|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
High Court of Australia |
IRWIN v. TYSON [1963] HCA 62; (1963) 110 CLR 592
Wills
High Court of Australia
Dixon C.J.(1), Kitto(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.
CATCHWORDS
Wills - Construction - Forfeiture on alienation, anticipation, bankruptcy etc. - Assignment of interest in corpus asset - Right to asset not indefeasibly vested - Whether beneficiary "anticipated any moneys &which from time to time have been due to him" under will - Bankruptcy of beneficiary - Sequestration order after date for forfeiture - Whether relation back - Bankruptcy Act 1924-1960 (Cth), s. 90.
HEARING
Melbourne, 1962, October 9, 10, 12;DECISION
1963, December 11.2. For the answer contained in the order to the fourth question in the summons, namely, the question what person or persons are entitled and in what shares and proportions to the part of the estate of the testator referred to in the will of the testator as the corpus of the estate, I think that there should be substituted the answer suggested by his Honour, namely, the defendant Harry Bucklow became on 17th July 1960 absolutely entitled to the whole of the beneficial interest in the testator's estate, subject to any right or interest created by him and then subsisting in favour of the defendant Phairs Pty. Ltd. or any other company or person. (at p601)
3. The order for the appointment of the representative party and the order for costs should remain unaltered. (at p601)
KITTO J. This appeal relates to the meaning, and the operation in events that have happened, of certain provisions of a will made on 2nd August 1943. The testator's only marriage had been dissolved years before that date, and he then had only one child, a son, twenty-five years of age, who had recently married but as yet had no children. The will gave the estate to trustees and made provisions of an administrative character as to which no question arises. Beneficial interests were then created by means of directions to the trustees, the leading direction being that the estate should be held upon the trusts afterwards set forth until the son should attain the age of forty-two years or die without issue, or, if he should die leaving issue, until the youngest living of the issue should attain the age of twenty-one. The trusts referred to in this direction related to income only. They fell into two parts. Until the son should (a) die, (b) be made bankrupt, (c) assign his estate, or (d) "by assignment or otherwise anticipate any sum which may otherwise in the future be due or payable to him under my estate", or (e) attain the age of forty-two, whichever event should happen first (the lettering is mine), the income was directed to be paid as to one-eighth to a brother of the testator for life (he died in 1954) and, subject to that, to the testator's son. If any of the first four events should happen before the son should attain forty-two years, the income (until he should attain that age or die) was to go over. Then followed directions as to the corpus of the estate. The trustees were to hold it, with certain special administrative powers, until the son should attain forty-two or die (I expand the language at this point), and if he should die leaving children until the youngest child should attain twenty-one, but if he should die without leaving children then until twelve months after his death. "Upon the period of distribution fixed as aforesaid happening" - it happened on 17th July 1960, for the son then attained the age of forty-two - the trustees were directed, if the testator's brother should have previously died (as it turned out that he had), to convert the estate into money and to pay the proceeds in various ways according as whether, on the one hand, the son should be alive and should not have been made bankrupt, or assigned his estate to creditors, or "anticipated any moneys which from time to time have been due to him under this my Will", or, on the other hand, the son should have been made bankrupt, or died, or "anticipated any payment due to him under this my estate". The only other provision that I need mention at this point is a proviso the effect of which was that if the son should have been made bankrupt and discharged before his death or before attaining forty-two, or should have assigned his estate or any interest therein or anticipated "any payment under this my Will" but the assignment or anticipation should have been cancelled, then, provided that there should have been no repetition of the bankruptcy, assignment or anticipation, the trustees were to treat it as a nullity and make payments to the son as if he had never been bankrupt or had never assigned or anticipated. (at p603)
