Fairbairn v Varvaressos - [2010] NSWCA 234

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Fairbairn v Varvaressos [2010] NSWCA 234
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 March 2010

JUDGMENT DATE:
15 September 2010

JUDGMENT OF: Campbell JA at 1; Macfarlan JA at 129; Young JA at 130

DECISION: Appeal dismissed with costs, including any costs arising from the Amended Notice of Appeal.

CATCHWORDS: WILLS & ESTATES – construction of will – clause determining the manner in which testator’s house and contents would be dealt with – whether clause operated to cause remainder consequent on child K’s death to vest in interest in two other children, D and I, from the date of testator’s death, subject to defeasance if K died leaving one child above the age of 21 – ascertaining basic scheme of will as aid to construction – drawing assistance from the presumption against intestacy – vesting of a gift – whether Boraston’s case was misapplied – preference for construing gift as vested – distinction between vested estates in land and contingent remainders – authorities discussed - REAL PROPERTY – vested and future contingent interests – whether limitation amounts to vested remainder or contingent remainder – discussion of concepts of “vested”, “estate in land” and “contingent remainder” – relevance of Luddington v Kime – contingent remainders as property rights

LEGISLATION CITED: Conveyancing Act 1919
Probate and Administration Act 1898
Statute of Uses 1535
Statute of Wills 1540
Succession Act 2006
Wills Probate and Administration Act 1898

CATEGORY: Principal judgment

CASES CITED: Boraston’s Case (1587) 3 Co Rep 19a; 76 ER 668
Bruce v Charlton (1842) 13 Sim 65; 60 ER 26
Coorey v George (27 February 1986, unreported)
Duffield v Duffield (1829) 1 Dow & Clark 268; 6 ER 525
Fairbairn v Varvaressos (Palmer J, 13 May 2009, unreported)
Fairbairn v Varvaressos [2009] NSWSC 272
Hammersley v Newton [2005] WASC 221; [2005] 30 WAR 568
Hickling v Fair [1899] AC 15
Hume v Perpetual Trustees Executors and Agency Company of Tasmania Limited (1939) 62 CLR 242
In Re Firth; Loveridge v Firth [1914] 2 Ch 386
In Re Sanders Trusts (1866) 1 Eq 675
In Re Skinner Deceased [1965] VR 660
Kenna v Conolly (1938) 60 CLR 583
Luddington v Kime (1697) 1 Ld Raym 203; 91 ER 1031
National Provincial Bank Ltd v Ainsworth [1965] AC 1175
Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18
Perpetual Trustee Company (Ltd) v Scheiler (1948) 49 SR (NSW) 169
Re Byrne Deceased [1967] VR 96
Re Ellenborough [1903] 1 Ch 697
Re Shannon [1968] NZLR 852
Re Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Smell v Dee (1707) 2 Salk 415; 91 ER 360
Tailby v Official Receiver (1888) 13 AC 523
Taylor v Graham (1878) 3 AC 1287
Tompkins v Simmons (1931) 44 CLR 546
Wagstaff v Crosby (1846) 2 Coll 746; 63 ER 943

TEXTS CITED: Baker, An Introduction to English Legal History, 4th ed OUP
Fearne, Contingent Remainders and Executory Devises (10th ed London 1844)
H T Tiffany, The Law of Real Property and Other Interests in Land (Chicago 1920)
Halsbury’s Laws of England 2nd ed vol 34
Hargreaves & Helmore, An Introduction to the Principles of Land Law (New South Wales) (1963)
Jarman on Wills, 8th ed
Megarry & Wade, The Law of Real Property 7th ed 2008
Theobald on Wills, 16th ed par [43-28]

PARTIES: Joanna Marie Fairbairn (Appellant)
George and Yvette Varvaressos (First Respondents)
Kyriakoola Varvaressos (Second Respondent)

FILE NUMBER(S): CA 2009/298302

COUNSEL: DH Murr SC; J Pentelow (Appellant)
MK Meek SC; G Doherty (Respondents)

SOLICITORS: Terence Stern, Bondi Junction (Appellant)
Mervyn Finlay Thorburn & Marshall (Respondents)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 1198/95

LOWER COURT JUDICIAL OFFICER: Palmer J

LOWER COURT DATE OF DECISION: 9 April 2009 and 13 May 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Fairbairn v Varvaressos [2009] NSWSC 272

CA 40214/09
SC 1198/95

CAMPBELL JA
MACFARLAN JA
YOUNG JA
15 SEPTEMBER 2010

JOANNA MARIE FAIRBAIRN v GEORGE VARVARESSOS & ORS

Judgment

:

2 This is an appeal from two decisions of Palmer J. One of the decisions dismissed a Further Amended Summons whereby the Appellant advanced a construction of a clause in the will of her late father (Fairbairn v Varvaressos [2009] NSWSC 272). The other decision was one in which Palmer J ordered the Appellant to pay the costs of the issue of will construction that his Honour had determined (Fairbairn v Varvaressos, Palmer J, 13 May 2009, unreported). The clause in the will that is the subject of disagreement is one whereby the Deceased stated the manner in which his house and its contents should be dealt with.

3 The will in question is that of the late George Varvaressos (“the Deceased”). He died on 17 April 1961 aged 79, leaving a will dated 1 April 1960. His wife predeceased him.

4 The Deceased had eight children. Without intending any disrespect thereby, it is convenient to refer to those children by their first names. Five of them are relevant to these proceedings, namely:

Stephen, the eldest, born in about 1906.

Demetrius, the second, born in 1907.

Arhondula, born in 1910. She was known as “Iris” , and came to have the surname Caredes.

Kyriakoola, known as “Kitty” , born in 1925. She is still alive, never married, and has no children.

The Appellant, Joanna, born in 1927. She was known as “Joan”. She had married George Roberts in 1955, but left him in 1958 and was later divorced from him. There were no children of that relationship. In February 1966, well after her father’s death, she married Martin Fairbairn. They had one child, Annelise, who is the Appellant’s only child.

5 The Deceased’s will appointed Stephen, Demetrius and a Sydney solicitor as his executors and trustees. Probate was granted to Stephen and Demetrius, after the solicitor had renounced probate.

6 The will gave pecuniary legacies to two of the Deceased’s grandchildren. Those legacies were unequal in amount. The Deceased had at least one grandchild who was not given any legacy.

7 Clause 5 of the will gave the Deceased’s house and the whole of the furniture and chattels in it to his trustees, to hold upon the following trusts.

KYRIAKOOLA

VARVARESSOS

PROVIDED THAT

I DIRECT

UPON TRUST

ARHONDOULA

CAREDES

(ii) To pay the other equal share to the said Demetrius Varvaressos and the said Arhondoula Caredes in equal shares.

I DIRECT

AND I HEREBY DECLARE

AND I FURTHER DECLARE

8 Clause 6 gave a particular house and its contents in Greece “to such of my children as shall be living at the date of my death and if more than one in equal shares as tenants in common.” The stamp duty affidavit prepared for the purpose of obtaining probate of the will shows that that Greek land had a value of £945. The net dutiable value of the estate was a little over £16,200, of which £11,000 arose from the value of the house that was the subject of the gift in clause 5.

