Bruyn v Perpetual Trustee Co Ltd

HIGH COURT OF AUSTRALIA

Menzies, Stephen and Jacobs JJ. (THE RIGHT HONOURABLE MR. JUSTICE MENZIES died before judgment was delivered in this case.)

BRUYN v. PERPETUAL TRUSTEE CO. LTD.

(1974) 131 CLR 387

18 December 1974

Will

Will—Construction—Gift to the children of A and B.

Decision

Dec. 18.
The following written judgment was delivered:-
STEPHEN AND JACOBS JJ. Sir Douglas Menzies fully participated in the preparation of this judgment and agreed in its conclusions although his death has unfortunately prevented him from taking part in its delivery. (at p389)

2. These are two appeals from certain declarations made in the Supreme Court of New South Wales by Street C.J. in Eq. in an originating summons for the construction of the will and codicil of Eva Clara Mitchell, deceased ("the testatrix"). (at p389)

3. By her will dated 2nd August 1933 the testatrix bequeathed the residue of her estate to her husband for life and directed that after his death the residue ". . . be divided in equal shares among the survivors of the following named nieces and nephews: Three Children of Mrs. Perry, Percy and William Sommerville, Florence Rooke, Walter John Rooke, Joan Hirschberg, W. Bruyn, Maud Beatrice Bruyn, Eva Bruyn, and Dorothy Bruyn". (at p389)

4. On 21st May 1948 the testatrix executed a codicil to her will that provided, inter alia, "I wish to include the children of George Rooke and Ernest Bruyn in the disposition of my residue referred to in the will". At the date of the codicil George Rooke and Ernest Bruyn, both nephews of the testatrix, were living. They each had children living at that date. The testatrix died on 27th September 1969. Ernest Bruyn had predeceased her in 1968. (at p390)

5. The question arising on the first appeal is whether the phrase "The children of George Rooke and Ernest Bruyn" refers to the children of both nephews or to the children of George Rooke and to the individual Ernest Bruyn, Street C.J. in Eq. decided in favour of the latter construction and held that the children of Ernest Bruyn were not entitled to share in the residuary estate. From that decision the three children of Ernest Bruyn now appeal. (at p390)

6. The learned Chief Judge in Equity, although recognizing that he was not bound by certain modern English cases, did regard what was said in three such cases as establishing a presently settled practice in England that a gift to be equally divided between the children of A and B is, prima facie, a gift in equal shares to the individual B and the children of A. His Honour as a judge of first instance gave effect to what he regarded as a somewhat arbitrary but nevertheless well established rule having regard, of course, to the advantage of certainty in the law. This is despite the fact that his ". . . first impression, uninstructed by reference to authority, was to regard the gift in the codicil as extending to…