2. In the foregoing I have refrained from stating either the directions by which the income to arise before the period of distribution was given over if the son should cease to be entitled to it by reason of bankruptcy, assignment of estate or anticipation, or the directions governing the destination of the corpus in the event of the son's having, before the period of distribution, died, or been made bankrupt, or assigned his estate to creditors, or "anticipated any moneys which from time to time have been due to him under this my Will". These directions present difficulties of construction to which much attention has been directed in the course of the case, but the difficulties do not need to be resolved in the view which I take of the provisions I have recounted. (at p603)
3. The son, who is a respondent to this appeal, attained forty-two on 17th July 1960, without having been made bankrupt and without having assigned his estate for the benefit of creditors. But he had entered into a transaction more than a year before, on 10th June 1959 to be exact, which has been held, and I think rightly held, to have amounted to such an anticipation as is referred to in the will. He was a hotelkeeper and the tenant of his hotel. He owed his landlord 2,800 pounds for rent, and would shortly owe him another 1,000 pounds. Moreover, he wanted a loan of 3,000 pounds, and the landlord was willing to lend it to him. So they executed an agreement by which the landlord promised the son (they were called respectively the lender and the tenant in the agreement) to lend the son 3,000 pounds and to forbear to sue for the 3,800 pounds rent, and the son on his part promised, amongst other things, to pay the total amount, 6,800 pounds, in a specified manner with interest. He also promised to execute in favour of the lender a mortgage over the freehold of a named hotel property to secure the principal sum and interest. The hotel property referred to was, and it still is, the principal asset in the testator's estate; and the agreement described it both by name and by saying that the tenant would become entitled to it on attaining the age of forty-two years. The son specifically covenanted that on attaining that age he would call on the trustee of his father's will to transfer to him the freehold of the hotel, and that he would do all things necessary to compel the transfer and to facilitate and make possible the registration of the mortgage. He also covenanted not to give security over or encumber the title to the hotel in priority to the mortgage. The land on which the hotel stood was under the Torrens system. The promised mortgage had therefore to be a memorandum of mortgage depending upon registration for its efficacy to give the contemplated security. The son duly executed a memorandum of mortgage appropriate for the purpose. It was not dated, and a contention was put forward in the Court below that it was executed in escrow. Presumably what was meant by this expression, inapt as it is in relation to such an instrument, was that the execution and delivery of the instrument by the son was made under an agreement that registration should await fulfilment of a condition which in fact was never fulfilled. But the contention even in that form may be put on one side as being completely without support in the evidence. (at p604)
4. It will be noticed that there was no dealing at all with the son's interest in the income of the testator's estate to arise before the period of distribution. It is quite impossible to say that the transaction involved any anticipation of that income, for the son's position in relation to it was exactly the same after the transaction as before. We have been invited to hold that the transaction did not involve any anticipation of the son's interest in corpus either, but in my opinion that contention, rejected as it was below, should be rejected here. It derives no assistance from decisions which establish that an equitable assignment or charge of future property operates upon that property when it comes into existence. The situation is clearest with respect to the 3,000 pounds loan. The effect of the transaction in regard to that sum was that if and when the son should become absolutely entitled to the corpus of the testator's estate his right thereto would be subject to an interest carved out in favour of the lender by the transaction. In practical terms, the son used his future right in such a way as to obtain 3,000 pounds immediately instead of having to wait for it until the right should mature. To do that was, in my opinion, to anticipate pro tanto the corpus payments for which the will provided. (at p604)
5. What, then, was the position which arose in regard to the corpus of the estate when the period of distribution fixed by the will arrived, that is to say when the testator's son attained forty-two? The relevant direction of the will was that the trustees pay the whole of the estate, i.e. the proceeds of conversion, to the son "if my son . . . is alive and has not been made bankrupt or assigned his estate to creditors or anticipated any moneys which from time to time have been due to him under this my Will." The words relating to anticipation are clear and precise, and around them, it seems to me, the testamentary scheme revolves. The description of moneys as from time to time having been due to the son fits exactly the income moneys that from time to time had become payable to the son; but both the exclusively past