9 Clause 7 of the will gave the residue of his property located in Greece to his trustees for charitable purposes.

10 Clause 8 provided:

I GIVE DEVISE AND BEQUEATH

UPON TRUST

ARHONDOULA CAREDES

UPON TRUST

DEMETRIUS VARVARESSOS

UPON TRUST

KYRIAKOOLA VARVARESSOS

UPON TRUST

ARHONDOULA CAREDES

DEMETRIUS VARVARESSOS

UPON TRUST

IOANNA

ROBERTS

UPON TRUST

ARHONDOULA CAREDES

DEMETRIUS VARVARESSOS

11 The case was argued, both before the primary judge and before us, on the basis that it was a practical certainty that Kitty will die without children.

12 Demetrius died in 1988. Iris died in 2002.

13 The Deceased’s house was sold in 1970, and half the proceeds were applied to purchasing a home unit at Rose Bay in which Kitty then resided. She was still residing there at the time of the decision of the primary judge.

14 A one-third interest in that home unit is now held in Kitty’s name, with the remaining two-thirds continuing to be held by the present executors of the Deceased’s estate. Though the Appellant had at one time disputed the propriety of the transfer of that one-third interest to Kitty, that aspect of the dispute had been disposed of before the matter came before Palmer J. Thus, the issue with which his Honour was dealing concerned construction of clause 5(a)(i) of the will, insofar as it applied to the two-thirds interest in the Rose Bay home unit that the Deceased’s executors continue to hold.

15 The particular issue of construction concerns how clause 5(a)(i) operates in the circumstances that will arise, namely that Kitty dies childless, when Demetrius and Iris have predeceased her. Mr Murr SC, counsel for the Appellant, contends that clause 5(a)(i) gives Demetrius and Iris no interest in the remainder that is consequent upon Kitty’s death until the time that Kitty dies. He submits that when Kitty dies, because Demetrius and Iris are both already dead the gift in their favour pursuant to clause 5(a)(i) will not be able to take effect. Thus, he submits, upon Kitty’s death, the interest in remainder will fall into residue, with the consequence that the Appellant will acquire a one-quarter interest in it for life, and the Appellant’s daughter will acquire the interest in remainder (consequent upon the Appellant’s life interest) in that one-quarter share.

16 While the present executors of the Deceased’s estate have (properly) been joined as defendants in the proceedings, and respondents to the appeal, they had taken no active role. It has been Kitty who has taken the active role in contesting the Appellant’s claim, and continues to do so.

17 Mr Meek SC, counsel for Kitty, submitted to the trial judge, and submits to us, that clause 5(a)(i) operated to cause the remainder consequent on Kitty’s death to vest in interest in Demetrius and Iris from the date of the Deceased’s death. He submits that the interest was vested subject to defeasance if Kitty died, leaving at least one child who attained the age of 21. However, he submits, the effect of there being such a vesting in interest subject to defeasance is that when Kitty dies childless, the interests of Demetrius and Iris will mature into interests that are vested in possession, and will form part of the estates of Demetrius and Iris respectively.

18 The primary judge accepted the construction of clause 5(a)(i) for which Mr Meek contends.

19 As Powell J said in Coorey v George (27 February 1986, unreported) at 14, in a passage approved by Bryson J in Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18, at 33, in construing a will:

“… [O]ne’s task is, first, if it be possible, to ascertain, what was the basic scheme which the deceased had conceived for dealing with his estate, and, then, so to construe the will as, if it be possible, to give effect to the scheme so revealed.”

20 Consistently with that approach, in the present case the judge placed reliance, at [32], on “the testator’s intentions as deduced from the will as a whole”. He said, at [32]:

“I infer from Clause 5 as a whole that his intention was that the Bellevue Hill property should go for the benefit of Demetrius and Iris, subject to the benefit which he wished to confer on Kitty and on her children, if she had any.”

21 Mr Murr submits that the judge was mistaken in drawing that inference. Rather, he submits that the judge should have inferred from clause 5 of the will that the testator’s primary intention was that the Bellevue Hill property should go half for the benefit of Kitty and her children, if she had any, and half for the benefit of Demetrius and Iris. He also submits that the judge should have directed his attention to the question of whether it could be inferred in the events that seemed likely to happen – namely that Kitty will die without children, and both Demetrius and Iris predeceasing Kitty – that the testator’s intention was either:

(1) that Kitty’s half share should be disposed of as part of Demetrius’ and Iris’ estates; or

22 Mr Murr submits that the judge should have found that there was nothing in the text of clause 5, nor the surrounding circumstances, that justified the conclusion that intention (1) was more likely than intention (2). He submits that the judge should also have found that intention (2) was inherently more probable.

23 There is, in my view, an insufficient evidentiary basis for concluding that at the time of the Deceased’s will and death, Kitty’s dying childless “seemed likely to happen”. Kitty was born in 1925. Thus, she was aged around 35 at the time the Deceased made his will, and 36 at the time of his death. The will should be construed bearing in mind social practices as at 1960 and 1961, when marriage and child-bearing frequently occurred at an earlier age than they do now. Even bearing that in mind, for a woman to have her first child after the age of 35 or 36 years was clearly not impossible, or even highly unlikely, but the ages are also such that the possibility that she might eventually have no children would appear as a realistic possibility. However, insofar as one was seeking to obtain help in understanding the words of the Deceased’s will by this particular item of surrounding circumstances, in my view it could not be concluded that the prospect of Kitty dying childless was remote.

24 I do not, with respect, accept that it was more probable that the Deceased intended that if Kitty died childless the half share in which she had a life interest should be disposed of as part of the residue of his own estate. Indeed, in my view the text of the will supports the view that it was Demetrius and Iris who were to benefit if Kitty died childless. Even if Demetrius and Iris were to be dead at the time an interest in possession arose under clause 5(a)(i), there is a very real sense in which it could be said that it was Demetrius and Iris who benefited from the gift under clause 5(a)(i), by being able to decide, through their wills or an inter vivos disposition, by whom that gift should be enjoyed when eventually it fell in.

Provisions Besides Clause 5(a)(i) Supporting Judge’s View

25 One reason for this view arises from provisions of the will besides those that are the immediate subject of this dispute. I accept the submission of Mr Meek SC that a larger number of attributes of the will than those upon which the judge relied, assist in showing that the judge’s conclusion was correct.

26 It is clear from reading the will as a whole that the testator was not concerned to achieve equality in the provision that he made for his children, or in the provision that he made for his grandchildren. If one leaves aside the gift of the shares in the Greek house and contents under clause 6 of the will, that were of no substantial financial value, only four of the testator’s eight children were named as beneficiaries. Even Stephen, who was appointed as an executor, was given nothing more than a share in the Greek house and contents.

27 The will shows a persistent favouring of Demetrius and Iris, in several different respects. They are given the interest in remainder that arises under clause 5(a)(i) if Kitty dies without children. They are given half of the proceeds of sale of the house, if it is sold during Kitty’s lifetime, by clause 5(a)(ii). Clause 5(b) gives them two different benefits if the house is not sold during Kitty’s lifetime – they are to receive a half share as tenants in common in any event, and the other half share if Kitty dies without leaving issue. They each receive one-quarter of the residue under clause 8(a) and (b). They receive a further one-quarter share of residue under clause 8(c) if Kitty dies without leaving issue who attain the age of 21 years. They receive a still further one-quarter share of residue under clause 8(d) if Joan dies without leaving issue who attain 21 years. Those interests in residue are given to Demetrius and Iris, notwithstanding that Demetrius was approximately 18 years older than Kitty, and 20 years older than the Appellant, while Iris was approximately 15 years older than Kitty and 17 years older than the Appellant.

