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High Court of Australia |
POHLNER v. PFEIFFER [1964] HCA 8; (1964) 112 CLR 52
Will
High Court of Australia
Dixon C.J.(1), Kitto(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.
CATCHWORDS
Will - Construction - Ademption - Gift of share and interest in Crown leasehold property owned in common with sister - Gift of share and interest in livestock, plant, etc. on property at decease of testatrix and &which should be owned in common with sister or should form portion of assets of partnership between testatrix and sister in existence at decease of testatrix - Entirety of leasehold and other property acquired by testatrix between will and death - Rights of specific and residuary beneficiaries - Wills Act, 1936-1940 (S.A.), ss. 26, 27.
HEARING
Adelaide, 1963, September 25, 26;DECISION
1964, February 25.2. The substance of the questions raised by the originating summons is whether in the events that happened the leasehold land devolved upon the death of the testatrix according to the clause in the will (by number cl. 4) which, as drawn, related to the share and interest of the testatrix in the leasehold property at Paratoo known as Oak Park, or devolved under the clause (by number cl. 5) which disposed of the residue in favour of the two daughters, Clair Julia Pfeiffer and Joy Ashley Betty. It is clear that the will as written and read as at the date of its execution dealt with the half interest of the testatrix in the land and livestock and other assets as assets of a partnership. It is equally clear that the assets of which the testatrix died possessed and which it is sought to bring under these clauses were her property beneficially as sole owner. (at p58)
3. The summons was heard by Chamberlain J. and he made an order declaring that upon the true construction of the will the leasehold property known as Oak Park passed as to one half share therein to the defendant Pohlner and his two sisters pursuant to cl. 4 of the will and as to the remaining half share therein to the defendant Clair Julia Pfeiffer and Joy Ashley Betty pursuant to cl. 5 of the will. The order declared that the livestock working plant implements machinery farming and grazing stores stocks and provisions which were on the said land at the date of death of the testatrix and which were at that date owned solely by the testatrix fell into and formed portion of the residuary estate and passed to Clair Julia Pfeiffer and Joy Ashley Betty pursuant to cl. 5 of the will. From this order the defendant Pohlner appeals. (at p58)
4. Section 27 of the Wills Act, 1936-1940 of South Australia reproduces s. 24 of the English Wills Act, 1837. It provides that "every will shall be construed with reference to the real and personal estate comprised in it to speak and take effect as if it had been executed immediately before the death of the testator unless a contrary intention appears by the will." The defendant appellant, Pohlner, contends that under this provision the words in cl. 4 of the will "as to all my share and interest in the Leasehold property situated at Paratoo in the said State known as Oak Park and being . . . which said property is owned by me in common with my sister Stella Mary Marguerite Stockman and all my share and interest in the livestock working plant . . . which shall be on such property as aforesaid at my decease and which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease", when read in pursuance of s. 27 govern the whole of the assets consisting of Oak Park. I find it impossible to take the view that although the chattels were on Oak Park at the time of the death of the testatrix they were governed by the interpretation which is said to depend on s. 27. The provision describes the chattels to which it applies as chattels "which shall be on such property as aforesaid at my decease and which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease." Whether you read these words as at the date when they were written or as at the date of the death of the testatrix, they cannot apply to the chattels which were on Oak Park at the time of her death. It seems to be assumed that the failure of the testatrix to alter her will indicated that her intention continued of disposing of at least a half interest in Oak Park in favour of her brother and sisters rather than in favour of her children and that to treat the leasehold interest as necessarily falling into residue was in some way inconsistent with the justice of the case. To my mind speculation as to why she did not replace her will with another will after she had acquired the full interest in Oak Park is necessarily fruitless. She may have been told that her disposition of Oak Park was inapplicable now she had acquired the full interest. She may have been told the contrary. She may have been told nothing about it. All we know is that she did not alter her will and it remains for us to say on its terms whether the provision can apply. The provisions contained in s. 27 of the South Australian Act or s. 24 of the English Act are notoriously difficult to apply. If one looks at early editions of Jarman and follows the course down the years of the authorities one can see that the question has appeared difficult to persons trained in the construction of wills for well over a hundred years. In a sense some of the questions are metaphysical and involve such logical conundrums as whether proper names are connotative. In the present case I do not see how the clause numbered 4 can embrace the full beneficial interest in the leasehold. That is another subject matter, and read the words at any date you choose, they are not apt to carry the full beneficial interest in the entirety. That would mean that the assets must fall under the residuary clause. But we were informed that if such were our conclusion the parties including the appellant simply desired the appeal to be dismissed. All that it is necessary to say therefore is that the appeal should be dismissed and a special order should be made as to costs. (at p60)
5. I should add that I have had the advantage of reading the judgments of my colleagues and that I prefer the reasoning of Taylor J. (at p60)
KITTO J. This is an appeal from a judgment of the Supreme Court of South Australia (Chamberlain J.) upon an originating summons by which the trustee of the will of Hilda Clara May Jones deceased sought a determination of certain questions as to the construction of the will. (at p60)
2. The dispositive provisions of the will, which alone it is necessary to mention, are contained in clauses numbered 4 and 5. By cl. 4 the testatrix gave the whole of her estate to her trustee and declared trusts with respect to certain property in favour of a brother and two sisters. Clause 5 created trusts with respect to the remainder of the estate. The questions submitted to the Court were concerned with the operation of cl. 4. At the date of the will a leasehold grazing property known as Oak Park was held by the testatrix and a sister of hers in common in equal shares. On the property the two of them were at that time carrying on a grazing business in partnership. The trusts in cl. 4 of the will were directed (speaking in broad terms for the moment) first to the interest of the testatrix in Oak Park and secondly to her interest in livestock and other chattels. If the situation in regard to Oak Park as between the testatrix and her sister had remained unchanged until the death of the testatrix the meaning and application of the trusts declared in cl. 4 of the will would have presented no difficulty. But it did not remain unchanged. Before the death of the testatrix, which occurred nearly five years after the date of the will, the partnership between the sisters was dissolved and the testatrix acquired her sister's interest in Oak Park. Thereafter she carried on there a grazing business of her own. How cl. 4 operated in the situation thus brought about is the problem. It is a problem as to the interpretation of the words which describe the subject-matter of the dispositions in cl. 4. It is therefore a problem to be considered with the statutory provision in mind, first made by s. 24 of the Wills Act, 1837 in the United Kingdom and now found for South Australia in s. 27 of the Wills Act, 1936 (S.A.), that every will shall be construed with reference to the real estate and personal estate comprised in it to speak and take effect as if it had been executed immediately before the death of the testator unless a contrary intention appears by the will. (at p61)
3. As regards Oak Park, the trust declared was of "all my share and interest in the Leasehold property situate at Paratoo in the said State known as Oak Park and being Block 16 Counties of Herbert and Kimberley containing Eighteen thousand four hundred acres or thereabouts which said property is owned by me in common with my sister Stella Mary Marguerite Stockman". As regards the livestock and other chattels (which I shall call the chattels), the trust was of "all my share and interest in the livestock working plant implements and machinery and in the farming and grazing stores stocks and provisions (not being produce of any kind grown or held for the purpose of sale) which shall be on such property as aforesaid at my decease and which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease". (at p61)