reference of the "have become" and the notion of recurrence in the "from time to time" are strongly against any reading of the condition as referring to anticipation of corpus. It is true that when the testator turns, as he does at once, to state the converse of the condition in order to introduce the gift over, he is not quite so precise. He says, "if my son . . . has anticipated any payment due to him under this my estate". But there is here nothing to require or justify a departure from the prima facie construction of the condition itself; and indeed, in the context, the expression "any payment due to him" is more adapted to reinforce than to weaken that construction, for it more naturally describes a payment which has fallen due to the son before the period of distribution than a payment which as at that period may or may not become due to him. It is true also that the proviso which appears later in the will refers to a breach of the condition as to anticipation by speaking of the son's having anticipated "any" payment under the will. But it would not be sound, I think, to allow the generality of this expression to prevail over the clear words of the condition as to corpus: rather should "any payment" be understood as meaning any payment which has become due, and therefore as confined to any payment of income. (at p605)
6. What, then, of the language used earlier in the will to describe the subject-matter of the anticipations which are to end the son's right to income and cause the gift over of income to take effect? The expressions used are, first, "any sum which may otherwise in the future be due or payable to him under my estate", and, secondly, "any payment hereunder". These are general words which, if they stood alone, would no doubt extend to payments of corpus moneys. The fact that they appear in a part of the will which is dealing only with income would not be enough to confine their reference to anticipations of income. But it seems to me the better reading of the will as a whole to regard the terms of the central provision as to corpus as reflecting back upon the earlier words and limiting their generality, indicating that the anticipations to which the testator has been referring all along have been anticipations of income only. This seems to have been the view of the trustees, for they continued to treat the son as entitled to income even after the transaction of June 1959. In my opinion they were right in doing so. (at p605)
7. A more general argument that has been submitted is that provisions for cesser of the son's interest in income and corpus in the event of his anticipating income are provisions against improvidence, and it is difficult to suppose that, provision being made against improvidence as to income, provision would not also have been intended against improvidence as to corpus. The validity of the argument depends, however, upon the unexpressed assumption, namely that the testator's concern, in regard to the period before the son's attainment of forty-two, was to prevent his son from spending beyond his current income. The language used seems to me to show that the testator was concerned, not so much to prevent the son from indulging a taste for spending, as to prevent him from depleting in advance the income that from time to time during the selected period should become available from the estate for his current needs. Why the age of forty-two was selected does not appear, but perhaps the testator thought that it was in the intervening period that the greatest likelihood existed of children born to the son being completely dependent upon their father. But however that may be, the point I am making is only that there is nothing necessarily absurd, or improbable, in a construction of the will which on the one hand treats the testator as anxious that for a period the son should not at any time, by reason of his own pre-spending, find himself with less than his current income from the estate, and on the other hand treats the testator as not concerned at all to ensure that at the end of that period corpus should come to the son undepleted by anticipations. (at p606)
8. To me it seems that the gift of the corpus to the son is the dominating provision of the will, and that the terms of the conditions to which that gift is made subject were in the event precisely fulfilled. The son, when he attained forty-two, had not been made bankrupt; he had not assigned his estate to creditors; he had not anticipated any moneys which from time to time had been due to him under the will. In that situation the conditional direction that the whole of the estate should be paid to the son became, in my opinion, absolute. (at p606)
9. Accordingly I would vary the order of the Supreme Court so as to answer the questions in the originating summons as follows: (at p606)
1. No. 2 and 3. Do not arise. 4. The defendant Harry Bucklow became on 17th July 1960 absolutely entitled to the whole beneficial interest in the testator's estate, subject to any right or interest created by him and then subsisting in favour of the defendant Phairs Proprietary Limited or any other company or person. (at p607)
