Betts v Conolly

[1970] HCA 18

HIGH COURT OF AUSTRALIA

Barwick C.J., Owen and Walsh JJ.

BETTS v. CONOLLY

(1970) 120 CLR 417

26 June 1970

Wills

Wills—Construction—Trust to hold residue for infants until they attain twenty-one—Whether absolute or limited interest.

Decisions

1970, June 26.
The following written judgments were delivered:-
BARWICK C.J. A testatrix by her will, which bears the marks of having been prepared by a solicitor for her signature, after giving a small pecuniary legacy, gave, devised and bequeathed-

" . . . the rest and residue of my estate both real and personal and of whatsoever kind and wheresoever situate and of or to which I may be seised possessed or entitled at the date of my death unto my Trustees UPON TRUST that my Trustees shall sell call in collect and convert into money the said real and personal property at such time or times and in such manner as they shall think fit with power to postpone the sale calling in or conversion of the whole or any part or parts of the said property during such period as they shall think proper and to retain the same or any part thereof in its present form of investment without being responsible for loss AND my Trustees shall out of the moneys to arise from the sale calling in and conversion of or forming part of my said real and personal property pay my funeral and testamentary expenses (including all probate estate and other duties payable in respect of my estate or in consequence of my death) and my debts and the legacies given by this my Will or any codicil thereto AND shall stand possessed of the residue of the said moneys and the investments for the time being representing the same and of such part of my estate as shall for the time being remain unsold and unconverted (all of which premises are hereinafter referred to as 'the residuary trust funds') IN TRUST for ANN MARSDEN BETTS and GEOFFREY MARSDEN BETTS until they shall attain the age of twenty one years and if more than one in equal shares AND I DECLARE that my Trustees may in their absolute discretion use such part of the principal or income of the expectant share of any infant beneficiary during his or her minority in or towards the benefit education or advancement in life of such infant beneficiary." (at p420)

2. The testatrix was a childless widow. Ann Marsden Betts and Geoffrey Marsden Betts were respectively her niece and nephew, children of a brother-in-law. She had a sister who survived her as well as a number of other nieces and nephews, consisting of a child of a deceased brother, children of another deceased brother and children of a deceased sister. She also had a grandniece, the grandchild of a deceased sister. These nieces and nephews including the grandniece numbered in all ten. The net value of the residuary estate was $21,677.00. (at p420)

3. By a decretal order, the Supreme Court of New South Wales declared that the appellants, Ann Marsden Betts and Geoffrey Marsden Betts were each entitled to a one-half share in the rents profits and income of the said residuary real and personal estate until each respectively attains the age of twenty-one years and that the testatrix otherwise died intestate as to the whole of her residuary estate. (at p420)

4. The respondents submit in this appeal, as they had done before the Supreme Court, that the gift of the residuary estate upon trust for them "until they should attain the age of twenty-one years" was in the circumstances a gift to them of the corpus of the "residuary trust funds" and not merely a gift of the income thereof which would accrue during their minority. In support of this submission reference was made to, amongst other things, the judgment of Fullagar J. when a justice of the Supreme Court of Victoria in In re Patterson (1948) VLR 427 ; In the Will of Vickers (1912) VLR 385 ; In re O'Mullane (1955) VLR 217 ; Re Hedley's Trusts (1877) 25 WR 529 ; Theobald on Wills, 12th ed. (1963), par. 1870 and Jarman on Wills, 8th ed. (1951), p. 682. (at p420)

5. The learned judge of the Supreme Court who made the decretal order appears to have been of the opinion that some words intended to form part of the will have been omitted by some inadvertence in typing the document admitted to probate. He concluded that he could not determine from the terms of the document itself with the requisite certainty what words had been omitted. In this connexion his Honour relied upon and followed the decision of this Court in Butlin v. Butlin (1966) 113 CLR 353 . Consequently, he held that there was an intestacy as to the residuary estate, except as to its income during the minority of the appellants. (at p420)

6. I desire to say at the outset that if the proper conclusion from the terms of the document admitted to probate is that clearly an omission of substantive words has occurred, the gap in the dispositions thus disclosed could not, in my opinion, be filled by the Court. Nothing in those terms could supply with certainty any indication of what was the gift which the testatrix intended but omitted to express in her will. Indeed, as I mention again later, I could not so much as offer a speculation as to what was the nature of intended gift or gifts which were omitted, if any were omitted. (at p421)

