Edmonds v Morrissey

[2016] NSWSC 342

Supreme Court

New South Wales

Medium Neutral Citation:	Edmonds v Morrissey [2016] NSWSC 342
Hearing dates:	2 November 2015, 22 February 2016
Date of orders:	31 March 2016
Decision date:	31 March 2016
Jurisdiction:	Equity
Before:	Darke J
Decision:	Declaration made that gift in remainder of real estate is shared equally by the plaintiff and the first defendant as tenants in common.
Catchwords:	SUCCESSION – wills – construction of will – “issue children” – whether intention to narrow usual meaning of “issue” – whether sufficiently clear that words were used in error when other words must have been intended
Cases Cited:	Aboud v Aboud [1960] NSWR 498 Butlin v Butlin (1966) 113 CLR 353 Fell v Fell (1922) 31 CLR 268 In re Dayrell; Hastie v Dayrell [1904] 2 Ch 496 Matthews v Williams (1941) 65 CLR 639 Re Cook (deceased); Fellows v Boyd [1968] 1 NSWR 796 Tatham v Huxtable (1950) 81 CLR 639
Category:	Principal judgment
Parties:	Nola Anne Edmonds (Plaintiff) John Patrick Morrissey (First Defendant) Paul Shiels (Second Defendant) Peter Shiels (Third Defendant)
Representation:	Counsel: N A Confos and T Skinner (Plaintiff) G Mahony (First Defendant) P Blackburn-Hart SC and N Avery-Williams (Second and Third Defendants)   Solicitors: H T Piper, Armidale (Plaintiff) Neil Jones, Orange (Defendant) Fox Legal, Armidale (Second and Third Defendants)
File Number(s):	2015/147847
Publication restriction:	None

Judgment

Introduction

1. These proceedings concern the last will of Mr John Morrissey (“the testator”) who died on 2 July 1948. In particular, the proceedings are concerned with a gift in remainder of the testator’s real property.

2. The plaintiff, Nola Anne Edmonds (nee Morrissey), and the first defendant, John Patrick Morrissey, are the trustees under the last will of the testator dated 28 October 1938. They are grandchildren of the testator, and children of the testator’s son Thomas Patrick Morrissey. Thomas Patrick Morrissey had another child, Imelda Clare Shiels, who died on 17 October 1987. Thomas Patrick Morrissey himself died on 30 September 1993.

3. A difference of opinion emerged between the plaintiff and the first defendant as to whether the gift in remainder is shared equally by the plaintiff and the first defendant, or whether it is shared by the plaintiff as to one third, the first defendant as to one third, and the children of Imelda Shiels equally as to the remaining third.

4. By a Summons filed on 18 May 2015 the plaintiff sought judicial advice in relation to this difference of opinion. The first defendant was then the only defendant. The first defendant (who is 85 years of age) and the plaintiff (who is 77 years of age) took opposing sides. The matter so constituted came on for hearing on 2 November 2015.

5. When the matter was called on I expressed the view that proceeding by way of a Summons for judicial advice was not appropriate in circumstances where questions of construction were involved, and where not all interested persons or potentially affected persons were made parties to the proceedings or otherwise given an opportunity to be heard. So as not to waste time, the Court received submissions from the plaintiff and the first defendant; directions were later made to facilitate the joinder to the proceedings of the children of Imelda Shiels (Mr Paul Shiels and Mr Peter Shiels) and the giving of notice of the proceedings to the other grandchildren of Thomas Patrick Morrissey. On at least one possible construction, these grandchildren would share in a portion of the gift.

6. An Amended Summons, which took the form of a construction summons, was filed on 24 November 2015. Paul Shiels and Peter Shiels were added as the second and third defendants respectively. Directions were made for the Amended Summons to be served upon the other grandchildren of Thomas Patrick Morrissey, and for such grandchildren to seek to be joined to the proceedings if they wished. None of them sought to do so. Directions were also made for the filing and serving of written submissions and for the making of any requests for a further oral hearing. Further written submissions were filed and served. All parties were content for the matter to be determined without any further oral hearing.

The Will

7. The testator’s will (together with a codicil dated 11 July 1945) deals first with the payment of debts and certain pecuniary legacies out of the personal estate. The will goes on to deal with the testator’s real estate in the following terms:

AND as to my Real Estate I DIRECT my Trustees to hold the same UPON TRUST to permit and allow my said son Thomas Patrick Morrissey to have the use occupation benefit and enjoyment thereof during his life………AND from and after the death of my said son Thomas Patrick Morrissey I DIRECT my Trustees to transfer and convey my said Real Estate to such of the issue children of the said Thomas Patrick Morrissey as shall be alive at the date of his death and shall live to attain the age of twenty one years and if more than one such issue children then to them in equal shares as Tenants in Common AND in the event of there being no issue children or grand-children of my said son Thomas Patrick Morrissey who shall survive him and attain the age of twenty one years THEN and in such case I DIRECT my said Trustees to sell and convert my said Real Estate into money and to divide the nett proceeds of such sale and conversion between my said three daughters MARY COOPER, ELLEN McGUIRE and MARGARET DAVEY in equal shares AND in the event of my said Daughters or any of them being deceased THEN the share which such deceased Daughter would have been entitled under this my Will had she survived till the period of distribution shall go to and devolve upon her children and if more than one in equal shares…..