TAYLOR J. I have had the advantage of considering the reasons prepared by Menzies J. in this case and, subject to one matter, I agree with him. The question upon which I differ - and there is more than ample room for difference of opinion concerning the meaning of the ill-conceived provisions of the will under consideration - is concerned with the ultimate disposition of the corpus of the estate. Menzies J. has taken the view that the intention discoverable in the will is that the corpus is to pass to "the wife and children of Harry Bucklow living at the date of his death and if more than one in equal shares". Such a conclusion would necessitate a modification of the answers given by Pape J. in the first instance since he was of the opinion that in the events which had happened the two children of Harry Bucklow had become entitled to the corpus equally between them. I share the same view as Pape J. and I shall endeavour to state shortly my reasons for doing so. (at p607)
2. The provisions of the will relating to the disposition of the corpus directed in the first place that "If my son Harry is alive and has not been made bankrupt or assigned his estate to creditors or anticipated any moneys which from time to time have become due to him under this my will then to pay the whole of my estate to my son Harry" and in the events which happened the distribution was to take place when Harry Bucklow attained the age of forty-two years. So far the terms of the disposition create no difficulty. But then the will goes on to deal compendiously with what is to happen in any one of three events, i.e. the earlier death or bankruptcy of Harry Bucklow or an anticipation by him of "any moneys which from time to time have become due to him under this my will". In any one of these events, the will proceeds, "my trustees are to dispose of the corpus of my estate as follows: (1) If my son has a wife and children then to divide the corpus equally between the wife and children of my said son living at the date of his death for their own use and benefit absolutely. (2) If my son shall die leaving a wife and no children then to pay three-quarters of my estate to his wife and one-quarter equally amongst several named persons. (3) If my son shall die leaving neither wife nor children then to divide the whole corpus amongst the same named persons". (at p607)
3. One of the events upon which these alternative gifts are to take effect is the death of Harry Bucklow before attaining the age of forty-two years and the three clauses to which I have assigned numbers all contemplae the possibility of the death of Harry Bucklow before attaining that age and not at any other time. In cl. 2, for instance, the words "If my son shall die" must be read "If my son shall have died" and the same is true of the opening words of cl. 3. And when it is seen that the several caluses are intended to make comprehensive provision for the disposition of the corpus it emerges, I think, that the words in the first clause "living at the date of his death" contemplate only the event of Harry Bucklow's death before attaining the age of forty-two years and not his death at any later stage. That being so the quoted words could have no relevance unless Harry Bucklow died before he attained that age. But there is sufficient in the will to show clearly that the disposition made by the first clause was intended to become effective in the event of any one of the three events previously specified and it follows, I think, that in the event which actually happened - i.e. anticipation - the expression "living at the date of his death" had no relevance and may be disregarded. In the result I am of the opinion that all of the questions raised were correctly answered by Pape J. (at p608)
MENZIES J. The will of William Bucklow deceased, which was brought before Pape J. for construction and application in the events which have happened, seems to me hardly intelligible and, instead of endeavouring to summarize for myself its muddled provisions, I propose to take advantage of the summary made by the learned judge and to consider a number of questions that require answering in determining this appeal from a judgment which with care and learning has dealt with a number of intricate problems. (at p608)
2. The first of these questions is whether Harry Bucklow, the son of William Bucklow deceased, was "made bankrupt" before 17th July 1960 when he attained the age of forty-two years. An order for the sequestration of his estate was made on 8th September 1960 based upon an act of bankruptcy committed on 20th June 1960 and by virtue of s. 90 of the Bankruptcy Act the bankruptcy is to be "deemed to have relation back to and to commence at" 20th June 1960. I agree with Pape J., however, that Harry Bucklow was made bankrupt not on 20th June 1960 but on 8th September 1960 notwithstanding that, he having been made bankrupt on the later date, his bankruptcy is to be deemed to have commenced on the earlier date. If on 17th July 1960 (the critical date for present purposes) the question had arisen whether or not Harry Bucklow was then bankrupt, it must have been answered no. The date upon which a person is made bankrupt is the date of sequestration - that is, when a sequestration order is made: see Bankruptcy Act, s. 4, definitions of "sequestration" and "available act of bankruptcy", ss. 54 and 55 and provisions such as s. 119 sub-s. (7) pars. (h), (i) and (j). I agree entirely with his Honour's decision and reasoning as to this. (at p609)