7. In that respect, the construction of this will to my mind raises no problem of any difficulty. What in my opinion are the problems, each of which I have found difficult of resolution, is whether or not there has in fact been any omission in the transcription of the document and if there has not, is there upon the true construction of the will a gift of the corpus of the residuary fund or only a gift of its income accruing during minority. Of course, unless convinced that there was an intended but unexpressed gift, the question of what it was does not arise. (at p421)

8. It seems apparent that this is a professionally drawn will - professionally in the sense that a person with professional training has drawn it. Its clauses have the dust of the precedent books upon them. It refers to the payment of legacies though but one was given by the will: nor could any omitted provision have been a gift or gifts by way of legacy. (at p421)

9. The suggestion that something has been omitted from the document admitted to probate is founded upon the presence of the words "if more than one in equal shares" immediately following the gift to the named beneficiaries and both the presence and the terms of the power of advancement given to the trustees of the residuary fund. Because of the presence of the word "any" in the expression "any infant beneficiaries" and the limitation of the power to an expectant share, it is said that the power of advancement is inappropriate to the case of the gift to the named beneficiaries and only appropriate to some other gift or gifts not to be found in the document which has been proved. (at p421)

10. Before a Court can decide that the whole of the will is not to be found in the document admitted to probate, the Court must be satisfied to a high degree of certainty that there has been a failure on the part of the testator or testatrix to include some provision in the document which was intended to be expressed therein. This certainty is of the same order as the certainty required as to the precise nature of the omitted provision: see Re Whitrick (deceased); Sutcliffe v. Sutcliffe (1957) 1 WLR 884, at pp 887-889; (1957) 2 All ER 467, at pp 468 et seq , per Jenkins L.J., where the relevant authorities are collected. (at p422)

11. The gift to the named beneficiaries is "until they shall attain the age of twenty-one years and if more than one in equal shares". It is not in express terms a gift of the income of the fund: but places the fund in trust for those beneficiaries until majority. In my opinion, the words "if more than one in equal shares" are not without significance in relation to the express gift of the "residuary trust funds". For in my opinion, it is necessary in any case to decide whether the gift, whether it be of corpus or income, is absolute or contingent on the beneficiary attaining majority. Whilst a gift until majority to one beneficiary might well be construed as an absolute gift terminating with majority, the addition of the words "and if more than one in equal shares" may indicate, even if the gift be confined to a gift of income, that the gift is contingent on attaining majority. So using the words, it could be concluded that if only one of the two named beneficiaries attained majority, he or she as the case may be would take the whole of what was the subject matter of the gift; whereas, on the other hand, if both attained majority, each would take one half. After all, the gift is expressed to be to both until they shall attain majority. If the construction of the express gift which I have outlined were adopted, the limitation of the power of advancement to an expectant share is not inappropriate to the terms of the document proved as the will of the testatrix. On that construction, the share of each of the named beneficiaries is an expectant share. Further, the reference to any beneficiary would not be inappropriate for it would enable an advancement to either or both of the named beneficiaries for in the suggested construction each has an expectant share. (at p422)

12. It is plain enough that the draftsman of the will kept his precedent book near at hand. If the construction of the document which I have so far indicated as possible were not acceptable, the question is whether this draftsman has merely included from his precedents some inappropriate words or whether some gift which would necessarily have had to be expressed in a considerable number of words has been omitted in transcription and their absence has escaped the revising gaze of the solicitor. (at p422)

13. In making the choice between these two possibilities, it must be borne in mind that, whatever the terms of the omitted gift, the power of advancement must remain in the will in its present terms. That seems to me to involve the conclusion that not only were there intended gifts to which the expression "if more than one in equal shares" was appropriate but that the generality of the reference to any beneficiary was referable only to the omitted gift or gifts and not in any event to the named beneficiaries or either of them. In connexion with that choice, it must also be observed that the words I have quoted are not so placed in the pages of the document as to lend support to a theory that a substantial, or for that matter, any, number of words were left out at the end of one, or the beginning of the next, page of the document. (at p423)

14. As I have already said, I just cannot imagine with any degree of satisfaction the terms of the suggested omitted gift. Faced with a choice between an omission of a provision of considerable length and the inclusion of perhaps irrelevant and inappropriate words, I cannot feel convinced that there was in truth an omission of an intended gift or gifts. The balance of my view, subject to the question of construction, which I have mentioned, is in favour of the inclusion of a possible unnecessary and inappropriate phrase. The avoidance of an intestacy has itself a tendency which weighs strongly against the conclusion of an omission from the will. (at p423)

