Altson v Equity Trustees, Executors and Agency Co Limited

The case of *Altson v Equity Trustees, Executors and Agency Co Limited* concerned the interpretation of a testator's will. The plaintiff, Equity Trustees, Executors and Agency Co Ltd, as trustees of the will of Alexander Brunton, sought determination from the Supreme Court of Victoria regarding the entitlement to the testator's real estate following the death of his daughter, Elizabeth Davies, and whether a power of sale had arisen. Elizabeth Davies, the testator's sole beneficiary during her lifetime, died without having had any children. The appellant, Barnett Hyman Altson, was the beneficiary under Elizabeth Davies' will, while the respondent, J. W. Stranger, represented the estates of the testator's deceased brothers and sister.

The primary legal issues before the High Court were: firstly, who was entitled to the testator's real estate in the events that had occurred, specifically after the death of Elizabeth Davies; and secondly, whether the trustees possessed a power of sale under the will, and if so, whether that power had arisen. The testator's will, drafted in 1840, was described by the Chief Justice as "very inaccurately drawn," creating ambiguity regarding the disposition of his estate.

The High Court, affirming the decision of Hood J. of the Supreme Court of Victoria, reasoned that the testator intended to dispose of his entire estate and provide for two alternative contingencies: either his daughter leaving children who met specific conditions, or her not leaving such children. The Court concluded that the phrase "stand possessed of" was used consistently throughout the will to refer to the testator's real and personal estate. In the event that had occurred – the daughter dying without children – the gift over to the testator's brothers and sister was operative. Furthermore, the Court held that a power of sale was implied by the direction to distribute the estate, and this power had arisen.

Consequently, the appeal was dismissed. The costs of all parties were ordered to be paid out of the estate on a solicitor and client basis.