Jaques v Seton [1960] HCA 14; (1960) 103 CLR 511 (1 March 1960)

HIGH COURT OF AUSTRALIA

JAQUES v. SETON [1960] HCA 14; (1960) 103 CLR 511

Will

High Court of Australia
Dixon C.J.(1), Kitto(2) and Windeyer(3) JJ.

CATCHWORDS

Will - Construction - Gift of income of fund to wife of son for life after death of son - Wife known to testator at date of will - Death of testator - Subsequent dissolution of marriage of son and wife - Remarriage of son - Death of son whilst second marriage subsisting - First wife still living - Children of both marriages - Who entitled to income of fund for life.

HEARING

Sydney, 1959, December 14, 15;
Melbourne, 1960, March 1. 1:3:1960
APPEAL from the Supreme Court of New South Wales.

DECISION

1960, March 1.
The following written judgments were delivered:-
DIXON C.J. This appeal is from a decretal order of Myers J. by which a interpreted. The clause in question disposed of a share in residue in favour of a son of the testator named Lionel Wathen Jaques, his wife and children. Lionel, who is now dead, married twice. The first marriage by which he had one child, was dissolved by the Divorce Court. By his second marriage he had one child. It was dissolved only by his death. Both his first and his second wife survived him, as did the two children. By a bequest the terms of which it will be necessary to set out the codicil bequeathed a share in residue to Lionel for life and after his death to his wife for life and after her death remainder to the child or children of Lionel. The decree under appeal declared in effect that the divorced wife took the life estate after Lionel's death and that after her death the two children took the corpus of the share in equal shares. (at p517)

2. The appeal is by the widow and her child. Two alternative contentions are put forward in support of the appeal against the declaration contained in the decretal order. The first is that the widow and not the divorced wife takes the life estate which vested in possession upon Lionel's death. The second or alternative contention is that neither the widow nor the divorced wife takes it but it lapses, the remainder to the two children being thereby accelerated. This second or alternative contention is based on the view that the wife identified by the testator's codicil was the wife of Lionel at the time when he made the codicil, namely the first wife, but that in order to take under the limitation it was necessary that she should remain Lionel's wife and survive him as his widow. (at p517)

3. The precise order of events is obviously important and it is better to state them chronologically before setting out the limitation in the codicil upon the interpretation of which the appeal depends. (at p517)

4. Lionel Wathen Jaques, a son of the testator, married for the first time on 24th March 1920. He married the respondent Barbara Rose Fosbery Osborne. His father, the testator, made his last will six months later, namely on 29th September 1920. The material clause of the will was a disposition of residue which began with a direction to divide the same into sixteen shares. The clause directed that four of such shares should be paid to his son Lionel Wathen Jaques. (at p517)

5. On 7th August 1921 a son was born of the marriage of Lionel Wathen Jaques and Barbara Rose Fosbery Osborne. He was named Gordon Alfred Fosbery Jaques and appears under that name among the respondents to this appeal. A month after the birth of this grandson, namely on 9th September 1921, the testator made the codicil containing the clause now in question. It is unnecessary to say that he knew his son's wife who lived with her husband in the close vicinity of the testator's own residence. The next material event was the death of the testator: he died on 22nd April 1928. Three years later, namely on 5th May 1931, the marriage between Lionel Wathen Jaques and his wife the respondent Barbara Rose Fosbery Osborne was dissolved. In 1941 Lionel Wathen Jaques married again. He married the appellant Lyall Elizabeth Jaques. Of that marriage there is one child, namely the appellant Suzette Elizabeth Jaques. Lionel Wathen Jaques died on 27th October 1958, leaving him surviving his divorced wife, his widow and his son by his first marriage and his daughter by his second marriage. (at p518)

6. The clause in the codicil under which the conflicting claims of these parties arise dealt with the four parts of residue which under the will were directed to be paid to Lionel Wathen. The clause is as follows: "I hereby revoke the bequest of the said four shares to my said son Lionel Wathen Jaques absolutely and in lieu thereof I direct my said Trustees to hold two of such four shares upon trust for my said son Lionel Wathen Jaques absolutely AND as to the remaining two of such four shares UPON TRUST to invest or keep invested the same . . . and to pay the income derived from such investment to my said son Lionel Wathen Jaques during his life AND after his death to pay such income to his wife during her life and after her death to hold the said two parts of the income therefrom UPON TRUST for the child of my said son Lionel Wathen Jaques or should there be more than one child UPON TRUST for all his children in equal shares". The first question is who in the events that have happened takes under the words "pay such income to his wife during her life". (at p518)