15. However, in my opinion, the construction of the words which I have suggested and the effect they may have both upon the nature of the express gift to the named beneficiaries and upon the applicability of the power of advancement, ought to be adopted. It follows that the submission that those words and the terms of the power of advancement are only applicable to some omitted but intended gift or gifts ought not to be accepted. Consequently there is on this view, no certain ground, in my opinion, for the conclusion that there has been such an omission. The document as it is should be taken as the whole will of the testatrix. (at p423)

16. On the footing that nothing has been omitted from the will we have in express terms a gift intended to be of money or principally of money being the whole of the residuary estate of the testatrix in trust for a niece and nephew in law of the testatrix until they shall attain the age of twenty-one years and a power of advancement both as to corpus and income of the expectant share of any infant beneficiary. (at p423)

17. The gift of a fund or estate upon trust for minors "until they shall attain the age of twenty-one years" seems to be a not unknown condensation by an unwary draftsman of a gift of corpus, but on trust during minority. Fullagar J. in In re Patterson (1948) VLR 427 collected and commented upon the principal cases in which what in terms was a gift only during minority has been held to have been intended to be an absolute gift of the corpus on attaining majority. I agree, as Smith J. indicated in In re O'Mullane (1955) VLR, at p 221 , that Fullagar J. approved the decision of Hood J. in In the Will of Vickers (1912) VLR 385 . I think it is correct, as Smith J. says in In re O'Mullane (1955) VLR, at p 221 , that some support is necessary from context or circumstance for the view that a gift of the fund, as distinct from its income, was intended before such a gift should be implied in an express gift on trust during minority. The question whether a gift of the corpus was intended is a question of construction, though, if it is to be implied from the language used in the will, the Court should feel certain that the implication represents the intention of the testator. But in that connexion the passage from the judgment of Knight Bruce L.J. in Key v. Key (1853) 4 De GM &G 73, at p 84 (43 ER 435, at p 439) to which Fullagar J. refers in In re Patterson (1948) VLR 427 might be borne in mind. The passage which has been quoted before is as follows:

"In common with all men I must acknowledge that there are many cases upon the construction of documents in which the spirit is strong enough to overcome the letter; cases in which it is impossible for a reasonable being, upon a careful perusal of an instrument, not to be satisfied from its contents that a literal, a strict, or an ordinary interpretation given to particular passages, would disappoint and defeat the intention with which the instrument, read as a whole, persuades and convinces him that it was framed. A man so convinced is authorized and bound to construe the writing accordingly."

That passage is apposite, in my opinion, when deciding whether there is an implied gift. (at p424)

18. Here the niece and nephew of the deceased husband of the testatrix have been singled out and named by her at a time when obviously she intended to deal with the whole of her residuary estate. Upon the words of the will it is clear enough that she was not contemplating an intestacy as to any part of her estate. We do not know the source of the property which constituted her estate. Had it been made clear that the property derived from the deceased's husband, the choice of his relations to be beneficiaries might have provided a circumstance to be weighed along with whatever else appeared relevant to the question of the probable intention of the testatrix. However, there is no evidence of any such circumstance. But there is the power of advancement. I have already indicated the construction which I think should be adopted of this power. It seems to me that the gift in trust until maturity accompanied by a power of advancement as to principal and income referable to the gift to the donees makes it not difficult to conclude that a gift of the corpus was intended. (at p425)

19. A passage in Theobald was pressed on us as a view long held by text writers. It is as follows:

"1870. (ii) Gift till twenty-one. A simple gift to trustees in trust for A till he attains twenty-one will not give A the absolute interest. Thus a gift to four named persons until they attain twenty-five is a gift of income only until they attain that age. The capital then falls into residue or passes on intestacy, as the case may require. But very slight indications of intention have been held sufficient to give the absolute interest, though possibly some of the earlier decisions may be difficult to support. In some cases the court has found a direct gift to the legatee, with a superadded direction that it was to be in trust till he should come of age. In others an absolute interest has been implied from a direction that the trust is to cease at twenty-one, or from a reference to the trustees as trustees for the legatees. Or, again, an absolute interest has been given because the trustees are directed to apply not only the interest but the produce till the legatees attain twenty-one."