3. The second question is whether Harry Bucklow did before 17th July 1960 "by assignment or otherwise anticipate any sum which may otherwise in the future be due or payable to him under my estate" or had he prior to that date "anticipated any moneys which from time to time have been due to him under this my will" or "anticipated any payment due to him under this my estate" or "anticipated any payment under this my will" or "anticipated any payment hereunder", to gather together the various ways in which the will describes what I regard as the one contingency - that is, dealing in advance of the date when it would be payable to him by the executor with the gift of any income or corpus made to him by the testator's will out of the testator's estate. (at p609)
4. In considering this question it is convenient to set out what Harry Bucklow was given by his father's will. In the first place he was given seven-eights of the income of the testator's residuary estate until the death of the testator's brother John (who died on 6th April 1954) when Harry Bucklow became entitled to the whole of such income until he "shall die or be made bankrupt or assign his estate or by assignment or otherwise anticipate any sum which may otherwise in the future be due or payable to him under my estate or until he attains the age of forty-two years whichever event happens first". Secondly, Harry Bucklow was given the whole of the corpus of the testator's residuary estate upon his attaining the age of forty-two years if he "has not been made bankrupt or assigned his estate to creditors or anticipated any moneys which from time to time have been due to him under this my will". The residue of the testator's estate consisted of the freehold of the Renown Hotel, Fitzroy, subject to a first mortgage thereon. (at p609)
5. What was relied upon as "an anticipation" was that on 10th June 1959 Harry Bucklow entered into an agreement with and a mortgage to Phairs Pty. Ltd. On that day when he owed such company 2,800 pounds for rent and was unable to provide for rent totalling 1,000 pounds about to come due in July and August 1959 he borrowed 3,000 pounds from Phairs Pty. Ltd. and entered into an agreement with it covering not only the loan of 3,000 pounds but also the arrears of rent accrued due and accruing due to the extent of 3,800 pounds. By the agreement he undertook to discharge the total liability of 6,800 pounds by payments of: - 200 pounds on 4th October 1959; 1,000 pounds on 4th November 1959; 2,600 pounds on 4th December 1959; 3,000 pounds on 4th January 1960; with interest at 7 per cent per annum. To secure this sum of 6,800 pounds Harry Bucklow agreed to execute in favour of Phairs Pty. Ltd. a mortgage over the freehold of the Renown Hotel (to which it was stated he would become entitled on attaining the age of forty-two years), such mortgage to show the principal sum of 6,800 pounds as being due and owing together with interest at 7 per cent per annum from 10th June 1959. He also covenanted that upon attaining the age of forty-two years on 17th July 1960 he would call upon the executor of William Bucklow deceased to transfer to him the freehold of the Renown Hotel (subject only to the first mortgage already referred to) and that he would do all things necessary to compel the transfer to himself of the title of the hotel and that he would do all things necessary to facilitate the registration of the mortgage and would not give or attempt to give security over the title of the hotel in priority to the mortgage. A mortgage complying with these requirements was executed on 10th June 1959 without being dated. In April 1960 Harry Bucklow obtained from the executor of the testator's estate a transfer of the estate in fee simple of the Renown Hotel to himself dated 17th July 1960 for lodging with the solicitor to Phairs Pty. Ltd. (at p610)
6. Pape J. decided that by reason of the execution of the foregoing documents Harry Bucklow anticipated his interest under the will, and again I agree. The effect of the transactions to which he was a party was that, in consideration of giving Phairs Pty. Ltd. a mortgage over the Renown Hotel (which Harry Bucklow would in due course have the right to have transferred to himself by the executor) and entering into obligations which when fulfilled would enable Phairs Pty. Ltd. to register the mortgage, he obtained from the company an extension of time to pay a debt due and payable, a loan of 3,000 pounds and an extension of time for the payment of 1,000 pounds rent falling due at future dates. In this way he obtained a present advantage by dealing with property to which he was entitled under the