4. The interest which the testatrix had at her death in the chattels then on Oak Park, that is her absolute interest as sole owner, is plainly outside the terms of the trust and consequently falls into residue; for the chattels were not then owned by the testatrix in common with her sister, nor were they portion of the assets of any partnership. But the position in regard to Oak Park itself is not so clear. The only description of the subject-matter of the gift is in the words "my share and interest" in the property. As a matter of English, that description is equally capable of meaning either the share and interest the testatrix had at the date of the will or the interest she should have at her death. Accordingly s. 27 of the Wills Act requires, unless a contrary intention appears from the will, that it be taken to mean the share and interest she should have at her death. If a contrary intention is to be found at all it must be found by reading the expression "which said property is owned by me in common with my sister" as explaining the words "my share and interest" so as to confine them to the share and interest which the testatrix had under the tenancy in common with her sister which existed at the date of the will. This is not prima facie their purpose. Literally they do no more than supplement the already ample description of Oak Park. It is true that if there is nothing more in them than that, their presence in the will shows only that the draftsman, while not intending to affect the construction or application of the words "my share and interest", thought it desirable to make clear that he had used those words because as things stood there was only a limited interest to dispose of. But does the expression, merely descriptive of Oak Park though it is in terms, yet convey the meaning that the subject-matter of the disposition is the particular share and interest in Oak Park which the testatrix owned at the date of the will, to the exclusion of any other that she may come to own? Speculation, however reasonable it may seem, will not do. Only if an intention contrary to s. 27 actually appears from the words of the will can the gift be held to fail by reason of the union of the two undivided interests that took place during the lifetime of the testatrix. In my opinion no such intention does appear. (at p62)
5. Comparison is inevitable with the terms by which the testatrix chose to describe what she intended to deal with in the case of the chattels. The chattels are identified by a description of which an essential part is that at the death of the testatrix they "shall be" on the property, and either "shall be" owned by the sisters in common or "shall form" portion of the assets of any partnership between them. It is because the words used are so explicit that the expression "my share and interest" in relation to the chattels must mean, without any assistance from s. 27 of the Wills Act, whatever share and interest in such chattels the testatrix may possess at her death. On the other hand the statement that Oak Park "is" owned by the testatrix in common with her sister obviously refers to the state of the title at the date of the will: there is no room at this point for any operation of s. 27 of the Wills Act, because that section relates only to the real and personal estate comprised in the will, which here is the testatrix's share and interest in Oak Park and not Oak Park itself. But, as I have said, there is room for the section to operate upon the expression "my share and interest". (at p62)
6. The marked difference between Oak Park and the chattels in regard to the time as at which title is referred to is explained in the argument for the residuary legatees as due to the testatrix's having thought that, if the legatees named in cl. 4 were to be enabled to take her place in relation to the business which she supposed would still be a going concern at her death, on the one hand allowance would have to be made in the gift of her interest in the chattels for the probability of changes in the identity of the chattels in the meantime, but on the other hand no allowance need be made for change in regard to the land, for there was no likelihood of the business moving from Oak Park. But an expectation that Oak Park would continue to be the business premises is not the same as an expectation that the respective interests of the sisters in that property would continue unaltered. There seems to me to be no ground for inferring that the testatrix addressed her mind at all to the possibility of a change occurring in the nature or extent of her interest either in Oak Park or in the chattels for the time being on the property - save that she did advert to the alternative possibilities of the chattels being owned either in common or as partnership assets. But even if the inference might properly be drawn that she considered the possibility of a change in the relative positions of her sister and herself in respect of Oak Park, there would still be no justification for saying that by the will she disclosed a positive intention that when she died the words "my share and interest" should not speak and take effect as if the will had been executed immediately before her death. If probabilities were to decide the question, it would be difficult to attribute to her an intention that in the event (for example) of her acquiring one-half of her sister's interest in Oak Park and of the chattels cl. 4 should carry only her original half-interest in Oak Park though it should carry a three-fourths interest in the chattels. (at p63)
7. But whatever may be thought of the probabilities, in my opinion the language used falls distinctly short of making it appear that the testatrix intended to confine the gift in respect of Oak Park to the precise share and interest she had in that property at the date of the will. The case may, I think, be summed up by saying that (1) the subject-matter being given by means of a generic description - description, that is to say, inherently admitting of increase and decrease of the subject-matter - the use of the pronoun "my" does not suffice without more to exclude the operation of s. 27 of the Wills Act, and on the contrary the pronoun is to be read prima facie, by force of that section, as if used at the date of the death and therefore as referring to ownership by the testatrix at that date; and (2) the addition to the description of Oak Park of the statement of fact that the property was owned by the testatrix and her sister in common at the date of the will is not enough to show an intention that "my" shall be understood as referring to ownership by the testatrix in virtue of the tenancy in common existing at that date: cf. Cox v. Bennett (1868) LR 6 Eq 422, at pp 425, 426 A decision to the contrary would, I think, be out of line with the whole current of decisions upon s. 24 of the Wills Act (U.K.); see particularly In re Ord; Dickinson v. Dickinson (1879) 12 Ch D 22; In re Russell (1882) 19 Ch D 432; In re Horton; Lloyd v Hatchett (1920) 2 Ch 1; In re Bancroft; Bancroft v Bancroft (1928) Ch 577, at p 579 (at p64)
8. In my opinion the appeal should be allowed and the order to be proposed by my brother Menzies should be made. (at p64)
TAYLOR J. The will of the testatrix was made on the 20th February 1956 and at that time she and her sister, Stella Mary Marguerite Stockman, carried on a pastoral business in partnership. The property upon which the business was carried on was known as Oak Park and the two sisters were the lessees of the property as tenants in common in equal shares. Included in the partnership assets were certain livestock, working plant, implements and machinery and farming and grazing stores (hereinafter referred to as livestock and plant) and these were their joint property. However, late in 1959, the partnership was dissolved, an auction sale took place and the testatrix acquired by purchase the whole of the interest of her sister in the subject land and also the whole of her interest in the livestock and plant then on the property. Thereafter the testatrix conducted the pastoral business upon the property as the sole owner thereof and, apparently, was so doing at the time of her death on 25th November 1960. (at p64)