28 There is nothing in the terms of the will that suggests that any of these gifts to Demetrius and Iris were ones made on the basis that they were to be enjoyed only if Demetrius and Iris could enjoy them personally, during their respective lifetimes. Some of them – those under clause 5(b), 8(c) and 8(d) – are ones concerning which, because of the respective ages of Demetrius, Iris, Kitty and the Appellant, there was a real prospect, probably more likely than not, that Demetrius and Iris would never have personal enjoyment. It is unlikely that the Deceased intended all these gifts to fail in the case of an event that seemed more likely to happen than not to happen.

29 Conversely, though, at the time of making the will, and of the Deceased’s death, while the ages of Kitty, Demetrius and Iris were such that it may well be more likely that Kitty would die last, there was no certainty that she would do so. It could not be said that the prospect of one or other of Demetrius and Iris outliving Kitty was remote. It would be arbitrary in the extreme for the Deceased to give gifts to Demetrius and Iris that would take effect if they outlived Kitty, but fail if they did not outlive Kitty, when there are no words that say clearly that that was the Deceased’s intention.

30 These considerations are especially powerful in relation to the gifts made by clause 5, as the house that was the subject matter of clause 5 was by far the most significant asset in the estate of the Deceased.

Assistance From Presumption Against Intestacy

31 Another reason for construing the will as supporting the view that it was Demetrius and Iris who were intended to benefit under clause 5(a)(i) if Kitty died childless arises from the presumption that a testator is unlikely to have intended an intestacy. I recognise that clause 5(a)(i) is a gift of specific property, and that frequently the presumption against intestacy does not assist in construing a gift of specific property if the effect of the gift failing would be that the subject matter would then fall into residue, and be effectively disposed of by a residue clause. However, in the present case if the construction for which Mr Murr contends were to be adopted, it would lead to the conclusion that there would be an intestacy as to one-quarter of the residue, and possibly (in an event that would not have seemed a remote possibility at the time of the Deceased making the will, and dying) an intestacy as to a further one-quarter.

32 That possibility arises in this way. If Kitty were to die childless, the effect of clause 8(c) of the will is that a one-quarter share in residue would be held upon trusts indistinguishable from those created by clause 5(a)(i). In the situation of Kitty dying childless, if the wording of clause 5(a)(i) were not such as to make an effective gift to Demetrius and Iris (if they were to predecease Kitty) there would thus be an intestacy as to one-quarter of the residue. Further, clause 8(d) uses closely analogous language to clause 8(c) concerning what is to happen to the one-quarter share in residue given to Joan, if Joan were to die without leaving children who attained 21. Joan is two years younger than Kitty, and at the time of the will, and of the Deceased’s death, was childless, and estranged from her then husband. At the time of making the will there would have been a realistic prospect that Joan might die without leaving a child who attained 21. In that event, if the gift over to Demetrius and Iris would not take effect if (as has happened) they were to predecease Joan, there would be an intestacy as to a further one-quarter share.

33 For these reasons, a reading of the will as a whole leads me to reach the same conclusion as the judge reached concerning the testator’s intentions. However, much of the debate both in the court below and on appeal turned on questions of law and their application to the construction of the will.

34 The present is a case in which the real question at issue has been obscured, rather than enlightened, by technical legal language. The real question at issue is whether Demetrius and Iris were given any rights by clause 5(a)(i) that, in the events that have happened, will result in their estates receiving the interest in remainder under clause 5(a)(i) when eventually Kitty dies childless.

35 There has been elaborate debate about whether the gift that they were given by clause 5(a)(i) was “vested”, and if so when. But the term “vested” itself is in need of explanation. Its origin was as a Latin-derived metaphor meaning, “clothed”. While it has come to be used in a context of technical legal language, it has not shed the inherent imprecision of metaphor to such an extent that it has precisely the same connotation in all legal contexts.

36 There are some gifts that confer vested rights from the moment of creation, that never cease to be vested – but concerning them there is seldom occasion for any debate or discussion about their being vested. More usually, there is an implicit temporal reference in saying that the subject matter of a particular gift is “vested” – just as clothes can be put on and off, so being “vested” is a quality that the subject matter of a gift can lack at one time but then gain. Conversely, there is a legitimate sense in which the subject matter of a gift can be “vested” at a particular time, even if later events might cause the gift not to take effect or to be cut down in quantum. A gift can be “vested” in either of these senses if at the time that is being spoken about, a particular person has an identifiable right of property concerning the subject matter of the gift.

37 Further, just as there is some clothing that one wears in layers, so that it is possible to be clothed with one layer of the clothing at a time when another layer remains to be added, so sometimes a gift of an item is one that involves a gift of several different rights or potentials to acquire rights concerning that item. Concerning such gifts it is possible for a donee to have (and in that sense be vested with) a particular right at one time, even though it is only later or if some event happens (and maybe never) that the donee will have, or be vested with, some different right concerning the gift. If the gift in question is of that type, an incomplete analysis of the situation might result if one enquired whether at some particular time or times the gift is vested, and tried to answer that enquiry with a simple “yes” or “no”. What is needed in that situation is precision about the precise rights concerning that gift that the donee has from time to time.

38 I turn to consider the specific arguments put on the appeal.

39 The judge said, at [29]-[31] of his reasons:

Hickling v Fair

Hammersley v Newton

Boraston’s Case

40 Mr Murr submitted that the judge erred because the principle for which Boraston’s Case is authority is much narrower than the principle that the judge drew from it. Mr Murr also submits that the principle that can be drawn from Boraston’s Case is only that when a remainder is subject to a condition that will certainly occur, so that the only contingency is when it occurs, expressions of time are construed as indicating when it vests in possession, not when it vests in interest. He submits that in the present case the event pursuant to which Demetrius and Iris are to take, namely Kitty dying without issue, was not certain to occur, and thus the principle of Boraston’s Case does not support there being an immediate vesting of the remainder in Demetrius and Iris. Dealing with that submission requires an account of Boraston’s Case.

41 Boraston’s Case (1587) 3 Co Rep 19a; 76 ER 668 was an action for ejectment. Thomas Boraston had at one time held the land in question in fee simple. He had two children, Humphrey and Henry. Humphrey had two daughters, Constance and Margaret. Humphrey died in Thomas’ lifetime, leaving Constance and Margaret as his co-heirs. Hugh was the son and heir of Henry. Thomas made a will giving the land in question to a particular devisee for eight years, and after that eight years to Thomas’ executors “until such time as Hugh Boraston shall accomplish his full age of 21 years” (17a; 666), and on Hugh attaining the age of 21 he was to have the land in fee simple. Hugh died before reaching 21. The report is not clear about whether he died aged 9, or was 9 at the time of Thomas’ death. Phillip was the brother of Hugh, and Hugh’s next heir. After the eight-year term had ended, Phillip (on the one hand) and the husbands of Constance and Margaret (on the other) each let the land to a different tenant. The question at issue in the trial was which tenant had the better title. The court held that the lessee from Phillip had the better title.