testator's will. This amounts to an anticipation of the testator's testamentary benefits. On 10th June 1959 Harry Bucklow had an existing equitable interest in his father's residuary estate: Comptroller of Stamps (Vict.) v. Howard-Smith [1936] HCA 12; (1936) 54 CLR 614 , per Dixon J. (1936) 54 CLR, at p 621 . This, in effect, he dealt with then notwithstanding that the mortgage which he executed over the only asset left in the estate could be registered and take effect in law only when he attained the age of forty-two years and performed his covenant to obtain a transfer to himself of the title to the land subject to the mortgage. Here, upon its proper analysis, is not just the assignment of property to be acquired in the future - although if it were no more than that the indenture and the mortgage executed for value might effect a present and not merely a future assignment: Tailby v. Official Receiver (1888) 13 AC 523 ; In re Lind (1915) 2 Ch 345 and see the observations of Buckley J. as to the date of the creation of a charge over future book debts in Independent Automatics Sales Ltd. v. Knowles & Foster (1962) 1 WLR 974, at p 985 - it is rather the immediate assignment for valuable consideration of an existing equitable interest. Whether this assignment extended to Harry Bucklow's interest in the income of his father's estate, as Mr. Aickin argued, is, upon the view I have taken, unnecessary to decide, although I may say that, having regard to the facts that income and corpus were disposed of by entirely separate dispositions and Harry Bucklow's dealings were confined to the Renown Hotel specifically and not his interests under his father's will, I am not inclined to accept the argument that he charged his interest in the income of the estate. It was argued that the mortgage was given in escrow so that on 10th June 1959 it had no operative effect in equity, but this contention was not supported by the evidence. (at p611)
7. Because of the lack of uniformity in the expression of the disentitling contingencies which appears from the quotations which I have made from the will, a further question arises, whether the anticipation that he made deprived Harry Bucklow of his right to corpus as well as income of the testator's estate. I think it did. The anticipation to deprive him of his right to income is that he should "by assignment or otherwise anticipate any sum which may otherwise in the future be due or payable to him under my estate"; the anticipation to deprive him of his corpus interest is that he "has anticipated any payment due to him under this my estate" - a form of words which must bear the same meaning as those which just precede them, viz. "anticipated any moneys which from time to time have been due to him under this my will". What Harry Bucklow did was to divest himself in favour of Phairs Pty. Ltd. of the right to corpus conferred by the testator's direction to his trustees, viz. "to pay the whole of my estate to my son Harry" upon his attaining the age of forty-two years. This anticipation deprived him of any right to further income because it was an anticipation of a payment under the will; it was also, in the context, an anticipation of a payment "due" under the will. I find it impossible to regard the word "due" in the foregoing provisions as meaning what had become due and payable at the date of the transaction which amounted to the anticipation. The emphasis throughout is against "anticipating" and there could not be anticipation except by dealing with what according to the will is not presently payable. To deal with what is already due and payable is not to anticipate anything. It seems to me that for the purposes of the provisions under consideration "moneys" or "payments" have "been due" to Harry Bucklow under the testator's will at the times when, in accordance with its terms, he was entitled to receive them in the future. I agree, therefore, with the decision of Pape J. that Harry Bucklow was not entitled to income after 10th June 1959 and was on his attaining the age of forty-two years not entitled to the corpus. (at p612)
8. The next question is, who became entitled to income between 10th June 1959 when the anticipation occurred and 17th July 1960 when Harry Bucklow reached the age of forty-two years? On 10th June 1959 Harry Bucklow had a wife and two children, but his wife died on 8th September 1959. The direction of the will as to the payment of income after anticipation by Harry Bucklow before attaining the age of forty-two years is that until that event the trustees should pay it "if my said son has a wife and children then equally between the said wife and children until the youngest living child shall attain the age of twenty-one years". This clearly enough would carry the income one-third to the wife and one-third to each of the children until the death of the wife on 8th September 1959. Pape J. so decided and decided further that the gift of income to the wife and children was a gift to a composite class and upon the death of the wife the whole income became payable to the two children equally. It seems to me that the words "a wife and children" in this will described a composite class (Barnes v. The Equity Trustees Executors and Agency Company Limited (1941) VLR 40 and the cases there cited) and, further, that it was clearly enough the intention of the testator that, upon the death of a member of the class after the gift had taken effect, the income should go to the survivors equally. I agree, therefore, with the conclusion to which Pape J. came on this point. (at p612)