8. The point of construction primarily concerns the meaning of the words “issue children”. Those words appear three times (at lines 27, 29 and 31 of the Will) in the provision that deals with the testator’s real estate.

Submissions

9. The plaintiff, for whom Mr N A Confos and Mr T Skinner of Counsel appeared, submitted that the expression “issue children” exhibits an intention to narrow the usual meaning of the term “issue” which extends to all descendants or progeny (see Matthews v Williams (1941) 65 CLR 639 at 650-651). The plaintiff further submitted that the reference to “grand-children” in conjunction with “issue children” at the third appearance of the latter (‘in the event of there being no issue children or grand-children…’) indicates that the testator intended that the expression would include grandchildren of Thomas Patrick Morrissey. It was suggested that it was likely that the word “grand-children” was accidentally omitted from earlier references in the will to “issue children”. It was put that this was more likely than that the later reference to “grand-children” had been included by mistake.

10. The plaintiff further submitted that in circumstances where, in addition to the plaintiff and the first defendant, the two children of Imelda Shiels survived Thomas Patrick Morrissey and attained the age of 21 years, those grandchildren (the second and third defendants) took the one third share that would have gone to Imelda Shiels had she not pre-deceased her father.

11. The first defendant, for whom Ms G Mahony of Counsel appeared, submitted that the expression “issue children” should be construed as including only children of Thomas Patrick Morrissey. That is, the usual meaning of “issue” was said to be qualified by use of the word “children” so that the only issue who are included are children and that grand-children or remoter issue of Thomas Patrick Morrissey would not be included. It was suggested that the reference to “grand-children” was best explained as forming part of a gift that would take effect only if the primary gift (to such of the issue children of Thomas Patrick Morrissey who survived their father and attained the age of 21 years) failed. The inclusion of the reference to “grand-children” might otherwise be considered an error. It was put that this was at least as likely as that “grand-children” was twice omitted where “issue children” appears earlier.

12. On the first defendant’s construction, the gift is shared by the plaintiff and the first defendant equally as tenants in common, as they constitute such of the issue children of Thomas Patrick Morrissey as survived him and attained the age of 21 years.

13. The second and third defendants, for whom Mr P Blackburn-Hart SC and Mr N Avery-Williams of Counsel appeared, submitted that the expression “issue children” refers to a class consisting of all the issue (that is, issue in all degrees) of Thomas Patrick Morrissey who are alive at the date of the death of Thomas Patrick Morrissey and who attain the age of 21 years, and that members of that class (including the second and third defendants) share equally in the gift in remainder as tenants in common. It was submitted that “issue children” cannot mean “children” because the testator later used the word “children” (“her children”) in the gift over; and because the word “issue” would then have no work to perform. It was further submitted that the inclusion of the words “or grand-children”, where “issue children” appears for the third time, should be construed to mean that grandchildren are members of the class of “issue children”, and that the words “or grand-children” would otherwise be redundant.

Determination

14. The general principles applicable to the construction of wills may be summarised, for the purposes of this case, as follows. The Court must construe the language of the instrument, read as a whole, in order to determine the testator’s intention. The words of a will are given their usual or ordinary grammatical meaning, unless the context indicates to the contrary, or the ordinary meaning lacks sense. In some instances, it may be clear that words have been employed in error and that other words must have been intended. If that is so, the will is read as if it contained such words instead (see, for example, In re Dayrell; Hastie v Dayrell [1904] 2 Ch 496; Tatham v Huxtable (1950) 81 CLR 639 at 645 and 651; Aboud v Aboud [1960] NSWR 498).

15. The question of construction here is primarily focused upon the words “issue children” used in relation to Thomas Patrick Morrissey. I agree that this expression exhibits an intention to narrow the usual meaning of the term “issue”, so that the only descendants falling within the ambit of the expression are children of Thomas Patrick Morrissey (Re Cook (deceased); Fellows v Boyd [1968] 1 NSWR 796 at 799-800). That is, the ordinary meaning of the expression “issue children” used in relation to Thomas Patrick Morrissey, encompasses only children of Thomas Patrick Morrissey.

16. It is of course necessary to view the words in the context of the will as a whole. The Court must consider whether, as submitted by the plaintiff and the second and third defendants, the context indicates that a different meaning was intended by the use of the expression, or that words were employed in error when other words must have been intended. However, for the reasons which follow, I am not satisfied that any different meaning of the expression is so indicated, or that words were employed in error when other words must have been intended.