7. In the circumstances described I do not doubt that the interpretation placed by Myers J. upon this phrase is correct. The words "his wife" are to be construed as at the date when the codicil was made and, though there is no necessary inconsistency between that proposition and an interpretation of the words which treats them as descriptive and as referring to whatever wife Lionel Wathen might leave as his widow, the circumstances show that the testator had Lionel's then present wife in mind and was indeed referring to her and no one else. Furthermore, there has come to exist a presumptive interpretation of a reference by a testator in his will to the "wife" of another person. If there be no context giving any guidance the expression is read as referring to the wife whom the testator knew, the wife at the time the testator made his will. It seems to be going rather far to erect into a legal rule of construction as some of the authorities do the prima facie interpretation of clauses containing such an expression. A question can hardly exist as to what the word "wife" connotes as a word standing alone. The connotation of the word is not the point. The point must always be whether the word is used to denote a specific person or as a descriptive word and, if the latter, whether the description is to apply at some and what particular point of time or event other than the date when the will was made. Moreover, it is not often that there will be no context from which some guidance may be obtained. It may be said that in the present case there is little or no context to help. But once the surrounding circumstances of the making of the will are known that hardly remains true. The aid that is obtained from the circumstances points unmistakably to the correctness of what I may call the presumptive interpretation of the phrase and that is enough. (at p519)

8. The alternative contention may seem plausible that, conceding that the wife referred to is Barbara Rose Fosbery, still the clause or the phrase imports or implies a condition that she shall remain Lionel's wife until his death. But implications must rest on more than conjecture and there is nothing which shows that the word "wife" in the clause was used as anything but the description of Barbara Rose Fosbery (Jaques). Her life interest was of course in remainder expectant upon his life interest and it therefore lapsed if she predeceased him. But there is nothing to suggest that dissolution of marriage occurred to the testator or his draftsman. Everything points to the limitation being for her benefit as the known wife of Lionel and the mother of their child, not as a gift depending upon her status. The case law contains some instances where it was open to attempt to fix such a construction on words in pari materia but it is clear enough that a clear context is needed to justify the implication. I believe that Mr. Jarman was the author of the view that a rule of construction or presumption existed by which a reference by a testator to the wife of another was interpretated as meaning the wife existing at the date of the will to the exclusion of any other wife. At all events, in the second edition of his book on Wills (1855) p. 266) a passage appears containing the following: " . . . on all wills containing a gift to the wife of another person under which, on the principle just stated, the individual standing in the conjugal relation at the date of the will would take, exclusively of any other person who might happen to answer the description at the death of the testator." In Re Lory (dec'd) (1891) 7 TLR 419 Chitty J. formulated judicially a rule of construction based apparently on the passage in Jarman as follows: "The rule of construction was that if a gift was made by will to the wife of another person than the testator the person answering the description of a wife at the date of the will took." His Lordship proceeded to state a rider, which might touch this case, but it was based on Re Lyne's Trusts (1869) LR 8 Eq 65 now considered overruled and is not law. In In re Drew; Drew v. Drew (1899) 1 Ch 336 Stirling J. expressed the admitted rule to be "that prima facie where the wife of a person is spoken of by a testator and that person is married at the date of the will, in the absence of any context, the wife existing at the date of the will is the person intended to take" (1899) 1 Ch, at p 339 . This rule was enunciated again and applied by the Court of Appeal in In re Coley (1903) 2 Ch 102 , a case resembling the present except that the first marriage was dissolved by death. (at p520)

9. See further Re Hardyman (1925) Ch 287 per Romer J. (1925) Ch, at p 289 ; Lodge v. Dowie (1935) 36 SR (NSW) 52; 53 WN 47 per Nicholas J. (1935) 36 SR (NSW), at p 56; 53 WN, at p 47 , Re Devling (1955) VLR 238 ; Re Vine (1955) VLR 200 ; Wood v. James [1954] HCA 77; (1954) 92 CLR 142, at p 147 . (at p520)

10. In my opinion the appeal should be dismissed. (at p520)

KITTO J. I agree. The prima facie rule of construction to which the Chief Justice has referred has been thought by generations of judges to be warranted by considerations of general probability, and not merely by a preference for early vesting. It has seemed that in general an instrument which speaks of a man's wife at a time when he has a wife, and which gives no other clue to the meaning of the word, more probably intends to refer to that wife than to any whom he may marry thereafter. I see nothing in the codicil in question here, or in the circumstances of its execution, to take the case out of the general rule. Decisions as old and as authoritative as those of Kindersley V. C. in Re Burrow's Trusts (1864) 10 LT (NS) 184 and Jessel M.R. in Firth v. Fielden (1874) 22 WR 622 , appear to me to be indistinguishable in principle from the case before us. (at p520)

WINDEYER J. I have had the benefit of reading the judgment of the Chief Justice. I agree that, for the reasons he has given, this appeal should be dismissed. (at p520)

ORDER

Appeal dismissed with costs.