42 There is some difficulty in ascertaining what Boraston’s Case can be seen, these days, to be authority for. Part of the difficulty arises from the difficulty that any 21^st century lawyer has in entering the thought-world of a 16^th century lawyer, particularly concerning a subject such as land law in which particular terms have drifted in meaning, and particular concepts have drifted in content, over the centuries. Part of the difficulty arises from the style of law reporting of the time, which reported the arguments of counsel in detail but in which the judicial decision is often reported as nothing more than an umpire’s decision on which side won. The report of Boraston’s Case is of that style – the argument of counsel for the plaintiff starts on 19b (middle of 669 of ER), the argument of counsel for the defendant starts at 20b (671 of ER), while the court decision (at 21b, 675) is a terse: “And judgment was given, that the plaintiff should take nothing by his bill.”

43 It is commonly assumed, from the outcome of the case, that the argument of Sir Edward Coke, counsel for the defendant (as well as reporter of the case), was accepted, but some caution would be needed about concluding that every detail of the argument or nuance of expression in the argument as reported was accepted. However, the outer limits of what the case might stand for can be ascertained by taking Sir Edward’s reported argument at face value. A part of the historical context in which that argument occurred is that the case was decided after the Statute of Uses of 1535 and the Statute of Wills of 1540, and at a time by which executory devises had been recognised.

44 The argument starts (20b; 671) by announcing its conclusion, that the remainder vested in Hugh immediately on Thomas’ death. It invokes a special rule of beneficial construction that is applied to wills, enabling the testator’s intent to be given effect to even if the words were not altogether apt. The evident intent of the testator was to devise his lands to his executors to enable his debts to be paid from the proceeds, and apparently he had calculated that it would take 12 years proceeds to pay his debts – hence the postponement of Hugh taking until he was 21. The testator’s intention of paying his debts from the proceeds of the land would be defeated if the gift to the executors failed as a consequence of Hugh dying before reaching 21. Thus giving effect to the testator’s intention required the will to be construed as though it said that the gift to the executors lasted “until such time as Hugh should have come to his full age of 21”. The argument accepts (21a; 674) that the remainder given to Hugh would not vest in possession until the end of the term given to the executors (but, I interpolate, that has nothing to do with when it vested in interest).

45 The argument continues by stating that there was no uncertainty concerning the interest that Hugh would take, namely (at 21a; 674-5) that it was “no other in effect” to a will whereby:

until his son shall or should have come to his full age of (21 years)

46 In other words, the estate of the executors in the land was one that lasted until the date on which Hugh would have attained his 21^st birthday, even if he did not actually ever attain it. The report says, at 21a-21b; 675:

“For although these are adverbs of time, ‘when, etc’ ‘and then,’ etc, yet they do not amount to make any thing to precede the settling of the remainder, no more than in the common case. A man leases land for life or years, and after the decease of the lessee, or the term ended, the remainder to another, yet it shall remain presently; for when these adverbs refer to a thing which must of necessity happen, there they make no contingency, and it is certain that every man must die … and every term will end … and in the case at Bar certain it is, that Hugh would or might have accomplished his age of twenty-one years, which are, in this case of a will, all one in construction of law.”

47 It thus appears that an essential part of the reasoning in the case involved the manner of construction of a will in which an asset was given to executors for a period of time for payment of debts, for a period of time measured as “until” someone attained a particular age, with a gift over to that person. As a matter of construction of the will, the gift to that person was not contingent upon attaining that age.

48 Even if one takes Sir Edward’s argument in Boraston’s Case at face value, it is not a case that is concerned with when a contingent remainder vests in interest: rather, the beneficial rule of construction applied to wills led to the conclusion that the gift to Hugh was not contingent at all. If one recognises the force of the “may” in [30] of the trial judge’s reasons, it seems to me that [30] is consistent with Sir Edward’s argument in Boraston’s Case. Just as in Boraston’s Case effectuation of the intention of the testator led to a construction of the will under which the gift to Hugh vested in interest immediately on the testator’s death, so, for the reasons I have already given, effectuation of the Deceased’s intention in the present case leads to a construction under which the gift to Kitty and Demetrius vested in interest immediately on the death of the Deceased.

49 I should also mention that, notwithstanding what Boraston’s Case might have actually decided, it has come to be regarded by later writers as the source of a “rule in Boraston’s Case”. For example, Williams on Wills, 9^th edition 2008 para [93.11] states:

Boraston’s Case

“rule in

Boraston’s Case

”

50 In any event, even if Mr Murr were right in submitting that Boraston’s Case is not authority for a wide proposition as the judge cited it, that conclusion would not take him very far. The judge had cited Boraston’s Case as an example of a more general principle that he quoted in para [29] of his reasons. Even if Boraston’s Case was not sufficient to lead to the conclusion the judge drew in [31], that does not mean that that conclusion is wrong.

Authority Favouring the Judge’s Construction

Hickling v Fair

51 Two cases in the House of Lords support the construction that the judge arrived at. Hickling v Fair [1899] AC 15 was an appeal concerning a Scottish will, so some of the terminology concerning proprietary interests differs from the English terminology. A testator set aside on trust, a sum of money, the income of which was to be paid equally to his daughters Margaret, Harriet and Mary during their respective lives (a “life-rent”). All three daughters survived the father. Concerning the capital, the testator directed that on the death of any of his daughters, leaving issue, his trustees were:

“To divide equally among the issue of each of my said daughters the sum … being one-third of the sum directed to be invested as aforesaid, and should any of my said daughters die before the succession to the foresaid provision opens up to them, without leaving lawful issue, the share of the interest or annual profits of the said sum … directed to be invested … to which my daughter so dying would have been entitled had she survived, shall be divided equally, share and share alike, between my surviving daughters, or paid to the last surviving daughter, during all the days of their lives or of her life … and the share of the said capital sum … which would have fallen to be divided amongst the issue (if any) of my daughter so dying, shall be divided equally between the issue of my surviving daughters, or should there be only one surviving daughter having issue, to be paid equally to such issue.”

52 The controversy arose upon the death of Harriet. She died after her father, having had four children, two of whom predeceased Harriet. The question at issue concerned whether it was only the two children of Harriet that survived Harriet who took the capital. The majority in the House of Lords (Lord Shand and Lord Davey, with both of whom Earl of Halsbury LC agreed) held that the legal representatives of Harriet’s children who had predeceased her were entitled to a one-quarter share in the capital. Lord Shand, at 27, said that the principle was:

“[A] provision to one in life-rent only, with a fee to children, vests the fee in the children as a class, so that each child alive at the testator’s death or born afterwards takes a transmissible interest at once, or, in other words, the vesting of the fee is not suspended ‘til the death of the life-renter, with the result that vesting takes place only in such children or issue as survive that event.”

