Butler v Trustees Executors and Agency Co Ltd

The case of *Butler v Trustees Executors and Agency Co Ltd* concerned the construction of a will. The testator had made a gift of property to his son, to be held in fee simple upon his attaining the age of 21. However, the will also stipulated a gift over to other beneficiaries in the event that the son died "under 21, or unmarried, or without male issue". The dispute before the Full High Court of Australia revolved around the interpretation of these conditions.

The central legal issue before the Court was whether the disjunctive conjunction "or" in the gift over clause should be interpreted as a conjunctive "and". This interpretation was crucial to determining whether the gift over would take effect upon the occurrence of any one of the specified events, or only upon the occurrence of all of them. The Court had to consider the testator's intention in drafting the will and the established principles of will construction.

The Court, applying established principles of construction, held that the word "or" in the phrase "under 21, or unmarried, or without male issue" should be read as "and". Griffith C.J. reasoned that the testator's intention was to ensure that the property ultimately passed to the son's male issue, and that the conditions were intended to operate cumulatively rather than disjunctively. The Court found that reading "or" as "and" was necessary to give effect to this presumed intention, preventing an unintended intestacy or an unintended distribution of the property. The Court therefore concluded that the gift over would only take effect if the son died under 21 *and* unmarried *and* without male issue.