2. The questions which arise in the case are in relation to cl. 4 of the will which is in the following terms: "4. I give the whole of my estate to my Trustee upon trust as to all my share and interest in the Leasehold property situate at Paratoo in the said State known as Oak Park and being Block 16 Counties of Herbert and Kimberley containing Eighteen thousand four hundred acres or thereabouts which said property is owned by me in common with my sister Stella Mary Marguerite Stockman and all my share and interest in the livestock working plant implements and machinery and in the farming and grazing stores stocks and provisions (not being produce of any kind grown or held for the purpose of sale) which shall be on such property as aforesaid at my decease and which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease: - (a) as to one half thereof for my brother Charles Alick Herman Pohlner - (b) as to the other one half thereof for such of them my sisters Agnes Nelly Elizabeth Pretoria Gruneklee and Clara Louisa Thelma O'Leary as shall survive me and if more than one in equal shares". We are asked to say whether the whole or any part of the estate of the testatrix passes by virtue of this clause to the beneficiaries therein specified. (at p65)
3. The problem in the case arises, of course, by reason of the fact that the partnership, with its incidence of common interests in the partnership assets, was dissolved after the date of the execution of the will and prior to the death of the testatrix. But it is further complicated by the particular form of the disposition. In form it is a twofold disposition but it is clear enough that what in substance the testatrix intended was a composite disposition of an interest in the partnership business. (at p65)
4. There seems little doubt that the second part of the disposition did not, upon any view, effectually dispose of any interest in the livestock and plant on the property at the time of the death of the testatrix, for, in terms, it related to her "share and interest" in the livestock and plant which should be on the property at the time of her decease "and which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease". The quoted words clearly constitute a limitation concerning the character of the property with which the disposition purports to deal and since no property of that character was in existence at the time of the death of the testatrix it passed nothing to the three named beneficiaries. The first part of the disposition is, however, somewhat differently constructed. It purports to deal with "all my share and interest" in the leasehold property which is, thereafter, made the subject of, at least, a twofold description. It is described as "known as Oak Park" and as "being Block 16 Counties of Herbert and Kimberley containing Eighteen thousand four hundred acres". Thereafter follow the words - "which said property is owned by me in common with my sister". The contention for the appellant is that these words are but descriptive of the property only and in no way operate to circumscribe or limit the "share and interest" therein with which the disposition purports to deal. This, I think, is literally true and, if nothing else appeared in cl. 4 and this were the only matter appearing for our consideration, I would be disposed to think that the entire leasehold interest would pass to the three named beneficiaries. Having in mind s. 27 of the Wills Act, 1936-1940 and cases such as Struthers v. Struthers (1857) 5 WR 809; Drake v Martin [1856] EngR 863; (1856) 23 Beav 89 (53 ER 35); Miles v Miles (1866) LR 1 Eq 462; Cox v Bennett (1868) LR 6 Eq 422; and in In re Russell (1882) 19 Ch D 432 there would be much to be said for this proposition. But the earlier disposition does not stand alone and it would not, I think, be proper to seek to ascertain the intention of the testatrix from a consideration of the earlier part of cl. 4 standing in isolation. Indeed, to give effect to the appellant's contention would, it seems to me, produce a result diametrically opposed to the intention discoverable upon an examination of the whole of the clause. That intention, as I see it, was, in substance, to dispose of an interest in the pastoral business to the three named beneficiaries and it would be entirely foreign to this intention to hold that the effect of the disposition was, on her death, to pass the land to one set of beneficiaries and the livestock and plant to another. (at p66)
5. It is true, of course, that the disposition was not, in terms, a disposition of the partnership interest which existed until 1959. But it is beyond doubt that the testatrix contemplated that it would be in relation to such an interest that the clause would eventually operate if it were to operate at all. So much is clear from the limiting words in relation to the livestock and plant - "which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease". Comparison of this expression with the form of words appearing in the earlier part of the clause - "which said property is owned by me in common with my sister" - indicates a difference in the approach made by the testatrix to the disposal of the land used for the business of the partnership and to the disposal of assets used in the business and which would change from time to time. With respect to the latter the testatrix expressly made it clear that the interest which was to pass was a common or partnership interest existing at her death. But she saw no necessity to make like express provision with respect to a fixed and unchanging asset such as the land upon which the business was carried on. Therefore what she purported to dispose of was her "share and interest" in the partnership land. In these circumstances the words "share and interest" assume a special significance and, in my view, make it sufficiently clear that the subject-matter of the disposition was the interest as tenant in common which the testatrix had until December 1959. (at p66)
6. These observations are substantially in accordance with the views expressed by the learned judge of first instance but, nevertheless, he answered the questions raised concerning the leasehold land by declaring that it passed, as to a one-half interest, to the beneficiaries named in cl. 4 and, as to the remaining one-half interest, to the residuary beneficiaries. But we are told that it was not contended on behalf of the residuary beneficiaries upon the original hearing that the whole of the leasehold land fell into residue and that in the event of the appellant's arguments being rejected they desire, merely, that the appeal should be dismissed. Accordingly, it is unnecessary for us to go further and hold that, since the interest of the testatrix as a tenant in common had ceased to exist at the time of her death, no interest in the land passed under the clause. (at p67)
7. I should add that I agree with my brother Menzies that the costs of the proceedings in the Supreme Court should be borne by the residuary estate and, accordingly, I am of the opinion that, subject to a variation of the order with respect to the costs of the proceedings below, the appeal should be dismissed. (at p67)
MENZIES J. When the testatrix made her will on 20th February 1956, she and her sister Stella were tenants in common in equal shares of the leasehold grazing property known as Oak Park, upon which they were carrying on a grazing business in partnership. (at p67)
2. When the testatrix died on 25th November 1960 she was the sole owner of the leasehold of Oak Park, upon which she carried on a grazing business on her own account. She had in December 1959 acquired the whole of the interest of her sister Stella in the leasehold and in the livestock and working plant belonging to the partnership. The partnership was dissolved on 16th December 1959. (at p67)
3. Clause 4 of the testatrix's will was in the following terms: "I give the whole of my estate to my Trustee upon trust as to all my share and interest in the Leasehold property situate at Paratoo in the said State known as Oak Park and being Block 16 Counties of Herbert and Kimberley containing Eighteen thousand four hundred acres or thereabouts which said property is owned by me in common with my sister Stella Mary Marguerite Stockman and all my share and interest in the livestock working plant implements and machinery and in the farming and grazing stores stocks and provisions (not being produce of any kind grown or held for the purpose of sale) which shall be on such property as aforesaid at my decease and which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease:-(a) as to one half thereof for my brother Charles Alick Herman Pohlner (b) as to the other one half thereof for such of them my sisters Agnes Nelly Elizabeth Pretoria Gruneklee and Clara Louisa Thelma O'Leary as shall survive me and if more than one in equal shares". By cl. 5 of her will the testatrix directed her trustee to pay debts, funeral expenses, debts and legacies out of the remainder of her estate and to stand possessed of the balance for her two daughters. (at p68)
