Allen v Crane - [1953] HCA 69

89 CLR 152

ALLEN AND OTHERS

DEFENDANTS,

CRANE AND OTHERS

RESPONDENTS.

PLAINTIFFS AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT WillConstruction" Male issue "-Prima-facie legal import-Intention of

testator Issue male "___" Issue ".

A testator directed his trustees to hold the residue of his estate upon trust SYDNEY,

for his son during his life, and after his death to hold " the same Aug. 28;

trust for his " (the son's) " male issue living to attain the age of twenty-one MELBOURNE,

years and if more than one in equal shares ". The testator provided for a gift over on default.

Held, that the words "male issue meant males tracing their descent through males.

Decision of the Supreme Court of New South Wales (McLelland J.): Orane V. Allen (1952) 69 W.N. (N.S.W.) 381, reversed.

APPEAL from the Supreme Court of New South Wales.

Daniel Allen (hereinafter called " the testator") died on 25th January 1925, having made his last will on 10th April 1923, and a codicil thereto dated 16th February 1924. He had been married twice, there being six children of the first marriage and nine of the second. Eleven of the children were daughters, five of whom survived the testator's son, Patrick James Allen. Patrick James Allen died on 19th March 1952, having married once, and leaving surviving him his widow and one daughter, Valerie Patricia Allen. Valerie Patricia Allen married Hugh John Carrigan, and, at the time of the hearing, had one child, John Hugh Carrigan, born on 10th February 1950.

By his will, the testator, after making provisions not relevant to this report, directed his trustees ' to hold all the rest and residue

89 CLR 153

of my estate upon trust for my son Patrick James Allen to permit him to have all the rents and profits therefrom during his life and after his death the same shall be held upon trust for his male issue living to attain the age of twenty-one years and if more than one in equal shares. In the event of his death without leaving male issue or male issue surviving him and living to attain the age of twenty-one years then the same shall be held upon trust to divide the same in equal shares between such of my daughters and the widow of my said son as may then be living in equal shares ".

The codicil to the will did not affect this disposition. On 28th May 1952, after the death of Patrick James Allen, the trustees instituted a suit by originating summons in the equitable jurisdiction of the Supreme Court of New South Wales for the determination of the following questions -Whether upon the true construction of the will and codicil of the (testator) and in the events which have happened-1 The residuary estate of the (testator) is held upon trust for the defendant John Hugh Carrigan upon his attaining the age of twenty-one years. (2) The said residuary estate is held upon trust to…

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.

Continue reading Allen v Crane

Details

AGLC: Allen v Crane [1953] HCA 69
Case: [1953] HCA 69
Decision Date: 15 October 1953

CaseChat Overview and Summary

The dispute in this case concerned the interpretation of the phrase "male issue" within a testator's will, specifically regarding the distribution of his residuary estate. The testator had directed his trustees to hold the residue for his son, Patrick James Allen, during his life, and thereafter for his "male issue living to attain the age of twenty-one years". Upon the death of Patrick James Allen, he was survived by a daughter, who in turn had a son, John Hugh Carrigan. The Supreme Court of New South Wales, per McLelland J., held that "male issue" simply meant "issue who are male", and therefore John Hugh Carrigan qualified. The first five named defendants, who were daughters of the testator, appealed this decision to the High Court of Australia.

The central legal issue before the High Court was whether the phrase "male issue" in the will referred to any descendant who was male, or whether it specifically meant descendants who traced their lineage exclusively through males. The appellants argued for the latter interpretation, contending that the testator intended to keep the property within the male line of descent. The respondent, John Hugh Carrigan, argued that "male issue" simply meant descendants who were male, regardless of the line of descent.

The High Court, in allowing the appeal, reasoned that expressions such as "male issue", "issue male", and "male descendants" carry a prima facie legal import that connotes descendants tracing their lineage through males. The Court found that this interpretation was consistent with common understanding and likely reflected the testator's intention to maintain a male line of succession. While acknowledging that context could displace this meaning, the Court found no such indication in the will. Therefore, the Court concluded that John Hugh Carrigan, who traced his descent through his mother, did not qualify as "male issue" under the will's intended meaning.

Consequently, the High Court varied the order of the Supreme Court. It discharged the declaration that the residuary estate was held in trust for John Hugh Carrigan upon attaining twenty-one years. Instead, the Court declared that the residuary estate was to be held in trust for division between the testator's daughters (other than John Hugh Carrigan's mother, who was a granddaughter, not a daughter). The costs of the appeal were to be taxed as between solicitor and client and paid out of the estate.

Orders