McClymont v Hooper [1973] HCA 2; (1973) 128 CLR 147 (1 March 1973)

HIGH COURT OF AUSTRALIA

McCLYMONT v. HOOPER. [1973] HCA 2; (1973) 128 CLR 147

Will

High Court of Australia.
Barwick C.J.(1), McTiernan(2) and Menzies(3) JJ.

CATCHWORDS

Will - Construction - Intention of textatrix - Trust of residuary estate until beneficiary attains twenty-one - Whether absolute gift of residue.

HEARING

Melbourne, 1973, February 2; March 1. 1:3:1973
APPEAL from the Supreme Court of Victoria.

DECISION

March 1.
The following written judgments were delivered:-
BARWICK C.J. The testatrix made her last will on 13th July 1946 when she

"This is the Last Will and Testament of me JESSIE MAY
HOOPER of Culgoa in the State of Victoria Widow After payment
of my just debts funeral and testamentary expenses including
State Probate and Federal Estate Duties I GIVE DEVISE AND
BEQUEATH all the property both REAL and PERSONAL over
which I have any disposing power to my Trustee hereinafter
appointed UPON TRUST To stand possessed of my residuary
estate upon trust for my nephew PETER EDWARD HOOPER until
he attains the age of twenty-one years I EMPOWER my said
Trustee to sell call in and convert any part or parts of my
real or personal estate as he may deem advisable so to do and
to invest any of the proceeds therefrom in any securities
authorised by the laws of the Commonwealth of Australia or
any of its States or Territories for the investment of trust funds
or in Fixed deposits in any Bank in Australia To carry on my
business of a General Merchant or any other business in which
I may be engaged at the time of my death or to lease the same
for such terms and upon such conditions as he may deem
advisable To apply from time to time towards the maintenance
education advancement or benefit of my said nephew such
part of the income from my residuary estate as my Trustee
may deem reasonable, I APPOINT ERNEST CHARLES CROSSLEY
of Wycheproof in the said State Managing Clerk and Accountant
Sole Executor and Trustee of this my Will IN WITNESS
WHEREOF I have hereunto set my hand this 13th day of
July 1946."

Her nephew at that time was seven years of age. At the date of the death of the testatrix, on 23rd November 1970, he had long attained his majority. We have no information as to who were her relations at that time or what was her association (if any) with them; or even whether she knew who or where they were. (at p150)

2. On an originating summons the Supreme Court of Victoria (Gillard J.) answered in the affirmative the question:

"1. Upon the proper construction of the will of the deceased
and in the events that have happened, after payment of her
just debts, funeral, testamentary and administrative expenses
including State probate duty and Federal estate duty -
(a) is the plaintiff beneficially entitled to the estate of the
deceased?" (at p150)

3. The Supreme Court founded its answer upon its reading of the words of the will, concluding that the words "until he attains the age of twenty-one years" condition the power to convert, invest, etc. and not the disposition of the residuary estate upon trust for the nephew. (at p151)

4. Upon this appeal we have heard argument both upon this question of the proper reading of the will and upon the question of construction whether, if, contrary to the decision of the Supreme Court, the gift was expressed to be upon trust for the nephew until he attains the age of twenty-one years, there was none the less an absolute gift to the nephew of the corpus of the residuary estate. (at p151)

5. The first question turns, in my opinion, very much on impression. The will is unpunctuated. Its use of capitals is not uniform in any significant respect. Whilst it might be thought strange to qualify by reference to minority a power of conversion and of carrying on a business etc., such a qualified power is by no means nonsensical or without some practicality. If the will be read as a gift by the testatrix of her residuary estate to the nephew absolutely, there was good reason to limit the power of conversion, investment and advancement to the period of his minority. Such a power might well be though a suitable means of protecting the estate during the minority of the intended donee and to provide a fund for advancement to him according to the trustee's discretion. In any case, the power to convert and invest, in my opinion, was unrelated to the payment of debts and duties, such payment being covered by statutory provisions. It was a substantial power for the management of the estate. (at p151)

