Buick v Equity Trustees Executors & Agency Co Ltd - [1957] HCA 65

EQUITY TRUSTEES EXECUTORS AND

RESPONDENTS.

AGENCY CO. LTD. AND OTHERS

PLAINTIFFS AND DEFENDANTS, Will-Construction-Meaning of " issue - Whether "children" or " lineal

descendants -Gift to class-Whether rule of convenience applicable to close class and prevent gift from being bad for remoteness.

Dispositions of residue contained in a will were as follows :- I give devise and bequeath all my real estate and the residue of my personal estate to my Trustees upon trust to pay a one-third of the net income arising therefrom to my wife during her life and the balance of the remaining two-thirds of the net income to be divided between my children in equal shares and on the death of my said wife the income shall be paid to my children in equal shares and on the death of any of my children the portion of my real and personal estate to which such deceased child was entitled shall be divided between the issue of such child per stirpes on each of such issue attaining the age of twenty- one years provided that if any child of mine shall die in my lifetime leaving issue who shall survive me and who being male shall attain the age of twenty- one years or being female shall attain that age or marry under that age such issue shall take and if more than one equally between them the share which their his or her parent would have taken of and in my residuary estate if such parent had lived to attain a vested interest."

Held by Dixon C.J. and Kitto J., Fullagar J. dissenting, that issue as used in the will meant all lineal descendants and not simply children of the testator's

Held further by Dixon C.J. and Kitto J. that the class consisting of lineal descendants was subject to no limitation either as a matter of construction of the will or the application of the rule in Andrews v. Partington (1791)

97 CLR 600

3 Bro. C.C. 401 [29 E.R. 610] which would save the disposition from being bad for remoteness and, consequently, that there was an intestacy as to the disposition of corpus subject to the life interests in income of the testator's EQUITY

Decision of the Supreme Court of Victoria (Martin J.), reversed.

APPEAL from the Supreme Court of Victoria.

John Buick died on 23rd November 1925 leaving a will dated 13th October 1925, probate whereof was granted by the Supreme Court of Victoria on 18th March 1926 to Daisy Buick and Frank Stanley Berry. The last-named executor having died on 2nd March 1954, pursuant to the terms of the said will probate was duly granted by the said court in his stead to the Equity Trustees Executors and Agency Co. Ltd.

On 1st August 1956 the Equity Trustees Executors and Agency Co. Ltd. caused to be issued out of the Supreme Court of Victoria an originating summons seeking a determination, without adminis- tration, of certain questions. The defendants to 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: [1957] HCA 65
Decision Date: 10 October 1957

CaseChat Overview and Summary

The case of *Buick v Equity Trustees Executors & Agency Co Ltd* concerned the interpretation of a testator's will regarding the distribution of his residuary estate. The testator, John Buick, left a will that provided for his widow and children. The dispute arose over the meaning of the term "issue" and the application of the rule against perpetuities to the dispositions made in the will. The matter was heard in the High Court of Australia, which overturned a decision of the Supreme Court of Victoria.

The primary legal issues before the High Court were: (1) whether the word "issue" in the will referred to all lineal descendants or only to children of the testator's children; and (2) whether the dispositions to "issue" were valid under the rule against perpetuities, or if they were void for remoteness, leading to an intestacy. The court was also required to determine the precise interests of the beneficiaries in both income and capital.

Dixon C.J. and Kitto J., in their joint judgment, held that "issue" in the will meant all lineal descendants. They reasoned that the phrase "per stirpes" indicated a distribution among descendants, and there was no sufficient ground to confine the meaning to "children." Furthermore, they concluded that the gift to issue was contingent upon attaining the age of twenty-one years, and this contingency could occur outside the perpetuity period, rendering the gift void for remoteness. Consequently, they found an intestacy as to the corpus of the estate, subject to the life interests in income. Fullagar J. dissented, interpreting "issue" to mean "children," which would have validated the dispositions.

The High Court allowed the appeal, reversing the decision of the Supreme Court of Victoria. The court ordered that there was an intestacy as to the disposition of the corpus of the testator's estate, subject to the life interests in income of the testator's widow and children.

Orders