17. It is true that the testator later used the word “children”, and that he could have equally used that word in relation to Thomas Patrick Morrissey instead of “issue children” in lines 27 and 29 of the will. Nevertheless, I do not think it follows that “issue children” where it appears in lines 27 and 29 of the will cannot have a meaning that encompasses only children of Thomas Patrick Morrissey. The testator has twice chosen the alternative “issue children” for the purposes of the primary gift in remainder. It should not be assumed, merely from the fact that the testator could have employed a different term (which is found later in the will), that a meaning other than the ordinary meaning of the chosen words must have been intended. Further, using the word “children” in conjunction with “issue” so as to narrow the meaning of “issue” does not have the consequence that “issue” has no work to perform.

18. Of greater significance is the reference to “grand-children” in conjunction with “issue children” where it appears in line 31 of the will. That reference undoubtedly sounds a discordant note as one reads that part of the will. It immediately prompts the question whether the same reference was intended to be included in conjunction with “issue children” where it appears in lines 27 and 29 of the will, but was omitted due to error. It was submitted by the plaintiff that it was more likely that an accidental omission of that nature would occur than that the words “or grand-children” would be accidentally included. The general proposition was advanced that an accidental omission of words is more likely than an accidental inclusion of words.

19. I have some doubt about that proposition. The likelihood of an erroneous omission as compared to the likelihood of an erroneous inclusion might depend upon the particular manner in which the instrument in question was drafted and compiled. In any event, it seems to me that whatever the strength of the proposition it is undermined in this case by the circumstance that the postulated omission occurs twice.

20. I do not think it is clear that the words “or grand-children” were intended to be used in conjunction with “issue children” in lines 27 and 29 of the will, but were omitted due to error. If those words were added, the primary gift in remainder would be shared equally amongst certain members of two generations of descendants of Thomas Patrick Morrissey, namely, amongst such of the children or grandchildren of Thomas Patrick Morrissey as shall survive him and attain the age of 21 years. No distinction is drawn between the two generations, or between different lines of descendant. This seems odd, having regard to the terms of the gift over (at lines 33 to 41 of the will) which provide for the proceeds of sale of the real estate to be shared amongst the testator’s three daughters, but that if the gift to any daughter fails then the share that would have gone to the daughter goes to “her children” (in equal shares if more than one). I note further that the gift over suggests an intention to benefit certain of the testator’s children and grandchildren only, and not remoter issue. If the words “or grand-children” were added to the primary gift in remainder, it would suggest an intention to benefit remoter issue, namely, certain of the testator’s grandchildren and great-grandchildren. None of these matters are of great moment, but they serve to weaken the argument that “or grand-children” must have been erroneously omitted from lines 27 and 29 of the will. To my mind, it is at least as likely that the reference to grand-children in line 31 of the will was erroneously included as that such reference was erroneously omitted from lines 27 and 29 of the will.

21. Taking all of the above matters into account, I am unable to conclude that it is sufficiently clear that the words “or grand-children” were mistakenly omitted from lines 27 and 29 of the will due to error (compare Fell v Fell (1922) 31 CLR 268 at 274 per Isaacs J; Butlin v Butlin (1966) 113 CLR 353 at 357 per Barwick CJ and at 363 per Menzies J). In these circumstances I do not think that it is appropriate to read the words “issue children” in lines 27 and 29 of the will as if the words “or grand-children” were used in conjunction with them in those places. To do so would involve an unwarranted remaking or rewriting of the will.

22. I appreciate that taking this approach allows the later reference to grand-children to generate some difficulty and disharmony in the reading of the will as a whole. The presence of that reference may be the result of an error. As I have said, this is no less likely that the reference was omitted from lines 27 and 29 of the will as a result of error. It may be that the reference was included as part of an attempt to benefit the grandchildren of Thomas Patrick Morrissey in certain circumstances (for example if none of the children of Thomas Patrick Morrissey satisfied the conditions for the gift in remainder), but that this attempt was undermined by inadequate drafting. It is not necessary to speculate further about such possibilities.

23. In my opinion, the words “issue children” as found at lines 27 and 29 of the will in relation to Thomas Patrick Morrissey should be construed in accordance with their ordinary meanings, such that they encompass only children of Thomas Patrick Morrissey. On that basis, and in the events that have happened, the gift in remainder of the testator’s real estate is shared equally by the plaintiff and the first defendant as tenants in common. The Court will make a declaration to that effect.

24. It is appropriate that the plaintiff and the first defendant, as trustees under the will, have their costs paid out of the trust estate on the indemnity basis. It is also appropriate that the second and third defendants have their costs paid out of the trust estate, although on the ordinary basis only. The second and third defendants were proper parties to the proceedings, which concerned an issue of construction that arose from certain features of the drafting of the will, their submissions in support of the interests of grandchildren of Thomas Patrick Morrissey were of assistance to the Court in resolving the issue.

25. The Court makes the following orders:

1. Declares that upon the true construction of the last will of the late John Morrissey dated 28 October 1938, and in the events that have happened, the gift in remainder of the testator’s real estate is shared equally by the plaintiff and the first defendant as tenants in common;

2. Orders that the costs of the plaintiff and the first defendant be paid out of the trust estate on the indemnity basis; and

3. Orders that the costs of the second and third defendants be paid out of the trust estate on the ordinary basis.

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Decision last updated: 01 April 2016