6. On appeal I am unconvinced that the Supreme Court was wrong in the view it took of the proper reading of the typescript of the will. The inclination of my mind is that the Supreme Court was right. If the typescript resulted from dictation without express direction as to punctuation, a pause between saying the name of the nephew and saying the word "until" as the opening word of a new sentence could result in the transcription as it now appears. Failure to use care in checking the typescript might well result in the execution of that transcription. Here, bearing in mind the description of the attesting witnesses, evidently the testatrix took the will away from the place where it was typed. Perhaps she received it from the typist without any check having been made by the person who dictated it. I do not think that it should be held that the reading of the typescript followed by the Supreme Court was wrong. (at p151)

7. But however that may be, the answer given by the Supreme Court to the first question in the originating summons is, in my opinion, supportable on the ground that, even if the Supreme Court's reading of the typescript is not accepted, upon its proper construction the will constitutes a gift of the corpus of the residuary estate to the nephew absolutely at least upon his attaining the age of twenty-one years. Having regard to the facts, no more need be decided to dispose of the case. (at p152)

8. I have already mentioned the age of the testatrix at the date of the execution of the will. Her gift was of residue which is generally indicative of an intention not to die intestate. There was no other gift. A trustee was appointed and there was a discretionary power of advancement. (at p152)

9. It was conceded by counsel for the appellant that no relevant distinction is to be found between this case and the case of Betts v. Conolly [1970] HCA 18; (1970) 120 CLR 417 . I have reconsidered my own judgment in that case and have come to the same conclusion as expressed in that case. In my opinion, the judgments of Hood J. in In the Will of Vickers (1912) VLR 385 , of Fullagar J. in Re Patterson (1948) VLR 427 and of Smith J. in In re O'Mullane (deceased) (1955) VLR 217 are to be preferred to that of Upjohn J. in In re Arnould: Arnould v. Lloyd (1955) 1 WLR 539 . (at p152)

10. I respectfully share with Hood J. a lack of conviction by the judgment of Hall V.C. in In re Hedley's Trusts (1877) 25 WR 529 . Having considered the decisions of the earlier Vice-Chancellors, too much has been made, in my opinion, of Lord Hardwicke's remark in Fonnereau v. Fonnereau [1745] EngR 8; (1869) 3 Atk 315 (26 ER 983) . In my opinion, these cases, as well as principle support the view that a testator expressing a gift to a trustee to be upon trust for a minor until majority may thereby intend a gift of the corpus at least on the attainment of majority: slight indications in the testament are sufficient to warrant the conclusion that there was an actual intent to make a gift of the corpus, particularly if the will purports to deal with the whole of the testator's property and if otherwise an intestacy as to the whole estate would result. (at p152)

11. This view is in line with Fullagar J.'s summation in Re Patterson in which he says (1948) VLR 427, at p 432 :

"It is to be noted that (apart from cases where, as in
Cropton v. Davies (1869) LR 4 CP 159 , there is a gift over, which is,

of course,

practically conclusive) in all the cases in which the donee is
held to take absolutely, the gift is a gift in trust for him until
the condition is fulfilled. There is, so far as I have found, no
instance of the implication being made where the gift is simply
a gift of corpus to A until he attain a specified age. Where
the implication is made, the basis, and the only satisfactory
basis, for it seems to be the view that, where there is a direction
to hold on trust for A until a specified event, and there is
nothing more, the purpose of the trust is seen to be the holding
of the property until it is seen whether the event occurs, and
an intention is inferred that, if and when the event occurs,
the trust is to cease and the ownership is to be absolute." (at p153)

12. It is important, in my opinion, in the consideration of such a problem as this will presents to distinguish between construction of the words of the will accepted as the expression of the whole will of the testator and the insertion in a will of words convincingly shown to have been inadvertently omitted from the will. In Betts v. Conolly [1970] HCA 18; (1970) 120 CLR 417 an occasion was presented for consideration of both these matters. (at p153)

13. The distinction between the two exercises is apt to be blurred, in my opinion, by the use of the words "imply" or "implication" in respect of each. To speak of implying a gift of the corpus of the residuary estate in this case is to say that the words actually used by the testatrix mean that she intended such a gift. Nothing is added to the language of the will: but, to use traditional language, it is said that the gift of the corpus is "implied" in the words actually used by the testatrix. It is in that sense that an "implication" is made. Actually, the process is one of explication, of unfolding the meaning of the words. (at p153)