9. The question, who became entitled to the corpus on 17th July 1960 when Harry Bucklow reached the age of forty-two years, is one that I find much more difficult. The actual terms of the will relating to this matter are: "But if my son has been made bankrupt or has died or has anticipated any payment due to him under this my estate then my trustees are to dispose of the corpus of my estate as follows: If my son has a wife and children then to divide the corpus equally between the wife and children of my said son living at the date of his death for their own use and benefit absolutely: or if my son shall die leaving a wife and no children then to pay three quarters of my estate to his wife and the one quarter equally amongst the persons hereinafter named: or if my son shall die leaving neither wife nor children then to divide the whole corpus amongst the persons hereinafter named". Then follows a list of eight names. (at p613)
10. Disregarding as inapplicable the special provision relating to the postponement of distribution until the death of the testator's brother John, the date of distribution of the corpus of the testator's estate is fixed by the following words "as to the corpus of my estate to my trustees upon trust to hold same until my son attains the age of forty-two years or if he shall die leaving children until the youngest of his children attains the age of twenty-one years or if he shall die without leaving children then until twelve months after his death whichever of the three events in time happens first". Because the first of these events to happen was that Harry Bucklow attained the age of forty-two years on 17th July 1960, that became the date when the testator's directions regarding income ceased to operate and his directions regarding corpus began to operate. By that date, as I have already said, Harry Bucklow had forfeited his interest in corpus by anticipation so that it is necessary to concentrate attention upon the directions as to corpus which apply in such circumstances. These have already been stated and it is to be observed that the jumble of words which has been employed relates not only to what would happen upon Harry Bucklow's reaching the age of forty-two years, but to other possibilities which did not in fact happen. Those words, it will be noted, do not in express terms cover the particular contingency which occurred (that is, Harry Bucklow's attaining the age of forty-two years and having children but no wife). While, like Pape J., I have no doubt that some provision was in these circumstances intended, I, taking a view different from his Honour's, consider the intention was that this provision should be made for the children and any wife living at the death of Harry Bucklow and not when he attained the age of forty-two years or when any forfeiture occurred. This, it seems to me, follows from the first direction which confines the gift to those living at the time of the son's death and the two following directions each of which is prefaced by the words "if my son shall die". I see no grounds for introducing a different contingency into any of the provisions of the will. I think that the proper construction of the first direction is to treat it as constituting a gift to a composite class - that is, the wife and children of the testator's son living at the time of his death - so that the death of the wife at an earlier date would not result in any lapse but that such of his children and any other wife alive at the date of the death of the testator's son would take, and if more than one, equally, provided that some person belonging to the class to take were alive when the son reached the age of forty-two years. This was, of course, the case. Pape J. rejected this mode of construction because of the words "living at the date of his death". While appreciating the difficulty that the construction which I have adopted could occasion had it been the children and not the wife who had died before Harry Bucklow attained the age of forty-two years because the second direction would then operate and upon the death of Harry Bucklow his wife would take not the whole of the residue under the first direction but three-quarters of the residue under the second, I would in case of any conflict between the first and second directions give effect to the second as the more particular provision. Furthermore, although in a well-drawn will it would be proper to construe the circumstances covered by each direction as mutually exclusive, I base nothing upon the absence of a logical arrangement in endeavouring to extract the testator's intention from the provisions of this