See also Jarman on Wills, 8th ed. (1951), p. 682. In Halsbury's Laws of England (3rd ed.), vol. 39, par. 1714, it is said:

"A gift to trustees for a person until he attains a certain age without any gift over does not always give that person the absolute interest: but it may do so if there are other indications that such is the intention and that the trust is only to point out the mode of taking."

This passage has remained unaltered since the first edition of Halsbury and distinguished lawyers have participated in the preparation of both the second and third editions of this section of the work. (at p425)

20. I have reached the conclusion aided by the decisions I have quoted that if the words admitted to probate constitute the whole will of the deceased, as in my opinion they do, there is a sufficient indication in the presence of the power of advancement and the fact that the testatrix in dealing with her residuary estate made no other gift - that a gift of the corpus of her "residuary trust funds" to the named beneficiaries should be implied. (at p425)

21. In my opinion, therefore, it should be held that a gift to the two named beneficiaries of the corpus of the residuary funds was intended and that the will should be so construed. I would allow the appeal. (at p426)

OWEN J. This is an appeal from a decretal order made by Myers J. in the Supreme Court of New South Wales in a suit instituted by originating summons brought to determine questions arising under the will of one Elsie Eileen Janet Betts (the testatrix) made on 25th August 1960. (at p426)

2. The testatrix, who was a widow at the time of her death on 8th February 1968, had no issue of her marriage. She was survived by a sister and a brother and a number of nieces and nephews who, as next of kin, are joined as respondents in the proceedings. The appellants, namely Ann Marsden Betts and Geoffrey Marsden Betts, are the children of her deceased husband's brother and at the date of the death of the testatrix they had attained the age of twenty-one years. By her will the testatrix, after naming two persons as the executors and trustees of her will and giving a small legacy to one William Arnold Conolly, gave the residue of her estate to her trustees upon trust to convert and pay her debts, funeral and testamentary expenses and to-

" . . . stand possessed of the residue of the said moneys and the investments for the time being representing the same and of such part of my estate as shall for the time being remain unsold and unconverted (all of which premises are hereinafter referred to as 'the residuary trust funds') IN TRUST for ANN MARSDEN BETTS and GEOFFREY MARSDEN BETTS until they shall attain the age of twenty one years and if more than one in equal shares AND I DECLARE that my Trustees may in their absolute discretion use such part of the principal or income of the expectant share of any infant beneficiary during his or her minority in or towards the benefit education or advancement in life of such infant beneficiary."

There followed the signatures of the testatrix and of two witnesses. The questions asked in the originating summons arise under that part of the will which I have quoted. They were:

"(1) WHETHER upon the true construction of the Will of the abovenamed Testatrix the said Elsie Eileen Janet Betts deceased the Defendants Ann Marsden Betts and Geoffrey Marsden Betts are absolutely entitled to the residuary real and personal estate of the said Testatrix?

(2) IF Question (1) be answered No, whether the said Defendants Ann Marsden Betts and Geoffrey Marsden Betts are each entitled to one-half share in the rents profits and income of the said residuary real and personal estate until each respectively attains the age of twenty one years?

(3) WHETHER the Testatrix has died intestate as to any portion of her said residuary real and personal estate and if so what portion?"

Myers J. answered these questions as follows:

(1) No. (2) Yes. (3) The testatrix died intestate as to the whole of her residuary estate excepting the respective interests given to the first two named defendants until they attain the age of twenty-one years.

The first two named defendants are Ann Marsden Betts and Geoffrey Marsden Betts. (at p427)