14. But, if convinced to the necessary degree that identifiable words have been inadvertently omitted from the text of the will, the Court may supply them by adding them to the text before construction. This exercise is often referred to as "implying" the words, though perhaps it might be better said to be one of "supplying" the omitted words. The use of "imply" and "implication", however, is well entrenched in the reported decisions and in the text books in respect of both these matters, at times, I think, without observance of the essential distinction between the two processes. (at p153)

15. Here, however, we have only a question of construction of the words of the will taken to be the whole expression of the testatrix's testamentary intention. I have already noted the relevant surrounding facts and circumstances. The case, to my mind, is a clear example of the creation of a trust during minority as a mode of giving the corpus. I can entertain no doubt that to decide otherwise would be to defeat the intention of the testatrix. Although perhaps not directly in point, the quotations made by Dixon C.J. in Currie v. Glen [1936] HCA 1; (1936) 54 CLR 445, at p 458 ought to be in mind. As a means of emphasizing the importance of doing so, I take the liberty of repeating them along with his Honour's introduction to them:

"But if indications of the intention which the testator
sought to express appear in the will and they are convincing,
effect must be given to them, notwithstanding that a gift or
even a series of limitations must be implied.
'I am not to be deterred by any accidental omission from
putting the true signification on the will, and I am not to substitute
what some blundering attorney's clerk or law stationer
has written in this will, and treat that blunder as if it was the
intention of the testator' (per Bacon V.C., In re Redfern;
Redfern v. Bryning (1877) 6 Ch D 133, at p 138 ).
'If the will shows that the testator must necessarily have
intended an interest to be given which there are no words in
the will expressly to devise, the Court is to supply the defect
by implication, and thus to mould the language of the testator,
so as to carry into effect, as far as possible, the intention which
it is of opinion that the testator has on the whole will sufficiently
declared' (per Lord Kingsdown, Towns v. Wentworth [1858] EngR 371; (1858) 11 Moo PCC 526,

at p 543 [1858] EngR 371; (14 ER 794, at p 800) )." (at p154)

16. To confine the meaning of the words of this will to their strictly literal significance is really to conclude that the testatrix intended an intestacy. But such a conclusion is, in my opinion, unacceptable, quite apart from the general disinclination to favour intestacy where a will has solemnly been made. It is evident that she was intending to deal exhaustively with her whole estate. (at p154)

17. In my opinion, the proper construction of the words of the will is that a gift to her nephew of the corpus of her residuary estate was intended by the testatrix and sufficiently expressed in the circumstances of the case by the words of the will. I would dismiss the appeal. (at p154)

McTIERNAN J. The appellants are the persons who are entitled to share in the distribution of the residuary estate of the testatrix, if there is an intestacy as to it. The respondent is the only beneficiary whom the testatrix mentioned in her will. The dispositive part of the will is a devise and bequest of all of the testatrix's residuary estate. The respondent is a son of a brother of the testatrix's husband. When the will was executed the respondent was seven years of age. He attained the age of twenty-one years before the testatrix died. (at p154)

2. It is argued for the appellants that under the terms of the will, the respondent ceased to be entitled to any interest in the testatrix's estate after he attained the age of twenty-one years, and consequently there is an intestacy as to her residuary estate. The question raised by the argument turns essentially upon the following provisions of the will:

"After payment of my just debts funeral and testamentary
expenses including State Probate and Federal Estate Duties
I GIVE DEVISE AND BEQUEATH all the property both REAL and
PERSONAL over which I have any disposing power to my Trustee
hereinafter appointed UPON TRUST To stand possessed of my
residuary estate upon trust for my nephew PETER EDWARD
HOOPER until he attains the age of twenty-one years..." (at p155)