4. In the circumstances which I have recounted, the trustee instituted proceedings by way of originating summons - in which a representative of the three beneficiaries named in cl. 4 of the will and a representative of the two residuary beneficiaries were named as defendants - to have determined inter alia (1) what persons are entitled in what shares to the leasehold of Oak Park and (2) what persons are entitled in what shares to the livestock and plant belonging to the testatrix which were upon Oak Park at the date of her death. Chamberlain J. decided that the beneficiaries named in cl. 4 of the will are entitled to a moiety of the leasehold at Oak Park as tenants in common in equal shares with the residuary beneficiaries who are entitled to the other moiety, and that the residuary beneficiaries are solely entitled to the said livestock and plant. His Honour ordered that the costs of all parties to the originating summons should be paid out of the leasehold. It is against these orders that the beneficiaries named in cl. 4, through their representative party, have appealed. (at p68)
5. I am in full agreement with his Honour's decision that the residuary beneficiaries are alone entitled to the livestock and plant in question. When she died, the testatrix had no livestock or plant interest in common with her sister or forming portion of the assets of any existing partnership between her sister and herself. There was therefore no livestock or plant answering the description to be found in cl. 4 of the will. As the learned judge decided, the testatrix's plant and livestock at Oak Park at the date of her death constituted part of the residue of her estate and was disposed of under cl. 5 to the residuary beneficiaries and not under cl. 4 of her will to the beneficiaries there named. (at p68)
6. The destination of the leasehold of Oak Park is not so obvious, but again the problem is whether the testatrix at the date of her death had property answering the description to be found in cl. 4. If her leasehold estate in Oak Park answered the description, then that clause carried that estate to the beneficiaries there named; otherwise, that estate fell into residue and was disposed of by cl. 5. If there were nothing more, I would have no difficulty in treating the words "all my share and interest in the Leasehold property . . . known as Oak Park" as covering the leasehold title which the testatrix had at the date of her death, but it is contended that the words "which said property is owned by me in common with my sister" show that the words I have just quoted should not be so understood. It is, of course, true that, in the circumstances existing when the will was made, cl. 4 would have disposed of a moiety of the leasehold regardless of the words "which said property is owned by me in common with my sister" but, when the circumstances changed and the testatrix became the sole owner of the leasehold, the words "all my share and interest" would, I think, cover the whole leasehold title, unless the words "which said property is owned by me in common with my sister" prevent them from being so understood. These last words refer, of course, to the ownership of the property at the date of the making of the will. Then they were correct but quite unimportant because they did no more than indicate how the leasehold property in which the testatrix was disposing of all her interest was then owned. It would give them an importance that they never had to regard them as requiring that the description of the subject matter of the gift should be read as "my interest as tenant in common with my sister Stella in the leasehold of Oak Park" and nothing else so that the gift would fail in the event of the testatrix's interest in the leasehold at the date of her death being other than a tenancy in common with her named sister. If, for instance, her sister had predeceased the testatrix and had disposed of her moiety by will to the testatrix or someone else, I do not think the testatrix's disposition would, therefore, have failed. The testatrix, in describing how the leasehold was then held, was not putting it in the power of her sister to destroy her disposition of her interest in it. The will, of course, speaks as from the date of the death of the testatrix "with reference to the real and personal estate comprised in it" unless a contrary intention appears in the will: Wills Act, 1936, s. 27. This section requires, in the absence of a contrary intention, that words in a will sufficiently describing property which a deceased person had at the date of death should carry that property whether or not it was the property of the deceased when the will was made and it applies to the leasehold in Oak Park if it is sufficiently described in cl. 4; it cannot, however, be regarded as requiring the words "which said property is owned by me in common with my sister, etc." to be regarded as a statement of how the leasehold was owned at the date of the death of the testatrix. Moreover, if the words were to be so understood, the statement would have to be regarded as nothing more than a false description of something sufficiently described in the will. (at p69)
7. A number of authorities were referred to bearing upon the effect of provisions such as s. 27. I do not think these authorities have much to do with the problem that faces us here for it seems to me that there can be no doubt that, if the words of cl. 4 are sufficient to describe it, that clause carries whatever interest the testatrix had in the leasehold at the date of her death, for no intention that the property given should be ascertained at a date other than the date of death appears. This is not a case where the words used in a will to describe the subject of a bequest could apply either to something that the testatrix had when she made her will or something different which she had when she died and the question which arises is whether the testatrix has manifested an intention to give the former rather than the latter. The problem here is whether the testatrix had, when she died, anything falling within the description of the subject-matter of the bequest to be found in the first part of cl. 4 of the will. If the subject matter of the disposition is a tenancy in common with her sister Stella in the leasehold, then she had no property answering that description when she died and the bequest entirely fails for lack of subject matter, for I see no way of construing the will as creating a tenancy in common between the beneficiaries named in cl. 4 and the residuary beneficiaries. On the other hand, if the subject of the gift is any interest she had in the leasehold, the bequest would clearly enough carry the leasehold itself to the named beneficiaries. As I have already indicated, I prefer the second alternative to the first, upon the words of the will itself without more. Furthermore, however, while remembering that decisions upon the words found in one will cannot determine and can rarely assist in determining what is meant by different words in another will, I do gain some assurance from In re Russell (1882) 19 Ch D 432 where it was decided that a gift in a will made when the testator was carrying on business in partnership with his two brothers of the income from "all my part, share, and interest of and in the said co-partnership trade or business" operated to entitle his widow to the whole of the income of the business when the circumstances were that the testator had acquired the shares of his two brothers between the date of his will and the date of his death. Bacon V.C. said:- ". . . when you find the scope of a man's will to be, 'I, being a manufacturer, in partnership, give to my wife the enjoyment of all the share in the business I am carrying on to which I may be entitled at my death', it cannot be, because that property has become increased by his own purchases or by the death of his brothers, that the provision he has made is to be confined to the one-third of which he was possessed at the date of his will. That would be a very violent construction, and one which I think the Court is not compelled to adopt" (1882) 19 Ch D, at p 441 (at p70)
8. So it is that, as to the bequest of her interest in the leasehold of Oak Park, I differ with respect from the conclusion which Chamberlain J. reached. Indeed, I do not see how cl. 4 can be construed as operating to carry to the beneficiaries there named half of the leasehold as tenants in common in equal shares with the residuary beneficiaries. Had I come to the conclusion that cl. 4 carried no part of the leasehold interest, I would, in the absence of a cross-appeal and in conformity with the invitation of the respondent, merely have decided that the appeal on this point should be dismissed but, as I have stated, in my opinion cl. 4 operates to carry the whole of the leasehold interest to the beneficiaries there named. (at p71)