3. To adapt the words of Fullagar J. in In re Patterson (1948) VLR 427, at p 431 , the question is whether the testatrix by implication gave an absolute gift of the residue of the estate to the two named beneficiaries as and when he or she attained the age of twenty-one years. But it is impossible to make any such implication if it is clear, as I think it is in the present case, that by some mischance there has been omitted from the will some further provision intended to deal with the disposition of the residuary estate and it cannot be determined from the will what were the terms of that omitted provision: In re Smith; Veasey v. Smith (1948) 1 Ch 49 ; Butlin v. Butlin (1966) 113 CLR 353 ; Re Whitrick (deceased); Sutcliffe v. Sutcliffe (1957) 1 WLR 884; (1957) 2 All ER 467 . I base the conclusion that there has been an omission from the will upon these considerations. In the first place and notwithstanding the words in brackets, "all of which premises are hereinafter referred to as 'the residuary trust funds'", the will nowhere later refers to "the residuary trust funds" and it seems to me somewhat strange that a will apparently drawn by a solicitor should contain no express provision dealing with the disposition of the residuary estate after Ann Marsden Betts and Geoffrey Marsden Betts attained the age of twenty-one years or with its disposition should neither of them reach that age. Further, the provision expressly made for those two beneficiaries "until" they attain the age of twenty-one years goes on to say "and if more than one in equal shares", and the provision for advancement refers to "the expectant share of any infant beneficiary". Those phrases seem to me to be very inapt if the intention was that the appellants should become absolutely entitled to the residuary estate upon coming of age. In these circumstances I adopt, with respect, the words of Jenkins L.J. in Re Whitrick (deceased); Sutcliffe v. Sutcliffe (1957) 1 WLR, at p 887; (1957) 2 All ER, at p 469:

"The reading of words into a will as a matter of necessary implication is a measure which any court of construction should apply with the greatest caution. Many wills contain slips and omissions and fail to provide for contingencies which, to anyone reading the will, might appear contingencies for which any testator would obviously wish to provide. The court cannot re-write the testamentary provisions in wills which come before it for construction. This type of treatment of an imperfect will is only legitimate where the court can collect from the four corners of the document that something has been omitted and, further, collect with sufficient precision the nature of the omission."

In the present case I cannot make the necessary implication for which the appellants contend and I agree with the conclusion to which Myers J. came. (at p428)

4. I would therefore dismiss the appeal. (at p428)

WALSH J. This is an appeal against declarations made by the Supreme Court of New South Wales (Myers J.) in an originating summons for the determination of questions concerning the will of Elsie Eileen Janet Betts deceased. The will appointed two persons as executors and trustees. A small legacy was given to a named legatee. All the rest and residue of the estate was devised and bequeathed to the trustees upon trust for sale and conversion with power to postpone the sale or conversion and power to retain any part of the property in its present form of investment. There was a direction to pay funeral and testamentary expenses and debts and legacies. The provisions which then follow have been set out in the judgment of Owen J., which states also the questions asked by the originating summons and the answers given to them in the Supreme Court. (at p428)

2. The question for decision is whether or not the will should be read as making a gift of the whole of the residue to the appellants Ann Marsden Betts and Geoffrey Marsden Betts upon their attaining the age of twenty-one years. Myers J. considered that the question was to be determined by reference to the principles applied in Butlin v. Butlin (1966) 113 CLR 353 and in other similar cases. According to those authorities an affirmative answer to the question could be given only if two conditions were satisfied, namely that the Court should feel convinced that an intended gift had been omitted from the will and also that it should feel convinced that the intention was to make that gift to those beneficiaries. (at p429)

3. In Jarman on Wills, 7th ed. (1930), vol. 1, p. 556, the following statement appeared:

"Where it is clear on the face of a will that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words which he has omitted, those words may be supplied in order to effectuate the intention, as collected from the context."

That passage was cited by Vaisey J. in In re Smith ; Veasey v. Smith (1948) Ch 49, at p 53 . The reasons of Vaisey J. in that case and the statement of the principle quoted from Jarman on Wills were approved subsequently in Re Follett (deceased) ; Barclays Bank Ltd. v. Dovell (1955) 1 WLR 429 and in Re Whitrick (deceased) ; Sutcliffe v. Sutcliffe (1957) 1 WLR 884 . Those two cases provide interesting illustrations of the application of the principle to particular cases and of differences of judicial opinion as to the result of its application. In the case of Butlin v. Butlin (1966) 113 CLR 353 the principle was accepted but again different views were taken on the question whether or not the required conditions were fulfilled. (at p429)

4. In the present case Myers J. thought it probable that the testatrix intended to dispose of the whole of the corpus of the estate and that such a disposition had been inadvertently omitted from the will. But he said that even if it did appear with certainty that she had intended to dispose of her whole estate, he did not think it was a necessary implication that she intended to dispose of it absolutely in favour of the two beneficiaries named in the will. (at p429)