3. These words, in my opinion, imply that the testatrix intended to devise and bequeath her residuary estate to her trustee upon trust for her nephew, Peter Edward Hooper, and upon trust to stand possessed of such residuary estate for him until he attains the age of twenty-one years. I do not think that the import of the words is that the testatrix intended to devise and bequeath her residuary estate to her trustee for her nephew Peter Edward Hooper until he attains the age of twenty-one years. I think that such an intention cannot fairly be deduced from the wording of the will. For these reasons I hold that there is not an intestacy as to the testatrix's residuary estate. The conclusion of Gillard J. is right. I would dismiss the appeal. (at p155)

MENZIES J. Jessie May Hooper, deceased, left a will as follows:
"This is the Last Will and Testament of me JESSIE MAY
HOOPER of Culgoa in the State of Victoria Widow After
payment of my just debts funeral and testamentary expenses
including State Probate and Federal Estate Duties I GIVE
DEVISE AND BEQUEATH all the property both REAL and
PERSONAL over which I have any disposing power to my Trustee
hereinafter appointed UPON TRUST To stand possessed of my
residuary estate upon trust for my nephew PETER EDWARD
HOOPER until he attains the age of twenty-one years I EMPOWER
my said Trustee to sell call in and convert any part or parts
of my real or personal estate as he may deem advisable so to
do and to invest any of the proceeds therefrom in any securities
authorised by the laws of the Commonwealth of Australia or
any of its States or Territories for the investment of trust funds
or in Fixed deposits in any Bank in Australia To carry on my
business of a General Merchant or any other business in which
I may be engaged at the time of my death or to lease the same
for such terms and upon such conditions as he may deem
advisable To apply from time to time towards the maintenance
education advancement or benefit of my said nephew such
part of the income from my residuary estate as my Trustee
may deem reasonable, I APPOINT ERNEST CHARLES CROSSLEY
of Wycheproof in the said State Managing Clerk Accountant
Sole Executor and Trustee of this my Will IN WITNESS
WHEREOF I have hereunto set my hand this 13th day of
July 1946."

(at p156)

2. The will was made when she was about forty-six years of age and her nephew, Peter Hooper, was then seven years of age. (at p156)

3. Gillard J. construed the will as making an absolute gift to Peter Hooper because his Honour attached the words "until he attains the age of twenty-one years" to the following words "I empower" rather than to the preceding words "To stand possessed...upon trust". This construction I do not accept. Not only do the words attach more readily to the earlier words as a matter of simple draughtsmanship and reading, but it would, I think, be unusual to the point of being out of place to find powers such as are conferred upon the trustee limited to the coming of age of a beneficiary when the estate might have to be administered after he had become of age - as is the case here - or even after his death. For instance, I regard the power to sell and convert as one still operative in the events which have happened. (at p156)

4. Upon the other question which arises - that is, whether the gift to Hooper until he attains the age of twenty-one years is, in the circumstances, a gift of the residuary estate upon his attaining the age of twenty-one - there are two conflicting lines of authority. In favour of such a construction, there are the decisions of Hood J. in In the Will of Vickers (1912) VLR 385 ; of Fullagar J. in Re Patterson (1948) VLR 427 ; of Smith J. in In re O'Mullane (deceased) (1955) VLR 217 ; and of Barwick C.J. in Betts v. Conolly [1970] HCA 18; (1970) 120 CLR 417 . Against that construction, there are the decisions of Hall V.C. in In re Hedley's Trusts (1877) 25 WR 529 ; of Upjohn J. in In re Arnould; Arnould v. Lloyd (1955) 1 WLR 539 ; and of Walsh J. in Betts v. Conolly [1970] HCA 18; (1970) 120 CLR 417 . (at p156)

5. After some hesitation, I have reached the conclusion that here "...the spirit is strong enough to overcome the letter..." per Knight Bruce L.J. in Key v. Key (1853) 4 De GM & G 73, at p 84 (43 ER 435, at p 439) , so that the will should be regarded as an effective disposition of the residuary estate of the testatrix. The circumstances do satisfy me that the contrary construction would disappoint the intention of the testatrix and it is upon this ground that I decide the appeal. (at p157)

6. I would, therefore, dismiss the appeal. (at p157)

ORDER

Appeal dismissed with costs.