9. As to costs, the order which Chamberlain J. made was contrary to general practice, as I think the learned judge recognized. Here, the trustee needed and sought a determination from the Court about the operation of cll. 4 and 5 of the will and it was necessary to join the persons interested as beneficiaries. The ordinary rule in such a case is that costs should be paid out of the residuary estate, not out of some particular asset of the estate, and it seems to me that the testatrix's direction that testamentary expenses should be paid out of residue itself indicated the order which should have been made. His Honour, however, decided to depart from the ordinary rule but did so, I think, without sufficient justification. In proceedings such as the trustee instituted here, the actual result should not, except in very special circumstances, determine how costs should be borne. His Honour, however, having found partly in favour of each set of defendants, made an order which, in effect, left each to bear half the cost of the proceedings, so making the costs follow the event. It is perhaps sufficient to indicate the unexpected operation of this order for costs to point out that, because in the view I have taken the contention of the beneficiaries named in cl. 4 succeeds, they, by reason of this success upon the appeal, would be burdened with more costs than was the case when they were less successful. This was, I think, a case where it was wrong to depart from the ordinary rule. (at p71)
10. I consider, therefore, that the appeal should be allowed and the order appealed against varied (1) by substituting for the answer made to the first question the answer that the beneficiaries named in cl. 4 of the will are entitled to the leasehold property therein described and (2) by substituting for the order that the costs should be paid out of the leasehold an order that the costs should be paid out of the residuary estate of the testatrix. The costs of all parties to the appeal should also be paid out of the residuary estate. (at p71)
WINDEYER J. This is an appeal from a judgment of Chamberlain J. in the Supreme Court of South Australia in an originating summons. The case concerns the effect of the will of the late Hilda Clara May Jones, a widow who died on 25th November 1960. She had made a will on 20th February 1956. The question submitted by the trustee of the will for the determination of the Supreme Court concerned the effect, in the events which had happened, of cl. 4 of the will. The contest was between the brother and two sisters of the testator, the beneficiaries named in that clause, and the two daughters of the testatrix, the beneficiaries under the residuary clause. For some reason that does not appear the trustee, before the summons came on to be heard, applied for and obtained an order that the defendant C. A. H. Pohlner, the present appellant, be appointed to represent himself and his two sisters named in cl. 4, that is three persons in all; and the defendant Clair Julia Pfeiffer, the present respondent, to represent herself and her sister, two persons only. This order was presumably made under O. 15 r. 9 of the Supreme Court Rules. If that be so, it is at least doubtful whether it was authorized and its effect may be questionable: see Re Braybrook (1916) WN (E) 74; Templeton v Leviathan Pty Ltd [1921] HCA 55; (1921) 30 CLR 34, at pp 75-77; The Eighth Union Building Society v. Carnegie (1893) 19 VLR 388 However, the representative order having been made, the action proceeded as thus constituted. The appeal comes to us from the judgment. The effect of a decision on any person who was not served we do not have to consider. (at p72)
11. At the time she made her will the testatrix was a tenant in common in equal shares with her sister, Mrs. Stockman, in Oak Park, a property of 18,400 acres held as a perpetual leasehold from the Crown under the Crown Lands Act of South Australia. On this land she and her said sister were carrying on a grazing business as partners in equal shares. The property, with the livestock and plant then thereon, had come to them in 1948 by the will of their father, who died in that year. (at p72)
12. Had the testatrix died immediately after making her will, or at any time before 16th December 1959, the effect of her will would have been that her brother, who is the appellant, and her two sisters, Mrs. Gruneklee and Mrs. O'Leary, would (pursuant to cl. 4 of the will) have taken her interest in Oak Park as tenant in common with Mrs. Stockman, and also her interest in all the partnership assets (except produce held for sale): the two daughters of the testatrix would have taken all the rest of her estate, after payment thereout of debts, funeral and testamentary expenses and duties and some pecuniary legacies. (at p73)
13. The question in the case arises because on 16th December 1959 the partnership between the testatrix and Mrs. Stockman was dissolved. Oak Park was put up for sale by auction, and bought by the testatrix for 41,800 Pounds for the whole: that is to say, it cost her 20,900 Pounds to acquire her sister's share in the land. She also bought by private treaty, her sister's interest in the livestock and plant on the property for approximately 2,300 Pounds. The total amount she paid to become the owner of the land and the assets of the business was therefore about 23,200 Pounds. Having bought her sister's interest, the testatrix carried on the business, and at the date of her death she was the sole owner of Oak Park - the land, the plant and the livestock. But she had not altered her will. (at p73)
14. The words of cl. 4 of the will are of critical importance. And therefore, long though it is, I shall set it out in full. (at p73)
15. "I give the whole of my estate to my Trustee upon trust as to all my share and interest in the Leasehold property situate at Paratoo in the said State known as Oak Park and being Block 16 Counties of Herbert and Kimberley containing Eighteen thousand four hundred acres or thereabouts which said property is owned by me in common with my sister Stella Mary Marguerite Stockman and all my share and interest in the livestock working plant implements and machinery and in the farming and grazing stores stocks and provisions (not being produce of any kind grown or held for the purpose of sale) which shall be on such property as aforesaid at my decease and which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease:- (a) As to one half thereof for my brother Charles Alick Herman Pohlner - (b) As to the other one half thereof for such of them my sisters Agnes Nelly Elizabeth Pretoria Gruneklee and Clara Louisa Thelma O'Leary as shall survive me and if more than one in equal shares." (at p73)
16. It is clear that the result of these words, the partnership having been dissolved before the death of the testatrix, is that all the livestock, plant, machinery etc. on Oak Park at the time she died passed to her daughters under the residuary clause - not under cl. 4 to the brother and sisters of the testatrix. But as to the Oak Park lands there are three possible views of the effect of the will. The first is that a half share goes to the brother and sisters (Mrs. Gruneklee and Mrs. O'Leary) of the testatrix and the other half to her daughters, the residuary beneficiaries. The second is that the whole interest of the testatrix in the lands goes under cl. 4 to her brother and sisters. The third is that it, the whole interest, goes under the residuary clause to her daughters. (at p74)
17. The first is the construction which Chamberlain J. adopted. It accords with what it is tempting to assume was what the testatrix intended, namely that her brother and sisters should have the interest in Oak Park that she had inherited from her father, and that her own children should take the rest of her property. It may very well be true that when the testatrix bought out Mrs. Stockman's interest for 23,200 Pounds she did not mean thereby to affect the shares of her estate that would go by her will to her brother and sisters and to her own children. But, as indeed Chamberlain J. recognized, it is not legitimate to reach a conclusion as to the meaning of the will - and it is by this that the intention of the testatrix must be determined - on speculations of that sort. (at p74)
18. The construction that his Honour adopted involves disregarding the fact that the testatrix at the date of her death was no longer tenant in common with her sister: it involves reading the will as giving to her brother and sisters an interest in the Oak Park perpetual lease equivalent to that which she had at the date of the will. That interest had ceased to exist as a separate and identifiable proprietary right. Counsel pointed out that strictly it is not correct to speak of its disappearance as having occurred by merger or as an extinguishment - as to these see Challis on Real Property 3rd ed. (1911) pp. 87, 88. Properly speaking, what occurred was a dissolution of the tenancy in common, which, as Blackstone and others following him expressed it, occurs "by uniting all the titles and interests in one tenant, by purchase or otherwise: which brings the whole to one severalty". However it be expressed, the result is that two interests became one. If the perpetual lease were regarded as creating an estate of freehold or its equivalent, the result would be to make one freehold of two freeholds. I find difficulty, therefore, in the proposition that the will can be read as a disposition of an existing interest that was formerly an identifiable part of, but had become embodied in, the greater interest of the testatrix as sole tenant of the Oak Park lands; and no less difficulty in reading the will as creating anew a tenancy in common, by giving to the cl. 4 beneficiaries a share in Oak Park equivalent to that which the testatrix had had when the will was made. In In re Slater; Slater v. Slater (1907) 1 Ch 665 Cozens-Hardy M.R. said: "You have to ask yourself, Where is the thing which is given? If you cannot find it at the testator's death, it is no use trying to trace it unless you can trace it in this sense, that you find something which has been changed in name and form only, but which is substantially the same thing" (1907) 1 Ch, at p 672 (at p75)
