective children." Accordingly one moiety belonged to the representatives of F.H.S. and the other moiety was divisible equally between the children of R.S. and the persons claiming under them. The decision depended upon the facts that there was not merely a provision that the ultimate interest awaited the termination of the prior interests, but that there was an express reference to the death of the life tenants, and that the death of the life tenants was constituted by two separate events, so that an intention to make two several gifts was disclosed - each taking effect upon the death of a life tenant. (at p192)
15. In In re Errington; Gibbs v. Lassam (1927) 1 Ch 421 , Romer J. explained the exception to the prima-facie rule which has already been stated. The manner in which the exception is stated indicates the importance of there being something more in the provision than a mere subsequent interest. There must be some reference to the events of the deaths of the life tenants before the exceptional rule which was stated in In re Hutchinson's Trusts (1882) 21 Ch D 811 applied. Romer J. stated the exception in the following terms: - "Where a testator gives the income of his estate to two people, A and B, for their lives and follows that gift by a direction that at their death, or at their deaths, or at or after the death or deaths of A and B the property is to go to their issue, the court does not construe the gift as a gift only to take effect on the death of both in favour of the issue of both, but construes it as a gift, to take effect on the death of each, of the share to the income of which the deceased was entitled, to the issue of the deceased" (1927) 1 Ch, at p 425 . (at p193)
16. In Jarman on Wills, 7th ed., (1930), vol. 3, p. 1690, the same emphasis is placed upon the necessity of words referring to the deaths of the life tenants as necessary to displace the operation of the prima-facie rule of distribution per capita among the children of life tenants where they take after the determination of the interests of the life tenants. In Jarman on Wills, 7th ed. (1930), vol. 3, p. 1690 the rule is stated in the following words: - "Where property is given to A, B, and C for their lives as tenants in common, and 'afterwards' or 'at their death' it is given to their children in equal shares, this is generally construed to mean that 'at their deaths' it is to go to their respective children; that is, the division is per stirpes. . . . But of course this construction is inadmissible if the income is expressly disposed of until the death of all the tenants for life, and the capital is then given to all the children in equal shares; in such a case the division will be per capita, unless there are words in the ultimate gift requiring a division per stirpes." (at p193)
17. In the present case there is no reference to the death of either or both of the life tenants. There are no words upon which to ground a contention that the testator made two separate gifts to the respective issue of his daughters. The gift to the issue is not a gift at or after the deaths or respective deaths of the life tenants. It is expressed simply in the words "with remainder in fee." Those words are apt to describe a single gift taking effect at a particular time and are not apt to describe two several gifts taking effect, the first at the death of the first life tenant when one-half of the corpus could be distributed, and the second taking effect at the death of the other life tenant, when the other half of the corpus could be distributed. I agree with Nicholas and Sugerman JJ. that the will shows an intention that the residue should be held together, that the whole income should be paid (as held by Nicholas J.) to the daughters or the survivor of them, and that the residue should then go over in one mass to the children of the life tenants, their grandchildren taking by substitution. I agree also with Sugerman J. that the provision that the whole residue is subject to annuities and the express reference to stirpital distribution in the case of the grand-children assist in some degree towards the exclusion of stirpital distribution in the case of the issue. In my opinion the general rule and not the exceptional rule applies, the decision of Sugerman J. was right and the appeal should be dismissed. (at p193)
18. My brethren are of opinion that the appeal should be allowed. I agree with the order proposed as to costs. (at p194)
WILLIAMS J. delivered the following written judgment on behalf of himself and DIXON J. This is an appeal from a decretal order made by Sugerman J., sitting as the Supreme Court of New South Wales in Equity, whereby he declared that upon the true construction of the will of William McDonald and in the events which have happened the corpus of the residuary estate of the testator is divisible amongst the appellant Ena Gertrude Neil and the respondents Stanley Augustine McDonnell, Ines Marie Augusta Campbell and John Arthur Xavier McDonnell in equal shares. The appellant claims that his Honour should have declared that this corpus is divisible one-half to herself and the other half among these respondents in equal shares. The testator died on 11th June 1904 having duly made his last will and testament on 11th September 1902 whereby, after certain specific bequests and devises, he gave his real and personal estate to his trustees and executors upon trust as to the rest and residue thereof (subject to certain annuities) for his "two daughters Grace McDonnell and Emily Sarah McDonald for life in equal shares with remainder in fee to their issue in equal shares, their grandchildren, if any, taking per stirpes". (at p194)