5. It has been submitted, however, on behalf of the appellants, that in a case where there is a trust of property in favour of named persons until they attain the age of twenty-one years, there is authority for the application of a rule of construction by which there is implied an absolute gift of the corpus to the named persons, taking effect when they attain that age. It was submitted that such a gift by implication should be held to have been made, if the context of the will indicates that it was so intended, where there is a trust of income for named persons until the attainment of a specified age and there is a failure to make expressly any provision or a complete provision for the destination of the corpus. (at p429)

6. One of the cases upon which the appellants relied was in In re Patterson (1948) VLR 427 . In the judgment of Fullagar J. in that case many earlier cases were reviewed. These were discussed again in Re Arnould (deceased) ; Arnould v. Lloyd (1955) 1 WLR 539 ; (1955) 2 All ER 316 by Upjohn J., who referred also to criticisms to which the earlier authorities had been subjected and cited a passage from Jarman on Wills, 8th ed. (1951), vol. 2, pp. 682-683, in which some of the earlier cases are said to be of doubtful authority. I do not consider it necessary to review all the authorities again. Decisions in other cases are not of assistance in resolving the problem in this case, except to the extent that they enunciate a principle of construction which can be applied to it. It is suggested by the argument for the appellants that a rule has been established that in construing a will by which property has been left to trustees in trust for named persons until they attain a specified age or until some other specified event occurs and no other disposition of that property has been made, there should be implied an absolute gift of that property to those persons upon the attainment of that age or the occurrence of the specified event. In so stating the rule I have left out of account cases in which there is a gift over of the property which does not take effect in the events which happen but indicates sufficiently the intention to dispose of the property in those events in favour of the named persons. It is not suggested by the argument that the rule will not yield to contrary indications in the context of the will. But as I understand the proposition advanced on behalf of the appellants, it is that in those circumstances such a gift is prima facie to be implied. (at p430)

7. The question arises whether or not any special rule has been established for the construction of wills containing a gift of that type. In In re Patterson (1948) VLR 427 Fullagar J. made a statement which if taken alone might appear to indicate an opinion that a special rule is applicable where there is a direction to trustees to hold in trust for A until a specified event and there is nothing more. His Honour said (1948) VLR, 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. As Lord Thurlow said in Atkinson v. Paice (1781) 1 Bro CC 91, at p 92 (28 ER 1005, at p 1006), 'the trust given till then is only to point out the mode'. Hood J. seems to express the same idea in more homely, and perhaps clearer, language when he says in In the Will of Vickers (1912) VLR 385, at p. 387. , that if the testator 'had said "to hold my horse for him until he can ride it," no one would doubt that it would become his when he could satisfy the trustee that he was able to ride it'. This view is, I think, the real basis of the typical case."

But his Honour said that that class of case "is really a species and not a genus" (1948) VLR, at p 433 . He said that cases comprised in it are merely examples of the application of a broad principle of which an illustration is to be found in the case of In re Smith ; Veasey v. Smith (1948) Ch 49 . He said that the view he had taken of the case before him was supported by the judgment of Vaisey J. in that case and by the authorities to which he referred. These observations of Fullagar J. appear to suggest a view that the same degree of certainty or satisfaction is required in order to justify the Court in implying in cases of this type an absolute gift as would be required in cases where it appears clearly that there has been an actual omission through mistake or inadvertence of a clause or words which were meant to be inserted in the will. (at p431)

8. Nevertheless I think that the judgment of Fullagar J. does provide support for the making of a distinction upon which the argument for the appellants relies, namely, a distinction between a case where it is suggested that there has been an actual omission of intended words, e.g. by reason of a typist's mistake in copying a draft, and a case where it appears that the will is complete in form, but it is suggested that a gift not explicitly made by it should be held to have been made by necessary implication. In a practical sense the distinction may appear to be an elusive one. In the latter case it is supposed that there has been an intention to make a gift of an absolute interest in the property but this intention has not been stated in express terms by the language used in the will. This means that the will has been so drawn that it fails to contain an explicit statement in it of the intended gift. It is, perhaps, not easy to see why the Court should regard itself as being able more readily in such a case to make explicit by a process of construction a disposition which is not found in the actual language of the will, than it is to decide that words should be supplied to give effect to a disposition which it finds to have been intended but to have been omitted. (at p432)