53 Lord Shand also said, at 27:

“… although the bequest may be dependent on a contingency, this will not necessarily prevent the vesting. The time at which the contingency happens in a bequest to a class does not determine the vesting in the individuals composing the class. If the contingency should apply to the individual and relate to his capacity to take, as, for example, a bequest left subject to the condition that the legatee should attain the age of 21 years, there can be no vesting till he or she shall reach that age; but where the contingency applies to a class, and not as a condition of the capacity of the legatee to take, the contingency is not to be imported into the constitution of the trust so as to suspend vesting till the death of the life-renter.”

54 Mr Murr SC submits that these principles relate only to the particular situation of class gifts. As stated by Lord Shand, that is literally true. However, when a gift is made in the form of a gift to A for life, remainder to B and C (named individuals) as tenants in common, it could not be doubted that B and C took an interest in remainder that was vested in interest at the time of the gift, even though the gift to them would not vest in possession until A’s death.

55 That is the result arrived at in Tompkins v Simmons (1931) 44 CLR 546. It concerned a will under which the testator established a trust fund, the income of which he gave to a life tenant (the testator’s widow), after whose death the trustees were to divide the income amongst his six children. That in substance gave a life estate in one-sixth of the fund to each child. Immediately after the death of one or more of his children “the one-sixth part or parts” of the trust fund together with “the sixth part or parts” of the unapplied income was to be paid and divided equally to such of the child’s children as attained the age of 21 or being daughters marry. Later, the testator made a codicil under which he revoked the gift that had been given to his daughter Margaret. The trial judge held, and it was not contested on appeal, that that revocation did not extend to any rights that had been given to Margaret’s children, upon Margaret’s death. The dispute related to who was entitled to receive one-sixth of the income of the trust fund during Margaret’s lifetime. Dixon J (with whom Gavan Duffy CJ and McTiernan J agreed) described the question raised by the appeal at 556 as “whether the limitation in favour of [Margaret’s] children took effect in possession upon the death of the testator’s widow, or must await the death of [Margaret].” Dixon J accepted, at 558, that:

“… the effect of the material provisions of the will is to create six undivided shares in the trust fund, and to limit each of them to one of the respective named children of the testator for life and after his or her death to his or her children who should attain twenty-one or being daughters marry, with an accruer in default of such children …”

56 He said, at 558-9:

Lainson v Lainson

In this case the limitation of the corpus of the trust fund is introduced by the words ‘and immediately after the decease of any one or more of my sons or daughters.’ There is nothing to rebut the prima facie rule that these words simply mark out the order of succession, and create an interest expectant upon the determination of the prior interest by whatever means that determination may be brought about. In such a case if the prior interest fail from the incapacity of the donee to take, as, for instance, if he attests the will, or if it be revoked, or for some other reason be abolished or abridged, the succeeding interest in the same property is accelerated and takes immediate effect in possession.”

57 Thus, his Honour held that there was no intestacy of the one-sixth interest during Margaret’s lifetime, but rather the interest of her children in that one-sixth share was accelerated. The combined effect of Hickling v Fair and Tompkins v Simmons is that if in Tompkins the gift to Margaret had never been revoked, and if one of Margaret’s children had died during Margaret’s lifetime, that child’s estate would have taken its one-sixth share upon Margaret’s death.

58 Returning to Hickling v Fair, at 28-9 Lord Shand said:

“… there may, however, be cases in which vesting is suspended. Thus, where the right is made conditional on a contingency personal to the legatee such as marriage, or arrival at majority, events or dates uncertain which may never have place, there is a presumption, though not insuperable, that a vesting or right to take was intended to be suspended until the occurrence of the contingency should be ascertained.”

59 The present is not a case where the gift to Demetrius and Iris is conditional upon any contingency that is personal to Demetrius or Iris, so that principle does not apply.

Taylor v Graham

60 One feature of the present case that was absent in Hickling v Fair is that the form of the gift is to A for life, followed by a gift of the capital to children of A, followed by a gift of the capital, if A had no children, to B. That feature was present in Taylor v Graham (1878) 3 AC 1287. It concerned a Scottish will under which the testator gave his residue:

One-third to Jane Gilbert for life, and then for her children in fee.

One-third to Cecilia Gilbert for life, and then for her children in fee.

“and of the lawful child or children procreated or to be procreated of their bodies equally among them per stirpes in fee; or one-fourth share of the said third part to the child or children respectively of each of my said nieces equally among them if more than one in fee.”

61 There were two substitutionary gifts. Under one of them, if either Jane or Cecilia died unmarried and without children, the share of residue of the one who died should accrue to the one who survived and her children, in life-rent and fee respectively. There was also a substitutionary provision as follows:

per stirpes

62 Cecilia died childless in 1870. It was uncontroversial that, thereupon, the one-third of residue that had been given to her and then to her children was added to the one third of residue that had been given to Jane and then to Jane’s children. Jane then died childless in 1877. By the time of Jane’s death, the four M’Cainsh nieces who had been named in the will (Christian, Margaret, Grace and Helen) had all died. Helen had died childless. Each of Christian and Margaret had had children, who were alive at the time of Jane’s death. Grace had had a child, James Taylor, who himself had died before Jane. He died married, and with a child. The appellant was the widow of James Taylor. She contended that the two-thirds of residue to which Jane and her children had been entitled, should be divided into three portions, with one portion passing to the estate of James Taylor, and the other two falling to the families respectively of Christian and Margaret. The opposing contention was raised by the children of Christian and Margaret, who claimed that they should be respectively entitled to half each of the two-thirds interest in residue.

63 It was Mrs Taylor’s contention that prevailed. Lord Gordon began his speech by saying at 1292 that there was no difference between the law of England and that of Scotland in the principles governing the decision of the case. He said that the terms of the gift to the children of the four M’Cainsh nieces (1294):

each

survive the life-rentrices

64 Concerning the shares that were life-rented to the Gilberts, Lord Gordon said, at 1294:

“No doubt there was a contingency in regard to these latter shares, that the Gilberts might have left children, and so have defeated the right of fee given to the children of the M’Cainshes. But this, I think, with the Lord Justice Clerk, was a mere contingency, and was not a condition suspensive of the vesting. As his Lordship says,

‘It is in no respect a proper condition of the legacy. It is only an event before the arrival of which it cannot be known whether the devolving clause has or has not taken effect in favour of the conditional institute. But when that is once ascertained, James Taylor simply takes from the date of his majority or marriage; that is to say, it vests, and whether he pre-deceases or survives the life-rentrix is a matter of no moment.’ ”

65 In other words, notwithstanding that the M’Cainsh descendents would take nothing of the two-thirds that had been left to the Gilberts unless both of the Gilberts died without children, the vesting of an interest in the shares of residue that had been left to the Gilberts happened as soon as the M’Cainsh descendents had fulfilled those conditions that were personal to them (reaching 21 or marrying), and notwithstanding that one or both of the Gilberts were then still alive. Further, once vested, the interest of one of those M’Cainsh descendents was the type of right that passed, on death of the person who held it, to his or her legal personal representative.

66 When the present case is one in which the gift to Demetrius and Iris is not dependent on any condition that is personal to Demetrius or Iris, Lord Gordon’s reasoning in Taylor v Graham leads to a conclusion that their respective rights under clause 5(a)(i) of the will vested as soon as the Deceased died, and were the type of rights that passed on their deaths to their legal personal representatives.