19. Section 26 of the Wills Act, 1936-1940 (S.A.), which is in the same words as s. 23 of the Wills Act, 1837, does not assist. That section can have no operation unless the property which the testator has at the date of death can fairly be described as an estate or interest in whatever was the subject-matter of the gift: In re Bick; Edwards v. Bush (1920) 1 Ch 488, at p 490 And that is not so here. (at p75)
20. Despite the difficulties involved, the construction that Chamberlain J. adopted might nevertheless perhaps be sustainable if all that cl. 4 dealt with was a share and interest in the land, not followed by the disposition of the chattels on the land. If that had been so, support for his view might have been sought in In re Horton; Lloyd v. Hatchett (1920) 2 Ch 1 There the question concerned copyholds; but it was posed by Eve J. in just the same way as was the question in the present case: "The question", his Lordship said, "is whether the devise in the testator's will passed his interest in the copyholds at the date of his decease, at which time he was tenant of the entirety, or whether it was limited to his interest at the date of his will, at which time he was tenant of a moiety only" (1920) 2 Ch, at p 7 The answer given in that case was that upon the true construction of the will, and apart from any assistance afforded by the Wills Act, the devise operated to pass the entirety. But it is significant that no one, counsel or judge, suggested that if the devise were upon its true construction to be read as referring only to a subject-matter existing at the date of the will, namely an undivided moiety, the absorption of that moiety into the entirety would have prevented the will passing a moiety only. (at p75)
21. I have, however, come to the conclusion, for reasons that will appear, that in the present case cl. 4 of the will cannot, in the events that happened, have the effect that the learned judge considered it had. The choice therefore lies between - on the one hand, holding that the gift to the testatrix's brother and sisters of her interest in Oak Park fails altogether, because of the disappearance or total transformation of that interest before the date of her death, with the result that the residuary beneficiaries, her children, take the entirety of the land as well as the livestock and plant - and, on the other hand, holding that, by virtue of the Wills Act, an enlargement of the interest in the land given by the will occurred, with the result that the brother and sisters of the testatrix take the entirety of the land, and the residuary beneficiaries take the livestock and plant. Which of these contrasting results is correct depends upon the proper construction of the will and the effect of the Wills Act, 1936-1940 (S.A.). Section 27 of that Act is in the same terms as s. 24 of the Wills Act, 1837: "Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will". (at p76)
22. That provision seems simple enough. But the cases show that different approaches can be taken, and have been taken, in applying it. Before the Act came into operation - in England in January 1838 - a gift by a testator of his real and personal estate was read as a gift of the real estate belonging to him at the date of his will, and of the personal estate belonging to him at the date of his death: Hance v. Truwhitt [1862] EngR 270; (1862) 2 J & H 216 (70 ER 1036). A devise, as distinct from a bequest, could not have an ambulatory effect. Every devise, even if it were in general terms, was necessarily specific. That was because a devise operated as a conveyance. And, said Trevor C.J. in Arthur v. Bokenham (1761) 11 Mod Rep 148 (88 ER 957): "There is no case in all the law that by any legal conveyance at common law a man could convey lands that he had no right to, nor was in possession of at the time of such conveyance" (1761) 11 Mod Rep, at p 152 (88 ER, at p 959) ; and "the law requires the testator should have a complete power of disposing at the time of making the will; and that that power and interest he had at that time should continue and be the very same at the time of his death" (1761) 11 Mod Rep, at p 158 (88 ER, at p 961) (at p76)
23. Sections 24 and 23 of the Wills Act, 1837 (ss. 27 and 26 of the South Australian Act) were designed to alter these rules. Section 24 assimilated testamentary gifts of real and personal property, to the extent that the words of a will, if apt for the purpose, will carry any property, either real or personal, acquired by the testator after he made his will. It is therefore unnecessary to determine whether the perpetual leasehold of Oak Park should, for testamentary purposes, be classified as a chattel real, the subject of a bequest, or as realty, the subject of a devise. But s. 24 (the South Australian s. 27) is expressed to operate "unless a contrary intenttion shall appear by the will". And the numerous decisions and dicta on s. 24 of the Wills Act give rise to two questions: first, what is a sufficient expression of a contrary intention? secondly, whether the requirement that it must "appear by the will" means that it must appear on the face of the will, read as at the date of death and in relation simply to things then existing; or whether it may appear from the words of the will, read as at the date it was made and having regard to circumstances then existing and events occurring thereafter. (at p77)
24. The "contrary intention" is, of course, an intention contrary to the rule that the will shall speak and take effect as if executed immediately before death, so as to carry after-acquired property. It has been suggested, in some of the cases, that such a contrary intention can never appear if the description in the will of the subject-matter of a devise or bequest is, in its literal terms, capable of denoting a thing a testator had at death: see e.g. Castle v. Fox (1871) LR 11 Eq 542, at p 551; Watson v. Smith (1916) VLR 540 But the correct view is, I think, that whether or not a contrary intention appears depends upon the meaning of the will construed according to ordinary principles of construction, and in the light of any extrinsic evidence properly admissible of facts, known to the testator, that existed at the time he made his will. In his judgment in the recent case in this Court of McBride v. Hudson [1962] HCA 5; (1962) 107 CLR 604, the Chief Justice quoted (1962) 107 CLR, at p 615 a passage from the second edition of Jarman on Wills referring to the two possible approaches to s. 24: "namely, whether we are first to transfer the date of the will to the day of the death, and then see what property the words refer to; or whether, on the contrary, we are first to see what property the words refer to, (remembering that words of general description include in themselves after-acquired property), and then transfer the will to the date of the death. It is obvious that the first construction makes the words include not only a different interest in the same subject, but also a different subject answering the same description, while the latter makes the words include only a different interest in the same subject. The latter is conceived to be the true construction". (at p77)
