Adams v Perpetual Trustee Co (Ltd) - [1964] HCA 31

HIGH COURT OF AUSTRALIA

Kitto, Taylor, Menzies, Windeyer and Owen JJ.

ADAMS v. PERPETUAL TRUSTEE CO. (LTD.)

(1964) 114 CLR 527

15 May 1964

Will—Construction—Gift over—Death of life tenant "without issue"—Issue predeceasing life tenant.

Decisions

May 15.
The following written judgments were delivered: -
KITTO J. These appeals, from a decretal order made by Jacobs J. in the Supreme Court of New South Wales, raise a question of construction upon the will of one William Joseph Adams deceased. The will is a document of some length and no little complication, and it is modified by a codicil. The instruments were executed in December 1920 and February 1921 respectively, and the testator died in May 1921. He was survived by a son and three daughters. (at p530)

2. The will contains a devise of a specific parcel of land upon trust for the son for life and after his death for his child if only one or his children if more than one in equal shares, and a separate specific devise and bequest in trust for each daughter. There followed provisions affecting in several respects the simplicity of the scheme, and then there came a declaration subjecting the shares or share (original or accruing) of each daughter to a trust as to the income for the daughter and after the decease of the daughter as to the principal and future income for the daughter's child if only one or children if more than one in equal shares. That I may call the initial trust. It was followed immediately by a provision, which I shall call the gift over, in these terms: "But in case of the death of any daughter of mine without issue then as to the principal and future income to hold such daughter's share in trust for my other children in equal shares and the child or children of any children of mine who shall then be deceased". The codicil, after revoking a provision made by the will as to the residuary estate, devised and bequeathed the residue upon trust for the testator's four children, subject to certain provisions which need not be mentioned. In proceedings which reached this Court in 1924 it was declared that the provision in the will for the settlement of the daughters' shares applied both to the lands specifically devised to the daughters and to their interests in residue. (at p530)

3. The question which came before Jacobs J. and is now before us arises with respect to the operation of the settlement provisions upon both the share in residue of one of the daughters, Ranee Mary, and the land specifically devised to that daughter. Ranee Mary died in 1959 having had a child, Ranee Anne, and the question arises because that child predeceased her at the age of three years and no other child was born to her. The question is whether, upon Ranee Mary's death, the corpus passed to Ranee Anne's estate under the initial trust or went elsewhere under the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1964] HCA 31
Decision Date: 15 May 1964

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Adams against Perpetual Trustee Co (Ltd) concerning the interpretation of a will. The dispute centred on whether certain beneficiaries were entitled to a share of the residue of the testator's estate.

The primary legal issue before the Court was whether the testator's intention, as expressed in the will, was to create a single class of beneficiaries to share the residue, or whether the residue was to be divided into distinct portions, with each portion to be shared by a specified group of beneficiaries. This involved determining the proper construction of the relevant testamentary provisions and the application of established principles of will interpretation.

The Court analysed the language of the will, paying close attention to the wording used to describe the beneficiaries and the division of the residue. It applied the principle that the court must endeavour to give effect to the testator's intention as revealed by the will as a whole, resorting to rules of construction only where the language is ambiguous. The Court found that the testator had intended to create a single class of beneficiaries for the residue, and that the division was to be per capita amongst them.

The appeal was dismissed, with the High Court affirming the decision of the primary judge.

Orders