2. At the dates of the will and death Grace McDonnell was a widow with three surviving children, Stanley, Ines and Wilfred, a fourth child Percy having died without issue on 10th March 1892. Grace died on 4th July 1948 survived by Stanley and Ines but predeceased by Wilfred who died on 12th December 1947 survived by one child, the respondent J. A. X. McDonnell. At the date of the will the other daughter, Emily, was aged thirty-seven and unmarried but she married Gerard Ashley Darvall soon after the death of the testator on 21st September 1904 and died on 8th June 1937, survived by one child, the present appellant. (at p194)
3. The suit in which the declaration under appeal was made was first instituted by originating summons soon after the death of Emily on 31st July 1937 and came on for hearing before Nicholas J. on 27th September 1937 when his Honour declared that the present appellant was entitled to no portion of the income of residue during the life of Grace and that Grace was entitled to the whole of the income of residue between the death of Emily and her own death. His Honour thought that the scheme of the will was that there should be only one division of corpus upon the death of both life tenants amongst one class of remaindermen which meant that the whole of the residue should vest in possession in all the remaindermen at the same time, that is to say on the death of both tenants for life, and that in the meantime the share of income of the daughter who first died should vest in the survivor for her life. His Honour ordered that the second question asked in the originating summons, which raised the questions decided by Sugerman J., should stand over generally. The originating summons was amended before it was heard by Sugerman J. and the questions which he was asked to answer were as follows: Whether upon the true construction of the above-mentioned will and in the events which have happened, (b) the corpus of the residuary estate of the above-mentioned testator is divisible equally per stirpes or per capita among the children of Grace McDonnell deceased and of Emily Sarah Darvall deceased and in the case of Grace McDonnell, which of them, (c) the grandchildren of the said Grace McDonnell and if so, which of them take any interest in the corpus and if so what interest. (at p195)
4. It was implicit in the declaration of Nicholas J. that the class of remaindermen should be ascertained upon the death of the survivor of the life tenants and Sugerman J. considered that he should follow this reasoning of Nicholas J. He was independently of opinion that, whatever else was obscure, it was at least clear that there was but one gift of the remainder to the issue of Grace and Emily (which we understand to mean a devise and bequest in futuro of the corpus of the estate as a whole to a single class of beneficiaries) into which was introduced a qualification affecting the interests of grandchildren, and this led him to hold that residue then became divisible per capita amongst the children of both life tenants as a single class with a substituted gift to their children of the share of any of them who died before the period of distribution leaving children. In this way J. A. X. McDonnell succeeded to the one-fourth share which his father would have taken if he had survived Grace. In this Court we are not bound by the reasoning of Nicholas J. although we must give it careful attention and we are therefore able to approach the true construction of the will free from any fetters. (at p195)
5. The trusts of residue are (1) to Grace and Emily for life in equal shares; (2) remainder in fee to their issue (that is the issue of Grace and Emily) in equal shares; (3) with a substituted gift to their grandchildren (that is the grandchildren of Grace and Emily) per stirpes, so that the children of Grace and Emily who lived after the testator would take vested interests in remainder in residue with a substitutional gift to his or her child or children of the share of any child who died before his or her interest in residue vested in possession leaving issue. "Issue" in the second trust may mean children and it is so used in this sense in other parts of the will, but we prefer to construe the word as meaning children and grandchildren of Grace and Emily. (at p196)
6. There is no appeal from the declaration of Sugerman J. that J.A.X. McDonnell is entitled to the share which his father would have taken if he had survived Grace. The question at issue before us is whether he and the two surviving children of Grace are each entitled to a one-fourth or one-sixth share of residue. His Honour thought and we agree with him that the words "per stirpes" in the trusts of residue refer to the children of Grace and Emily as the stirps and not to Grace and Emily themselves, but it by no means follows from this that residue as a whole only became divisible on the deaths of both Grace and Emily amongst the children of Grace and Emily per capita with a substituted gift per stirpes to the children of any such children who died before the period of distribution leaving issue. The stirpital provision would operate equally effectively if one-half of residue became divisible amongst Grace's children on her death per capita with a similar substituted gift per stirpes to their children and the other half of residue became divisible on Emily's death amongst her children per capita with a similar substituted gift per stirpes to their children. The question at the root of the matter is whether Nicholas and Sugerman JJ. were right in thinking that on the true construction of the will no part of residue vested in possession in the remaindermen until the deaths of both Grace and Emily. (at p196)