67 Lord Cairns LC agreed with Lord Gordon.

68 Lord Hatherley also agreed, and observed, at 1295-6:

per stirpes

69 Lord Blackburn also agreed. He observed, at 1296-7:

“Mr Taylor’s interest in the fund in dispute was subject not only to the life interest of the two Misses Gilberts, but also to a bequest in fee in favour of their children attaining full age or marrying, and until the survivor of the Misses Gilberts died, such children might come into existence and attain full age or marry; and so till then, it was uncertain whether Mr Taylor, however long he lived, would ever come into possession. I do not think however, that does or ought to make any difference. It is in general for the benefit of the objects of the testator’s bounty that they should be able to deal with their expectant interests at once; which they can do if their interest is vested, though subject to be divested by the happening of a subsequent event; but which they cannot do if their interests are kept in suspense and contingency until that event has happened. And therefore it is to be presumed that a testator intends the gift he gives to be vested subject to being divested, rather than to remain in suspense. As this is no more than a presumption of his intention, it must yield to anything in the testamentary deed which shews a contrary intention. I think that the language of the instrument in question when closely scanned is such as rather to strengthen the presumption that the testator’s intention was in favour of vesting; but I prefer resting my opinion on the ground that there is nothing to rebut that presumption.”

70 In Hickling v Fair, Lord Shand, at 29-30, quoted the passages from the judgments of Lord Gordon and Lord Blackburn in Taylor v Graham that I have earlier set out.

71 By analogy, in the present case, clause 5(a)(i) of the will does not say that if Kitty dies without issue then, and in that event, the interest is to pass to Demetrius and Iris, provided they are then alive. Following Hickling v Fair and Taylor v Graham would lead to a conclusion that the interests of Demetrius and Iris were vested at the time of the Deceased’s grant, were not contingent on Demetrius and Iris surviving Kitty, and created the sort of interest that passed to their respective legal representatives if they died before the contingency to which their gift was subject (Kitty dying without issue).

Preference for Construing Gift as Vested

72 That construction is also supported by the preference of the law to construe a gift as being vested if the language permits: Duffield v Duffield (1829) 1 Dow & Clark 268; 6 ER 525; Taylor v Graham (1878) 3 AC 1287 at 1296-7 per Lord Blackburn; Hickling v Fair [1899] AC 15 at 36 per Lord Davey; In Re Firth; Loveridge v Firth [1914] 2 Ch 386 at 394; Kenna v Conolly (1938) 60 CLR 583 at 596 per Dixon J; Hammersley v Newton [2005] WASC 221; [2005] 30 WAR 568 at [56] per Heenan J.

73 The principle whereby courts favour construing a grant of property rights in a way that results in early vesting is authoritatively laid down for Australian courts in Hume v Perpetual Trustees Executors and Agency Company of Tasmania Limited (1939) 62 CLR 242.

74 At 265, Dixon J said:

Bickersteth v Shanu

Re Blackwell

75 Starke J at 258, said:

Duffield v Duffield

76 At 266, McTiernan J said:

In re Deighton's Settled Estates

77 Mr Murr SC submits that the judge’s construction is wrong because it contravenes a principle established in Luddington v Kime (1697) 1 Ld Raym 203; 91 ER 1031. No mention was made of Luddington v Kime in either Hickling v Fair or Taylor v Graham. It is therefore necessary to consider whether it provides a basis for distinguishing or not following those cases.

was a dispute about whether Armyn Bellingham or Sir Thomas Barnardiston had better title to a parcel of land. The land had once belonged, in fee, to Sir Michael Armyn. He left the land by his will:

“…to Evers Armyn for life without impeachment of waste, and in case that he should have any issue male, then to such issue male and his heirs for ever, and if he should die without issue male, then to Sir Thomas Barnardiston … and his heirs for ever.”

79 Evers Armyn took possession of the land upon the death of Sir Michael Armyn, and suffered a common recovery to the use of himself and his heirs forever. He then devised the land to Armyn Bellingham in fee. Evers Armyn then died without issue.

80 One question concerning who had the better title depended upon whether the estate devised to Evers Armyn was an estate tail, or an estate for life only. If it had been an estate tail then, by suffering the common recovery, Evers Armyn would have acquired the ability to confer a fee simple, by his will, on Armyn Bellingham. The court held that Evers Armyn took only an estate for life by the devise, with a remainder contingent to his issue male in fee.

81 The next question depended upon the nature of the estate that was limited to Sir Thomas Barnardiston, and in particular whether it was a vested remainder, a contingent remainder, or an executory devise. As explained at 207, 1034, if Sir Thomas Barnardiston’s interest was either a vested remainder or an executory devise, Sir Thomas would have the better title, but if it was merely a contingent remainder then it had been destroyed by the recovery that was suffered by Evers Armyn.

82 The court held, by majority, that Sir Thomas’ title was a contingent remainder. Further, as Treby CJ and Powell J said, at 208, 1034-5, it was:

“… a contingency with a double aspect. For if Evers Armyn had had issue male, then the remainder had vested in such issue male in fee; if he died without issue male … then to Sir Thomas Barnardiston in fee. And these are not remainders expectant, the one to take effect after the other, but are contemporary.”

83 They held that the remainder was not vested in Sir Thomas Barnardiston because “… after a contingent fee is limited, no subsequent limitation can be vested.”

84 Megarry & Wade, The Law of Real Property 7^th ed 2008, at 9-004 refer to Luddington v Kime in a paragraph headed “Concealed vestings and contingencies”. It includes:

“Similarly a limitation:

‘To A (a bachelor) for life, remainder to his eldest son for life, but in default of such issue then to B in fee simple’,

gives B a vested remainder, for the contingency expressed is merely the non-existence of a preceding life interest on the failure of which B stands ready to take. But if the gift had been:

‘To A (a bachelor) for life, remainder to his eldest son (if any) in fee simple, remainder to B in fee simple’.

B’s remainder would have been contingent, for there was a rule that no interest which followed a contingent fee simple could be vested. This was because although a grantor can create any number of successive life estates or entails (limited interests) and vest them in living persons, he can part with the fee simple (an absolute interest) only once. Any two limitations of the fee simple are not therefore successive but alternative, and if one is contingent the other must depend on the converse contingency.”

85 There is some academic debate about whether Luddington v Kime correctly states (or stated) a rule of the common law. Mr Meek SC summarises that debate accurately, commencing with a quotation of a footnote to the proposition “… there is a rule that no interest which followed a contingent fee simple could be vested” in the passage from Megarry and Wade that I have just cited:

Luddington v Kime

Limitations

Future Estates

The authorities said to be “in favour of the rule” are not stated.

Future Estates

Limitations

However, it is not easy to discern from Hayes the particular criticism of the rule.

Luddington v Kime

86 I would add that by the time of publication of H T Tiffany, The Law of Real Property and Other Interests in Land (Chicago 1920) Mr Tiffany continued, at 511-513 to have doubts about the principle. As will appear it is not necessary to enter that debate for the purpose of the present case.

was a case in which one central question was whether a limitation had created a contingent remainder in land. A contingent remainder is, by its nature, not a vested remainder. Mr Murr seeks to deploy Luddington v Kime in the present case to show that, contrary to the judge’s conclusion, the rights of Demetrius and Iris under clause 5(a)(i) were not vested.

