Epple v Stone - [1906] HCA 9

STONE AND ANOTHER

PLAINTIFF AND DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF Will Construction-Gi to two persons of income 'in equal shares during their

respective lives and the life of the survivor"-Gift over of corpus to their children per stirpes- - -Tenancy in common, MELBOURNE,

A testator by his will devised certain land to trustees upon trust to hold March 22, 23.

the same " during the lives of his two daughters and the survivor of them," and to pay the income thereof to his two daughters "in equal shares during their respective lives and the life of the survivor of them." He further directed that after the death of the survivor the land should be sold and the proceeds divided equally between his grandchildren, being the children of his two daughters, "each of my said daughters' shares going to her own children only."

Held, that the daughters took as tenants in common, and that on the death of one of them, her representatives were entitled to one-half of the income during the life of the surviving daughter.

Decision of àBeckett J., (Stone v. Epple (1906) V.L.R., 82 27 A.L.T., 136), affirmed.

APPEAL from the Supreme Court of Victoria.

By his last will Robert Balleny, after making certain bequests, devised certain land, which he afterwards referred to as his "trust estate" to the two executors and trustees appointed by the will, "upon trust to hold the same during the lives of my two daughters the said Jessie Jane Epple and Anne Dunlop Russell and the survivor of them and to receive the rents profits and income thereof upon trust to pay the same to my said two daughters in

3 CLR 413

equal shares during their respective lives and the life of the H. survivor of them for their own use and benefit respectively free from the debts and control of their respective husbands, and I declare that my said daughters shall not have power to anticipate their respective incomes and SO that their receipts alone shall be a sufficient discharge to the trustees for the time being of this my will

I direct my trustees SO soon as may be after the death of the last surviving of my said daughters to sell and con- vert into money the whole of my said 'trust estate'

I direct that my trustee shall stand possessed of the proceeds to arise from such sale and conversion upon trust to divide and pay the same equally between all my grandehildren being the children of my said two daughters each of my said daughters' shares going to her own children only."

The testator died in September, 1898, leaving him surviving his two daughters mentioned in the will. Anne Dunlop Russell died on 30th July, 1905, leaving children her surviving.

An originating summons was taken out by Allwyn Stone, the trustee of the testator's estate, seeking the determination of the following question (inter alia):- What person or persons is or are…

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 Epple v Stone

Details

AGLC: Epple v Stone [1906] HCA 9
Case: [1906] HCA 9
Decision Date: 23 March 1906

CaseChat Overview and Summary

The dispute in *Epple v Stone* concerned the construction of a will and the nature of a gift of income made to two beneficiaries. The matter came before the High Court of Australia, comprising Griffith C.J., Barton and O'Connor JJ.

The primary legal issue before the Court was to determine the nature of the beneficiaries' interests in the income generated by the corpus of the estate. Specifically, the Court had to ascertain whether the beneficiaries held the income as joint tenants or as tenants in common, given the wording of the gift which provided for income "in equal shares during their respective lives and the life of the survivor".

The Court reasoned that the phrase "in equal shares" was a clear indication that the beneficiaries were intended to take the income as tenants in common, rather than as joint tenants. This interpretation was reinforced by the subsequent gift over of the corpus to their children per stirpes, which further suggested a division of interests rather than a unified one. The Court held that the beneficiaries were entitled to the income as tenants in common during their respective lives and the life of the survivor.

Orders