7. We cannot agree with Sugerman J. that it is clear that there is but one gift of the remainder. We think that the will raises problems of interpretation similar to those recently discussed in this Court in Sumpton v. Downing [1947] HCA 36; (1947) 75 CLR 76 . We consider that the trusts of residue are certainly open to two interpretations, (1) that the moieties given to Grace and Emily for life vested in possession in the remaindermen upon their respective deaths; (2) that no part of residue vested in possession in the remaindermen until the deaths of both Grace and Emily, an interpretation which found favour with their Honours in the court below. It can be said in favour of the first interpretation that it would be unreasonable to impute to the testator an intention to leave the children of Emily or Grace, as the case might be, unprovided for during the life of the survivor. On the other hand Emily was thirty-nine and unmarried at the death of the testator (although she married shortly afterwards and may have then been engaged) and the interpretation contended for by the appellant would mean that if Emily had not married and had a child there would have been an intestacy after her death of a moiety of residue. These considerations would appear at least to balance one another. Since, however, Grace was a widow with three children, perhaps more weight should be attached to the former than the latter consideration. It was also contended that the fact that the trusts of residue were expressly made subject to the payment of the annuities indicated an intention that residue should vest in possession in the remaindermen as a whole. It was said that in this respect the will resembled the will in Sumpton v. Downing [1947] HCA 36; (1947) 75 CLR 76 but in that will it was the gift of corpus which was subjected to the charge of the annuity and of income to one or both of the sisters, whereas in the present will the whole of the trusts of residue including those in favour of Grace and Emily are made subject to the payment of the annuities. No light is thrown on the crucial question by this provision. (at p197)
8. The trusts of residue as a whole appear to fall within the class of cases referred to in Jarman on Wills, 7th ed. (1930), vol. 3, p. 1690, where the learned author says "Accordingly, where property is given to A, B and C for their lives as tenants in common, and 'afterwards' or 'at their death' it is given to their children in equal shares, this is generally construed to mean that 'at their deaths' it is to go to their respective children; that is, the division is per stirpes. The rule applies to substitutional gifts." So many of the cases on this point were recently discussed in Sumpton v. Downing [1947] HCA 36; (1947) 75 CLR 76 that it is unnecessary to cite them again. A typical case is Wills v. Wills (1875) LR 20 Eq 342 where there was a bequest of residue, the interest thereof to be paid to C. and J. the sons of the testator equally for their lives and "at their death" the principal to be divided equally between the children of C. and J. Jessel M.R. said: - "In the first place, the will makes a provision for the testator's two children primarily, and then for his grandchildren. The natural course would be, under these circumstances, that after the death of either of the children, his children should be provided for. It is, therefore, very unlikely that he intended that there should be no provision for one branch until the head of the other branch should be dead. The testator gives the income of the residue of his estate to his two sons equally for their lives. That would not give to either of them more than a moiety. . . . The expression 'at their death' cannot be literal. . . . There are two possible constructions. The literal construction will not do. The natural and probable construction is that by the children he means the respective children. This was the view taken in Arrow v. Mellish [1847] EngR 593; (1847) 1 De G & Sm 355 (63 ER 1102) where the words 'their children' were held to mean 'their respective children'." (1875) LR 20 Eq, at pp 344, 345 The present will appears to be open a fortiori to the construction that each moiety vests in possession in the remaindermen independently because there is no express reference to the deaths of Grace and Emily and there is therefore no necessity to put a gloss on any words of the will. In this respect the will resembles those in Arrow v. Mellish [1847] EngR 593; (1847) 1 De G & Sm 355 (63 ER 1102) and Abrey v. Newman [1853] EngR 187; (1853) 16 Beav 431 (51 ER 845) . It is after all a question in the case of every will of ascertaining the testator's intention from the language of the particular will. The first trust of residue in the present will is a trust of residue to Grace and Emily for life in equal shares. It is not a trust of the income of residue