Vested Estates in Land cf. Contingent Remainders

88 Evaluating that argument calls for some discussion of how the concept of a contingent remainder fitted into English land law, and how a contingent remainder was to be contrasted with a vested estate in land.

89 An “estate” in land is a concept derived from medieval property law. In the form of the feudal system introduced into England after the Conquest, when a lord granted land in return for an obligation for the tenant to provide services, the quid pro quo for those services was referred to as the tenant’s “fee”. By 1200, the right of certain tenants of land to have his heir succeed him as tenant had become recognised. Those inheritable types of tenancy came to be referred to as a “fee”, and continued to be so called after the services that a feudal tenant was supposed to render to his lord had lost their practical relevance. Adoption of this meaning had the effect that the fee concerning land could be in someone who did not have seisin. For example, when there was a life estate, the inheritable fee remained in the lord, and the life tenant had seisin. The fact that the lord had (now) a fee, and would have a right to seisin of the land at a time in the future, meant that the rights to seisin at different times could be regarded as things that presently existed. The various rights to seisin of a piece of land at different times were referred to as estates in the land (see generally Baker, An Introduction to English Legal History, 4^th ed OUP 2002 p 225-233, 259 ff; Hargreaves & Helmore, An Introduction to the Principles of Land Law (New South Wales) (1963) p 41–45). When a will or other document granted a succession of rights concerning land, they were called “limitations”, because each grant of rights defined the limit of the rights of that grantee to seisin in the land, or when and how that grantee might acquire seisin in the land and the limit of the rights of that grantee to seisin, when and if acquired.

90 The estates that the common law recognised were life estates, estates in reversion, and estates in remainder. Estates in reversion arose when the holder of an estate made a grant of an estate that did not exhaust his own estate – at the conclusion of the estate that had been granted, the seisin in the land would revert to the grantor (or his heirs or assigns) for the time that represented the balance of the grantor’s estate. Estates in remainder arose when, after the grant of one estate, a grantor granted a further estate that would entitle the holder to seisin at the conclusion of the first estate that had been granted – the seisin in the land would remain away from the grantor for the duration of that second estate. Hargreaves & Helmore, op cit, p 45 say:

“All such estates are said to be ‘vested’ from the fact that the grantee is immediately ‘clothed’ with his interest; the first estate, carrying with it the present seisin, is ‘vested in possession’; while the subsequent estates, for the time being deprived of the right to seisin, are ‘vested in interest’. Reversions must necessarily be vested, but a remainder so vested in interest is usually referred to as a ‘vested remainder’ to distinguish it from a peculiar type of interest known as ‘contingent remainder’.

A contingent remainder has been defined as ‘a remainder limited so as to depend on an event or condition which may never happen or be performed or which may not happen or be performed till after the determination of the preceding estate’, or to quote Blackstone again, ‘an estate in remainder limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event so that the particular estate may be determined and the remainder never take effect.’

estate

Some Differences Between Luddington v Kime and this Case

91 In Luddington v Kime the limitations in question arose under a will, but that will did not involve any creation of trusts, or gifts stated to be on uses. By contrast, clauses 5 and 8 of the present will stated the trusts upon which certain property in the estate of the Deceased was to be held. When the deceased’s will gave the house to trustees on trust, there is no doubt about what legal estate would exist in whom – there would be a fee simple in the house in the trustees, and any rights of beneficiaries concerning the house would be purely equitable. The terms of the trust upon which the trustees would hold their legal estate is a matter of construction of the terms of the will, subject to any rules of law that govern the valid creation of equitable interests in land.

92 However, the fact that Luddington v Kime concerned legal estates in land, and the present will gave only equitable rights to Demetrius and Iris concerning the clause 5(a)(i) fund, might not be a decisive difference. That is because, while there were exceptions, equity at least sometimes followed the law concerning the circumstances in which it would recognise successive equitable interests in land as taking effect. Sometimes, if an interest in land purportedly created by will could possibly have taken effect only in certain circumstances, had it been a creation of legal interests, equity would similarly recognise it as validly taking effect only in the same circumstances. There was no argument in the present case about whether the gift in clause 5(a)(i) was of a type where equity would follow the law, or of a type concerning which equity took its own course.

93 As well, there may be another problem concerning the application of Luddington v Kime to the present case. Luddington concerned a series of limitations of interests in real estate, while the various rights created by clause 5(a)(i) all concern personalty, namely the fund of money that might result from sale of the house and contents. It was not possible at common law to create estates in chattels (Baker, op cit p 389), though chattels could be the subject of a settlement (Baker op cit p 303). Given the intimate connection between estates and seisin, the same would apply concerning personalty in the form of choses in action (as the clause 5(a)(i) fund would be). The significance (if any) of this was not explored in argument.

94 In all these circumstances I shall consider what the situation would be if I were to assume, without deciding, that the manner of construing a gift “to A for life, then to A’s child, but if A has no child then to B” that was adopted in Luddington v Kime applied to clause 5(a)(i) of the present will.

95 If that reasoning, and Megarry and Wade’s explanation of it, were applicable to the present will, it would lead to the conclusion that the rights that Demetrius and Iris had under clause 5(a)(i) were contingent. They would first be contingent on the event happening without which there would be no clause 5(a)(i) fund at all, ie the Trustees with Kitty’s consent selling the house during Kitty’s lifetime. If that contingency happened (as it did, during the lifetime of both Demetrius and Iris) there was then a further contingency, namely Kitty dying having never had a child, or dying having had one or more children none of whom both (a) survive Kitty and (b) reach 21.

96 But that is not to say that the rights of Demetrius and Iris are also contingent on their surviving Kitty. Nothing in the will says so. Of course it would not be known until the time of Kitty’s death (or indeed after her death, if she were to die having had a child who survived her but was less than 21 at the time of Kitty’s death) whether that condition was satisfied. Until the time the condition was satisfied, Demetrius and Iris would have no higher right than a contingent remainder. That contingent remainder was one that each of Demetrius and Iris acquired at the time of the Deceased’s death. There is a legitimate sense in which that right was then vested in them, even though it was not a right that (then) gave any vested estate in the house or its contents, or any vested right to receive (other than on satisfaction of the conditions) at any time in the future any part of the fund that was dealt with by clause 5(a)(i).

97 By the time of their respective deaths, the right that the will gave them concerning the clause 5(a)(i) fund had altered. One alteration was that it had gone from being a right concerning real estate (the house) to a right concerning personalty (the clause 5(a)(i) fund). Another alteration was that it was no longer subject to the contingency that the house be sold by the trustees with Kitty’s consent during her lifetime. However it was still subject to the contingency of Kitty dying with out a child who (a) survived her, and (b) attained 21.