25. Although there are indications in some of the cases that some judges have taken the other view, I accept as correct the construction which Jarman's editors approved. It accords with this Court's decision in McBride v. Hudson [1962] HCA 5; (1962) 107 CLR 604, and with the statement of Jenkins L.J. in In re Edwards; Macadam v. Wright (1958) Ch 168 that: "I further find it impossible to accept the proposition that, where it is material to ascertain whether a gift has been adeemed, s. 24 of the Wills Act precludes investigation of the circumstances obtaining at the date of the will containing the gift in question, or of any matters which have occurred between the date of the will and the date of the death of the testator or testatrix bearing on the question whether the gift has been adeemed or not. If that were so, I find it difficult to see how any case of ademption could ever be made out. The essence of ademption surely is that there should have been a gift by will of property belonging to the testator or testatrix at the date of the will, followed by some dealing inter vivos with the property inconsistent with the testamentary gift. I think that In re Gibson (1866) LR 2 Eq 669, makes it sufficiently plain that section 24 of the Wills Act has no such effect" (1958) Ch, at pp 177, 178 To quote again from the often-cited judgment of Joyce J. in In re Evans, Evans v. Powell(1909) 1 Ch 784, "The Court in construing a will must, in order to give effect to it, take into consideration the condition of things in reference to which it was made. . . . It is well settled that there may be a specific description of the subject of a gift as to show that what was intended to pass, whether real or personal estate, was some particular thing in existence at the date of the will. . . . and where there is such a particularity in the description of the subject of a gift as to show that it was some object in existence at the date of the will that was intended to pass, it is considered that there is sufficient evidence of a contrary intention to exclude the application of the provisions of s. 24" (1909) 1 Ch, at p 786 That necessarily invites attention to the circumstances existing when the will was made. As Page Wood V.C. put it in In re Gibson; Mathews v. Foulsham (1866) LR 2 Eq 669, the case to which Jenkins L.J. referred: "When there is a clearly indicated intention upon the face of the will to give the single specific thing, and nothing else, it would be a very narrow construction of the words of s. 24 to hold that you must sweep in everything to which the words might be held to apply, without the slightest reference to the state of things existing at the date of the will" (1866) LR 2 Eq, at p 672 (at p78)
In Brown v. Butcher (1922) 22 SR (NSW) 176; 39 WN 44, Harvey J. stated the effect of the decisions as follows: "The result of the cases on this section, which are very numerous, appears to me to be that the descirption of the property contained in the will must be construed as if the will was made at the death unless there is an express reference in the description of the property to the date of the will as opposed to the date of the death, or the description is so particularized or individualized as to show that a particular property in existence at the date of the will is intended . . . . This proposition is sometimes expressed as inviting the consideration whether the description is truly specific or whether it is generic, i.e., a description of a class of property capable of diminution or increase" (1922) 22 SR (NSW), at pp 183, 184; 39 WN, at p 47 I would add that a description may be generic, in the relevant sense, either because it denotes a class or form of property capable of increase or decrease, e.g. "all my household furniture", "my stamp collection" - or because it denotes in general terms an item of property of a kind that the testator commonly replaced periodically, e.g. "my motor car". A gift that is generic will carry anything that the testator had at his death which answers to the description. But, as I said in McBride v. Hudson [1962] HCA 5; (1962) 107 CLR 604 , I do not think that a description, whether general or specific, can carry a thing of a different sort, that is to say essentially different, from that which that description denoted when the will was made. A change in the connotation of a word may bring within its denotation things that previously it did not denote, but that does not mean they will pass by a gift made before the change of meaning occurred. (at p79)
27. The question in every case is whether, upon the true construction of the will, a thing in existence at death is the specific thing, or a thing of the genus that the words of the will described when they were written. The case of In re Sikes; Moxon v. Crossley (1927) 1 Ch 364 strikingly shows that a mere literal reading of the will as at the date of death may not suffice for determining whether a gift was specific or generic. The testatrix had a piano when she died. If her will were read simply as speaking from that date, and without knowing more than that she then had a piano, no doubt the one she had would have passed by the bequest of "my piano". But extraneous circumstances led Clauson J. to construe the bequest as confined to a particular thing, the piano that she had when she made the will, and no other. (at p79)
28. Returning to the precise words of the present will, and construing them in the light of the circumstances existing when it was made: they were then apt to describe the particular interest in Oak Park that the testatrix then had. Are they fairly capable of describing whatever interest she might thereafter acquire in the Oak Park lands? I think not. The words "all my share and interest" coupled with the reference to the property as "owned by me in common with my sister" seem to me to mean something less than the entire estate in severalty. "All my share and interest" could, no doubt, of itself be a generic term, carrying any share that should exist at the date of death, whether greater or less than that held at the date of the will, just as "all my rights" in a particular thing is a generic expression: cf. In re Bancroft; Bancroft v. Bancroft (1928) 1 Ch 577 But a share, to my mind, means something less than the whole: and it seems to me that in combination with the rest of the clause, in particular with the reference to the testatrix's ownership in common with her sister, it makes that reference something more than an inessential and superfluous part of the description of the physical property Oak Park. The words, read together, are, I think, definitive of the nature of the share and interest of which the testatrix was speaking, namely her interest as a tenant in common, not descriptive of the land in which she had that interest. That construction is, I consider, much reinforced by the words of the associated gift of the testatrix's interest in the livestock, plant etc. that should be on Oak Park at her death. Noscitur a sociis. When cl. 4 of the will is read as a connected whole, it shows clearly, I think, that the testatrix, in making the disposition embodied in it, contemplated that she and her sister would be owners in common of the land of Oak Park and of livestock and plant that from time to time should be on the property. The clause shows an obvious intention that the share and interest of the testatrix in land and chattels owned in common should go together at her death as a composite gift to the same persons, not that the land and chattels should go to different persons. In effect what the clause seems to have been designed to give was the testatrix's share in the assets of a partnership - in its fixed capital, the land where the partnership business was carried on; and in the associated personalty in the nature of wasting assets and circulating capital employed in the business, as distinct from detached profits in the form of "produce grown or held for sale", which was expressly excluded. The part of the clause relating to the share and interest of the testatrix in the livestock and other chattels is expressly stated to be in such of those things as should be on the property at the date of the death of the testatrix and then owned in common or being partnership assets. That is obviously because the actual chattels making up the assets of the partnership would necessarily vary from time to time. But that the personalty comprised in the share or interest was fluctuating and thus necessarily to be ascertained at death merely emphasizes that the share and interest given was given as a specific gift. Therefore the clause, as I read it, could have no operation if at the date of death the testatrix had no share or interest in land or chattels then held in common ownership, in law or in equity, with her sister. A specific thing was given which was in existence at the date of the will. At the date of death it had ceased to exist. There was thus an ademption of the gift. That is the position as I see it. (at p81)
29. The ademption occurs in a somewhat unusual way. The testatrix did not dispose of, and thus take out of her will, her share in the partnership property. She bought her sister's share. But the result is that she thereby destroyed what her will gave, a share as a tenant in common. Therefore I consider that Oak Park, and all the livestock and other chattels there, passed by the residuary clause, and not to the appellant and his sisters. Counsel for the residuary beneficiaries said that if that were held to be the correct view he would ask no more than that the appeal be dismissed. There is no cross-appeal. In the circumstances the appeal should, I consider, be dismissed. But this does not mean that the answer that was given in the Court below to the question asked in the summons was correct. In my opinion it was not. (at p81)