9. Notwithstanding those considerations, I think it is correct to say that the Court may sometimes be warranted in finding by implication that a disposition has been made of a greater interest than that which the actual words of disposition upon a literal construction of them would give. If the Court concludes that upon the proper construction of all the language used in the will there are sufficient indications of an intention that the donees should take that greater interest, it may give effect to that conclusion and it may do so although the indications, upon which its inclusion is based, are not so strong as to produce that degree of certainty which Vaisey J. described as "a compelling conviction" (1948) Ch, at p 53 . Therefore, it is in my opinion proper to consider the present case upon the assumption that there has not been an omission from the will of words which were intended to be inserted in it and to proceed to an examination of the principles which should be applied in deciding whether or not an absolute gift of the estate to the appellants should be implied. (at p432)

10. In Fitzhenry v. Bonner (1853) 2 Drewry 38 (61 ER 631), Kindersley VC said:

"No doubt there are many cases where the Court will, in the absence of express gift, raise a gift by implication ; but it will not do so unless the implication is necessary, irresistible ; that is, where, looking at the language, at all the dispositions of the will and the circumstances, there is an irresistible inference in favour of implying a gift" (1853) 2 Drewry, at p 40 (61 ER, at p 633).

I think that the adjective "irresistible" used by Kindersley V.C. would impose too stringent a requirement. But the expression "necessary implication" has commonly been used in relation to implied gifts. It has constantly been stated that great caution is to be used in deciding that such gifts have been made. Cases of the particular type with which we are here concerned are to be regarded, in my opinion, as cases to which that principle is applicable. (at p432)

11. If a will contains a gift to trustees of property to be held in trust for A until he attains the age of twenty-one years and there is nothing more to assist in construing it, there is not, in my opinion, an established special rule of construction that there is to be implied a gift to him of the property if and when he attains that age. In cases in which such a gift has been implied there has commonly been some particular circumstance which was regarded as pointing to that conclusion. This appears from an examination of the earlier cases to which Fullagar J. referred in In re Patterson (1948) VLR 427 An illustration is found also in the later case, in the Supreme Court of Victoria, of In re O'Mullane (deceased) (1955) VLR 217 , in which Smith J. relied upon a provision which appeared elsewhere in the will in concluding that there was a clear intention to make an absolute gift. His Honour expressed the view (1955) VLR, at p 221 that what Fullagar J. said in In re Patterson (1948) VLR 427 indicated that he considered "that some support from the context or circumstances was necessary to justify the implication of an absolute gift in cases of this kind". In my opinion this is a correct view. It appears to me to be in harmony with the general principles stated in Currie v. Glen (1935) 54 CLR 445, at pp 458-459 as to giving effect to gifts by implication and as to what is meant by necessary implication. It accords also with the opinion stated by Upjohn J. in Re Arnould (deceased); Arnould v. Lloyd (1955) 1 WLR, at p 544; , in relation to a case of the kind now under consideration. His Lordship said:

"In that state of the authorities, I think it is my duty to apply the ordinary rule of construction, and that is that I must not insert or read into the will words which are not there unless the context requires me to do so." (at p433)

12. It will rarely happen that, in the words of Fullagar J. in the passage quoted above, "there is nothing more". Usually there will be found indications for or against a conclusion that a gift should be implied. But in the absence of any such indications in my opinion it would not be possible to make the implication. (at p433)

13. In re Hedley's Trusts (1877) 25 WR 529, at p 530 Hall V.C. said:

"In point of language it shocks one to think that when a trust is created for a particular time without any gift over after, or anything else to aid it, you are to say the meaning is that the trust is to extend for that particular time and after that time. It seems to me shocking to put such a construction as that upon the words."

Such emphatic language as that does not seem necessary, but I think it is right to say that the implication is not to be made in the absence of "anything else to aid it". It can be made only if there are some other sufficient indications of that intention in the will. (at p433)

14. I am unable to treat an express trust for A for a limited period as meaning that the property itself is to go to A and that "the trust given till then is only to point out the mode", as was stated in Atkinson v. Paice (1781) 1 Bro CC 91, at p 92 (28 ER 1005, at p 1006) . An express trust limited to a specified period is a beneficial disposition in favour of the beneficiary. He become entitled to income earned by the property or fund during that period which, although it may not be actually paid to him, may be used (subject to any express directions in the will) for his benefit and, if not so used, may be accumulated and held in trust to be paid to him when he attains the age of twenty-one years. See Trustee Act, 1925 (N.S.W.), s. 43. I obtain no assistance from considering Hood J.'s reference, in In the Will of Vickers (1912) VLR 385, at p 387 , to a direction to a trustee "to hold my horse for him until he can ride it". Under such a direction no benefit at all would accrue to the person named during the period specified. (at p434)