but of residue for life in equal shares. The words "for life" fix the duration of their respective interests in residue. The use of the singular number is natural in describing estates for life although there may be more than one life. Residue is therefore separated into two undivided moieties from the date of the commencement of the trusts, and this suggests that there will be succeeding trusts under which interests in remainder will fall into possession on the termination of the preceding life estates. In the second trust, as we have said, there is no express provision that the remainder is to fall into possession at or after the death or deaths of Grace and Emily. An estate in remainder is an estate which is immediately expectant upon the natural determination of a preceding estate of freehold. The will uses the word remainder in the singular and this led his Honour to hold that all the estates in remainder vested in possession at the same time, but the words "for life" are also used in the singular when they plainly mean respective lives, and the word remainder is in our opinion used in the same sense to mean the remainders expectant upon the deaths of Grace and Emily respectively. The only interposed estates that prevent the estates in remainder from immediately falling into possession are the life estates given to Grace and Emily. These are each life estates in one-half of residue so that prima facie onehalf of residue would become an estate in possession on the death of Grace and the other half would become an estate in possession on the death of Emily. In the third trust the words "their children" and "their grandchildren" are apt to refer to the children and grandchildren of Grace and Emily respectively because they cannot be the children and grandchildren of both of them. There is therefore no difficulty in dividing the trusts so that there is one series of trusts of one moiety of residue for Grace for life with remainder to her issue and a second series of trusts of the other moiety to Emily for life with remainder to her issue. (at p199)
9. This is, we think, the true meaning of this particular will and one which is in line with authority. It does not involve choosing between holding that there would be an intestacy of one-half of the income of residue during the life of the surviving sister and implying cross remainders of the income of the deceased sister in favour of the surviving sister during the balance of the life of the latter on very fragile material. If it were not for the declarations made by Nicholas J. we would be prepared to declare that the appellant became entitled to a moiety of residue upon the death of Emily. But these declarations are res judicata and settle the rights of the parties until the death of Grace. We can therefore only make a declaration from that date. (at p199)
10. We are of opinion the appeal should succeed and that the decretal order of the court below should be varied by striking out the declaration appealed from and inserting in lieu thereof a declaration that upon the true construction of the will of the testator and in the events which have happened the corpus of the residuary estate has been divisible since the death of the testator's daughter Grace McDonnell between the appellant as to one moiety thereof and the respondents Stanley Augustine McDonnell, Ines Marie Augusta Campbell and John Arthur Xavier McDonnell as to the other moiety thereof equally between them. The costs of the appeal remain to be dealt with. It is clear that they must be ordered to be paid out of the estate, those of the respondent trustees as between solicitor and client and those of Sheila Grace McDonnell and Marie Frances McDonnell as submitting defendants. The practice of this Court has not been uniform with respect to directing that the costs of appellants and respondents other than trustees which are ordered to be paid out of the estate should be paid as between party and party or as between solicitor and client. We consider that the ordinary practice when an appeal of this kind is allowed should be to make the same order as is usually made in the Supreme Court of the State from which the appeal comes. In this case, following what we believe to be the general practice in the Supreme Court of New South Wales on appeals in its Equity jurisdiction, we order that the costs of the appellant and of the respondents, Stanley Augustine McDonnell, Ines Marie Augusta Campbell and John Arthur Xavier McDonnell should also be paid out of the estate as between solicitor and client. (at p200)
ORDER
Appeal allowed. Decretal order varied by striking out the declaration with respect to the division of the corpus of the residuary estate and inserting in lieu thereof a declaration that upon the true construction of the will of the testator and in the events which have happened the corpus of the residuary estate has been divisible since the death of the testator's daughter Grace McDonnell between the appellant as to one moiety thereof and the respondents Stanley Augustine McDonnell, Ines Marie Augusta Campbell and John Arthur Xavier McDonnell as to the other moiety thereof equally between them. Costs of all parties of the appeal, those of the respondents Sheila Grace McDonnell and Marie Frances McDonnell as of submitting defendants, to be paid out of the estate as between solicitor and client.
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