Currie v Glen

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.