By his will the testator directed his trustees to hold certain real property in Melbourne in trust for his nephews W. and J. 'during their joint lives as tenants in common and on the death of either of them in trust as to the undivided moiety held in trust for him for his sons (if more than one) or for his son (if only one) who shall attain the age of twenty-one years but failing such sons attaining that age the said undivided moiety shall be held for the survivor of them " the said W. and J. "during his life and after the death of such survivor for his sons or son who shall attain the age of twenty-one years and if there should be no son of either of the nephews who should attain the age of twenty-one years, then over as if the testator had died intestate. The testator further directed his trustees to hold the residue of his estate in trust for the statutory next of kin.

Held that the intention of the testator sufficiently appeared to make pro- vision for each of his nephews during his life and after his death a further provision in remainder for such of his nephews' sons as should attain the age of twenty-one years, and that, W. and J. having died, the trustees held the property in question in trust as to one undivided moiety for the children of W., and as to the other moiety for the children of J.

Decision of the Supreme Court of Victoria (Full Court) affirmed.

54 CLR 446

APPEAL from the Supreme Court of Victoria.

By his will the testator, William Henderson Glen, who died on 6th February 1892, after making certain devises and bequests, provided: "I direct my trustees hereinafter named to hold my property in Collins Street and Little Collins Street Melbourne from and after the twenty-fifth day of August One thousand eight hundred and ninety-five in trust for my nephews William Glen and John Glen during their joint lives as tenants in common and on the death of either of them in trust as to the undivided moiety held in trust for him for his sons (if more than one) or for his son (if only one) who shall attain the age of twenty-one years but failing such sons attaining that age the said undivided moiety shall be held for the survivor of them the said William Glen and John Glen during his life and after the death of such survivor for his sons or son who shall attain the age of twenty-one years and if there shall be no son of either of my said nephews who shall attain…

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.

Continue reading Currie v Glen

Details

AGLC: Currie v Glen [1936] HCA 1
Case: [1936] HCA 1
Decision Date: 13 February 1936

CaseChat Overview and Summary

The appeal concerned the interpretation of a clause in the will of William Henderson Glen, who died in 1892. The testator directed his trustees to hold certain Melbourne property in trust for his nephews, William Glen and John Glen, during their joint lives as tenants in common. The clause further stipulated that upon the death of either nephew, his undivided moiety was to be held in trust for his sons who attained the age of twenty-one years. If no such sons attained that age, the moiety was to be held for the survivor of the nephews during his life, and after the survivor's death, for his sons who attained twenty-one. If no son of either nephew attained twenty-one, the property was to pass to the testator's next of kin. Both nephews, John Glen and William Glen, died leaving sons who attained the age of twenty-one. The dispute arose as to whether the sons of William Glen, the nephew who died second, were entitled to his undivided moiety.

The legal issue before the High Court was whether the testator's will, as written, effectively provided for the devolution of the undivided moiety of the nephew who died second, or if an implication was necessary to give effect to the testator's apparent intention. Specifically, the court had to determine if the phrase "on the death of either of them" should be interpreted as "on the death of each of them" and whether the word "survivor" should be construed as "other" in certain circumstances, or if the will contained an omission that required judicial interpretation to fill.

The High Court, affirming the decision of the Supreme Court of Victoria, held that the testator's intention was to provide for each nephew's moiety to pass to his sons who attained the age of twenty-one. While acknowledging the potential ambiguity in the wording, particularly concerning the duration of the joint lives estate and the use of "either" and "survivor," the court found that the overall scheme of the will, including the ultimate gift over to next of kin, strongly indicated an intention to dispose of both moieties to the sons of the nephews. The court concluded that the testator had sufficiently expressed his intention to make provision for the sons of each nephew, and therefore, the sons of William Glen were entitled to his undivided moiety.

The appeal was dismissed. The High Court ordered that the costs of all parties, other than the appellant, be taxed and paid out of the properties in question, with the trustee's costs to be taxed as between solicitor and client. Specific directions were given regarding the allocation of costs for the interests of the sons of William Glen and their assignees, ensuring their priorities were respected.

Orders