15. Returning to a consideration of the terms of the will in the present case I think there are indications that some intended disposition was actually omitted from the will. One is that after it directs the sale and conversion of real and personal property into money and gives power to postpone conversion and to retain property or any part of it in its present form of investment and directs the payment of debts etc., the will states that the residue of the moneys and the investments are "hereinafter" referred to as "the residuary trust funds". But the expression thus defined is not afterwards used. Another indication is that the power of advancement refers to the expected share of any infant beneficiary. This language would be more appropriate if the will had contained a disposition by which shares in the residue were given to a number (greater than two) of infant beneficiaries. (at p434)

16. If the will is to be construed on the basis that there has been an actual inadvertent omission of an intended disposition the question is whether or not it is sufficiently clear that this was a disposition by which the residue was to be given to the appellants and to no others. In my opinion, in agreement with the view of Myers J., it is not possible to have the required degree of satisfaction or conviction that this was so. The relationship between the appellants and the testatrix was not such that of itself it would raise a strong presumption of an intention to give the whole of the residue to them and to no others. There were others who were not less closely related to her. There is no clear indication that the testatrix could not be reasonably supposed to have had other beneficiaries in mind. (at p435)

17. In my opinion the terms of the will suggest the probability that there was an omission from it of some intended disposition of the corpus of the residuary trust funds. It seems difficult to suppose that it contains all that it was intended to contain. The inclusion of the final declaration and its language are difficult to accommodate to a supposition that the will was complete in its terms and that that declaration was intended to operate upon a gift of principal as well as of income, already supposed to have been made to the named persons. (at p435)

18. If, however, the will is considered as one which contains all the terms it was meant to contain, I am not satisfied that an implication of an absolute gift can be derived simply from the circumstance that the property was given in trust for the two named persons until they should attain the age of twenty-one years. As I have said earlier I think that something more than that is required. (at p435)

19. The words "and if more than one in equal shares" follow a trust which is expressed to continue until the named persons shall attain the age of twenty-one years. They are not very apt words whatever construction of the will should be adopted. But I think that these words do not justify a conclusion that by implication there was an additional gift to the beneficiaries when they reach that age, although no doubt if there were other sufficient indications of that intention, those words could then be applied to determine the shares to be taken by them if both attained that age. But they are not devoid of meaning as applied to the limited trust with which, as a matter of language, they are associated. Their effect in relation to that trust may be taken to be that from the death of the testatrix until the end of the specified period, if both the donees are living, they are entitled to the income and to the benefit of accumulations of income in equal shares, but if at any time during that period only one of them is living, there is a trust of the whole of the income for that one until he or she reaches the specified age. (at p435)

20. The final declaration in the will is not easy to understand, except on the assumption that some intended disposition was omitted. The reference to "such part of the principal or income of the expectant share" may suggest that it was supposed that some share or shares would go to some infant beneficiary or beneficiaries upon attainment of the age of twenty-one years. The gift to the named persons until they shall attain the age of twenty-one years would entitle them to receive their shares of any accumulations of income and to that extent it could be said that each had an expectancy in a share of the accumulations. Although the word "principal" is no doubt more apt to refer to a share in corpus than to a share in accumulations of income, the reference in the will is to the expectant share of "any infant beneficiary", so that the declaration is not expressed in language which shows clearly that the named persons, and they alone, are the persons to whose shares it must relate. After much consideration I am not satisfied that the inclusion of the declaration in the terms in which it is expressed is sufficient to warrant the implication of a gift of the corpus to the named beneficiaries upon their attaining twenty-one years of age. Apart from that declaration, I do not find any other sufficient indications of intention to justify that implication. As Upjohn J. said, in the passage I have already cited from his judgment in Re Arnould (deceased); Arnould v. Lloyd (1955) 1 WLR, at p 544; (1955) 2 All ER, at p 319 : "I must not insert or read into the will words which are not there unless the context requires me to do so." I am unable to find in the context a sufficient basis for the implication of a gift of the corpus to the appellants. (at p436)

21. In my opinion the appeal should be dismissed. (at p436)

Orders

Appeal dismissed. Costs of all parties to the appeal to be paid out of the estate, those of the trustee as between solicitor and client.