will. I am aware, too, that the construction I have adopted defers the right to corpus until Harry Bucklow's death, leaving the income between 17th July 1960 and that event not expressly disposed of - perhaps without any sensible reason having regard to the will as a whole - but in this will neither lack of reason nor a gap in the dispositive provisions is matter for surprise. Moreover, I surmise that it was the testator's anxiety to keep open for his son the opportunity to re-instate any interest that he might forfeit - indicated by the later provision relating to discharge from bankruptcy or cancellation of an anticipation - which dictated the reiterated provision that his death should be the earliest contingency upon which others should become absolutely entitled to corpus. Pape J. answered the question relating to this part of the will by saying that Harry Bucklow's two children are now entitled to the corpus of the testator's estate equally between them and he did so by acceding to the argument that this conclusion should be reached either by applying the rule in Jones v. Westcomb (1711) Prec Ch 316 (24 ER 149) or by supplying words obviously omitted. His Honour said: "I think that there is in reality little difference between the two arguments, and that in substance they produce the same result" and so he concluded that the relevant provision should be considered as if it read: "If my son has a wife and children then to divide the corpus equally between the wife and children of my said son living at the date of his death or at the date when (if he has been made bankrupt or had anticipated any payment due to him under my estate) he attains the age of forty-two years". There are, I think, objections to this construction and answers based upon it. When his Honour's paraphrase of the provision is looked at, the words seem to me to leave open the question at what point of time is the son to have a wife and children for, in the circumstances and context, I would have thought the words "If my son has a wife and children" refer to when Harry Bucklow attained the age of forty-two years (i.e. 17th July 1960), by which time he had no wife. Furthermore, although I think it is clear on the face of the will that the testator has not accurately or completely expressed his meaning by the words he has used, it is also not clear to me that particular words have been omitted - and certainty is necessary if words are to be supplied to effectuate some intention collected from the context. In particular, as I have said, I am by no means satisfied that the testator intended either his son's wife or children to get the corpus of his estate before the death of the son and I can find no justification for treating the date of bankruptcy or anticipation before Harry Bucklow reached the age of forty-two years as the date for ascertaining whether he has a wife or children for the purposes of the provision under consideration. Finally, if in accordance with Jones v. Westcomb (1711) Prec Ch 316 (24 ER 149) a new contingency is to be implied, or other words are to be supplied, it seems to me that an entirely new provision would have to be inserted and I am not confident what it should be. His Honour answered the question relating to this part of the will by saying that Harry Bucklow's two children (William Michael Bucklow and Peter Cameron Bucklow) are now entitled to the corpus of the testator's estate equally between them but, for the reasons I have given, I would vary this answer and say "the wife and children of Harry Bucklow living at the date of his death and if more than one in equal shares". (at p615)
11. For the reasons which I have given I would vary his Honour's answer to question 4 as already indicated and otherwise dismiss the appeal. (at p615)
WINDEYER J. I agree in the judgment of Kitto J. The will is far from clear. But, read as a whole, it seems to me that the provision for a gift over of the son's interest, which was to occur in the event of his anticipating "any payment due to him under this my estate" is a reference to what had earlier been mentioned, namely an anticipation of income currently arising in the period before the son attained the age of forty-two. I do not think that, having regard to its context, the phrase includes an anticipation of the capital that I consider undoubtedly occurred. Because I take a different view from that of Pape J. of the meaning of one part of the will, not because I differ from his conclusion as to the effect in law of what was done by the testator's son, I would allow the appeal and vary his Honour's order in the manner that my brother Kitto proposes. (at p616)
ORDER
Appeal allowed. Order of the Supreme Court varied as follows: After the words in the said order "It is ordered that the questions asked in the said summons be answered as follows", the following answers to the questions in the said order set out are substituted.Subject to the foregoing variations the order of the Supreme Court is confirmed.
Costs of the appeal to be paid out of the estate.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCA/1963/62.html