30. The appellant's counsel referred us to a number of cases. All that they really do is, I think, to show that provisions, different from that which we have to construe, occurring in other wills have been interpreted as carrying after-acquired interests. These interpretations have sometimes been said to depend upon the effect of the Wills Act, and necessarily so in cases of devises of real property. Reading the cases inclines me to echo respectfully what Lord Greene M.R. said in In re Whitby; Public Trustee v. Whitby (1944) Ch 210: "We have been referred to a number of cases. Speaking for myself, so far from obtaining any assistance from them, I find them calculated to confuse. In them are to be found paraphrases, in some cases, in my judgment, inaccurate, of the language of the section. In other cases, we find language of quite a different character from that which we have to consider here construed in such a way as to exclude a 'contrary intention' within the meaning of the section. So be it. Those cases cannot afford any assistance in this case where we have to construe the language of this particular codicil" (1944) Ch, at p 214 (at p81)
31. The cases cited to us are all distinguishable on their facts from the present case. And so far as they tell at all in this case, they really, it seems to me, tell against the appellant. No good purpose would be served by discussing them all. But some that were earnestly relied on in the thorough argument for the appellant I shall mention. Great weight was put on the decision of Bacon V.C. in In re Russell; Russell v. Chell (1882) 19 ChD 432 There the question was whether, on the words of the will read as a whole, a devise and bequest of "all my part, share and interest of and in the said co-partnership trade or business, and of and in the real and personal estate which may be used, employed, or invested therein . . ." carried only the one-third share as a partner that the testator had when he made his will; or whether, he having bought out the other partners, the whole interest in the business and the assets used therein passed. There was no residuary clause, so that the contest was between those interested under the will on the one side and those interested on a partial intestacy, the heir at law and next of kin, on the other. The Vice-Chancellor said: "the opinion that the testator died interstate so as to deprive his wife of any interest, is in my opinion, not tenable for a moment" (1982) 19 ChD, at p 439: and "It is clear that it would disappoint the intention of the testator" (1882) 19 ChD, at p 441 : and "I cannot doubt that by deciding as I do I am carrying into effect the intention expressed by the testator" (1882) 19 ChD, at p 443 He referred to the provision of the Wills Act, saying that "the acquisition of a larger interest does not affect in the slightest degree the disposition which the testator made of all the interest he had in the house, chattels, and other property in the co-partnership business, although the partnership had ceased to exist, and he had become the sole owner of the property" (1882) 19 ChD, at p 442 As the learned Vice-Chancellor construed that will, it thus passed the assets of a business: it did not contemplate that they would necessarily be held in partnership at the date of death. the differences between that case and the present are very great. First, the competition here is not between an effective gift and an intestacy. The whole of the property which this testatrix had is unquestionably comprised in this will. The only question is to whom it goes, that is to say which clause carries it, the specific or the residuary disposition. That is an aspect of importance: see In re Portal and Lamb (1885) 30 ChD 50, at p 55 Secondly, it cannot be said here that a failure to construe the will as the appellant proposes would disappoint the intentions of the testatrix. The contrary may well be correct. Thirdly, cl. 4 cannot be construed as a gift of all the assets embarked in the business, whether or not a partnership be subsisting at the date of death, because in respect of the personalty, plant and livestock, it expressly requires that there be then such a partnership. The construction that the Vice-Chancellor put upon the will that he had to consider may have been influenced by his desire to avoid an intestacy and his conviction that the testator intended that his widow should take a life estate in the whole. But, whether that be so or not, I do not think that the case at all supports the appellant here. (at p83)
Saxton v. Saxton (1879) 13 ChD 359 was cited, mainly, as I understood the argument, because there the testator's bequest to his wife of all his term and interest in a leasehold dwelling-house was held by Malins V.C. to carry the subsequently purchased freehold reversion upon the ninety-four years' term. The Wills Act was referred to, but on the basis that the will was to be construed as if it read "my house for all the interest I have in it". The Vice-Chancellor said: "The subject-matter of the devise is the house - the place in which he resided, and where he was desirous that his wife should continue to reside" (1879) 13 ChD, at p 362 "There is nothing more clear", he said, "than that this testator intended to give the house as a provision for his wife, and he intended by the words he used to give any interest he might have in that house" (1879) 13 ChD, at p 364 . That case seems far removed from this. It is one of several cases in which, mainly because of the effect of s. 23, not s. 24, of the Wills Act, it was held that a gift of a property held on lease did not fail because the testator had acquired the reversion. In cases of that sort the subject-matter of the gift was taken to be the physical property, for whatever estate or interest the testator should have in it at his death. Subsequent dealings by him did not affect this. But, as I read the present will, the subject-matter of the gift was not Oak Park, but the share the testarix had in Oak Park as a tenant in common. Miles v. Miles (1866) LR 1 Eq 462 is another example of a case in which the reference to a leasehold title of a property given did not prevent the gift operating when the reversion had been acquired. Lord Romilly said "it is evident from the face of the will that the testator intended the description to apply to the messuage itself". Similar considerations apply in cases where a particular property was described in the will, e.g. as "Blackacre", and after the date of the will it was enlarged, not in interest by a change in title from leasehold to freehold, but in physical extent by the acquisition and addition of further lands: see In re Willis; Spencer v. Willis (1911) 2 Ch 563 (at p83)
33. The decisions as a whole really do no more than reiterate the rule that "prima facie after-acquired property passes by a will unless you can find evidence of a contrary intention in the will itself". That was said in In re Ord; Dickinson v. Dickinson (1879) 12 ChD 22, at p 25, where a gift, in its terms clearly generic and carrying all property of the kind mentioned, was held to be not confined by the mere use of the word "now" to property held at the date of the will. In re Horton (1920) 2 Ch 1 was a similar case. I do not think it necessary to go further into the cases. The general principles were recently considered by this Court in McBride v. Hudson [1962] HCA 5; (1962) 107 CLR 604 especially in the judgment of the Chief Justice. I shall therefore merely quote again from the judgment of Rigby L.J. in In re Nottage; Jones v. Palmer(No. 2) (1895) 2 Ch 657 : "You have got a long way towards a specific gift if you come to the conclusion that he (the testator) is trying to describe something which he has" (1895) 2 Ch, at p 664 . That, I think, is what this testatrix, or whoever drew the will for her, was trying to do and I think succeeded, despite not very skilled draftsmanship, in doing. (at p84)
34. The other question is, How should the costs of the proceedings in the Supreme Court be borne? Chamberlain J. thought they should fall upon the Oak Park land, its destination being the substantial matter in controversy, rather than upon the residue. I think that, for the reasons he gave, it was within his discretion to make the order that he did. But other members of this Court think that the costs, being testamentary expenses, should come out of the residuary estate, and I do not dissent from that view. (at p84)
35. In the circumstances the proper order for this Court to make is, I consider, simply to dismiss the appeal except in respect of the order made as to costs. (at p84)
ORDER
Order of Supreme Court varied by striking out the order that costs should be paid out of the leasehold therein referred to and substituting therefor the order that costs of all parties should be paid out of the residuary estate. Save as aforesaid appeal dismissed. No order as to the costs of the appeal.
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