Contingent Remainders as Property Rights

98 Even though a contingent remainder in land is not an estate in land, it is itself a species of property. Similarly, a contingent remainder in a fund held on trust is a species of property. Rights of property are rights that are “definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability” (per Lord Wilberforce, National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at 1248; Re Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342 per Mason J). In the present case the rights of Demetrius and Iris under clause 5(a)(i) are definable – there is no doubt who has them, that they are rights concerning the half share of the proceeds of sale of the house and contents, and in what events those rights would result in Demetrius and Iris being entitled to actually receive that half share. Their rights are readily identifiable by third parties, from the terms of the will itself, combined with whether or not the Deceased’s house and contents has, at any particular time, been sold. The contingent remainder is capable in its nature of assumption by third parties, because it is assignable inter vivos and by will. An equitable contingent remainder like the present one is assignable in equity for value, provided the intention to assign is clear; Tailby v Official Receiver (1888) 13 AC 523 at 543; Re Ellenborough [1903] 1 Ch 697 at 700. (It may be that section 50 Conveyancing Act 1919 also provides an alternative means of assignment, enabling an equitable contingent remainder to be assigned by deed, but it is unnecessary for present purposes to decide whether s 50 extends beyond legal contingent remainders.) It is also assignable by will (section 5 Wills Probate and Administration Act 1898 in force as at the date of the death of Demetrius and Iris, now replaced by section 4 Succession Act 2006, which needs to be read in conjunction with section 44 Probate and Administration Act 1898, and the wide definition of “property” in section 3 Succession Act 2006). The contingent remainder in the present case has a significant degree of permanence or stability – it arose upon the Deceased’s death, and will endure until such time as it is known whether the conditions for the grant of the interest in remainder to the child or children of Kitty are satisfied.

99 After a person’s death all rights of property that he or she has pass, upon a grant of probate or letters of administration, to the executor or administrator: section 44 Wills Probate and Administration Act 1898 (applicable at the time of the deaths of both Demetrius and Iris, and still in force under the cut-down version of that Act now known as the Probate and Administration Act 1898). Thus, upon the death of Demetrius and Iris their respective contingent remainders would have passed to their respective legal personal representatives.

100 When, in due course, the contingency of Kitty dying childless happens, the contingent remainders that have passed to their legal personal representatives will transmute into two fully-fledged equitable interests in remainder that are vested in interest and also vested in possession.

, 8^th ed, p 1342, confirms that even if a gift given by a will is properly analysed as a contingent remainder, it can still be transmissible. He says:

“… a contingent interest will or will not be transmittable to the personal representatives of a legatee, according to the nature of the contingency on which it is dependent. If the gift is to children who shall live to attain a certain age, or shall survive a given period or event, the death of any child pending the contingency has obviously the effect of striking the name of such deceased child out of the class of presumptive objects; and, consequently, such an interest can never devolve to representatives, as it becomes vested and transmissible at the same instant of time. Where, however, the contingency on which the vesting depends is a collateral event, irrespective of attainment to a given age and surviving a given period, the death of any child pending the contingency works no such exclusion, but simply substitutes and lets in the legatee’s representative for himself.

Thus where a testator bequeathed his personal estate to A, and if he shall die without leaving issue, then over to B; in the event of B surviving the testator, and afterwards dying in the lifetime of A, testate or intestate, his contingent or executorial interest will devolve to his executor or administrator (as the case may be).”

(1948) 49 SR (NSW) 169 concerned a gift by will to trustees, to accumulate the income and hold it for four named grandchildren of the testator “until the youngest of them shall have attained the age of 21 years and then such income to be divided between the said four grandchildren in equal shares”. One of those grandchildren survived the testator, and attained 21, but died before the youngest of the grandchildren had attained 21. Sugerman J held that the interest of that grandchild passed to her legal personal representatives. At 171, he said, concerning the contingency that a particular grandchild would attain 21:

“The presence of this contingency would not affect the position of a beneficiary who died before it occurred, because a contingent interest is transmissible where the contingency does not involve the continuance of the donee’s life, or the fulfilment of some other personal qualification.”

103 Other authority for the transmissibility of contingent remainders, where the contingency is not one that is personal to the donee and the person given the contingent remainder dies before the contingency occurs, may be found in In Re Skinner Deceased [1965] VR 660 (Pape J), Re Byrne Deceased [1967] VR 96 (Menhennitt AJ) and Re Shannon [1968] NZLR 852 (NZ Court of Appeal).

Kenna v Conolly

104 A case showing the working through of the proposition that the interests of Demetrius and Iris were still contingent at the times of their deaths is Kenna v Conolly (1938) 60 CLR 583. It concerned a will that gave the entirety of the testator’s estate on trusts that benefited his children and their issue. A codicil provided:

“… in the case of death and failure of issue of my said children ... all the residue and remainder of my real and personal estate ... shall be equally divided amongst the children of my brother [K] and of my sister [C] and the issue (if any) of such children of my said ... brother and sister who shall be dead provided nevertheless that the issue of any deceased child of my said ... brother and sister shall have no more than the share to which the deceased child or respective deceased children would have been entitled to if living per stirpes and not per capita.”

105 The testator’s children who survived him died without leaving issue. The last of the testator’s children died in 1934. Four children of the testator’s brother K survived the testator, but one of those died, childless, before 1934. The testator’s sister C had five children who survived the testator, but four of them died without issue before 1934. The fifth also died before 1934, but left four children, who were still alive at the time of the action. At first instance in the Supreme Court of New South Wales, Nicholas J held (at 585) that on the true construction of the codicil:

“… in the case of the death and failure of issue of his children such of the children of [K] and [C] as survived the testator took vested interests in equal shares per capita and not per stirpes in that residuary real and personal estate, the interest of each of such children being liable to be divested in the event of the death of that child before the date of distribution of such residuary real and personal estate (that is to say, before the date of the death and failure of issue of the testator’s last surviving child) leaving issue and not otherwise …”.

106 An appeal from that decision was dismissed unanimously by the High Court. Importantly for the present case, a majority disapproved the analysis that Nicholas J had given of when the interests of the children of K and C became vested. However, their disapproval of the analysis did not lead them to conclude that the practical outcome of the real matter in issue – namely, who was entitled to the property in dispute, in the events that had happened – was in any way different from the practical outcome to that question at which Nicholas J had arrived. Rich J, at 588, said:

“There is here no vested gift liable to be divested upon a particular contingency, but everything remained in contingency until the death of the testator’s last surviving child without issue.”

107 However, Rich J held at 589 that for the purpose of identification of the class who would take in the event of that contingency arising, there was no contingency requiring a child of K or C to survive until the time of the death of the testator’s last surviving child without issue. He said, at 589:

“Every member existing at the death of the testator or coming into existence after his death and before the ultimate failure of his issue is qualified to take without any further event personal to himself occurring and without any further event except the failure of the preceding gifts by the death without issue of the testator’s surviving child. In this condition of the title of those members of the class who are nephews and nieces it does not seem to me to matter whether the provision for the inclusion of the children of those dying leaving issue is regarded as divesting or as defeating the prima facie title of the parents so dying. In effect it states specifically that the issue of children of persons who otherwise were members of the class should on their death leaving issue take the parents' place in the class. Such a provision should be confined to the specific event which it describes and should not be made the basis of an implication that survival to the period of distribution is a necessary qualification of members of the class in all events.

108 Starke J was the only judge who made no express or implicit criticism of the analysis of Nicholas J. He concluded, at 591:

“The result is that all the children of the testator's brother and sister, [K] and [C], who survived the testator take a share unless they died leaving issue before the testator’s last surviving child, in which case the issue of such child or children take the parent’s share.”

109 Dixon J gave the fullest analysis. At 594 he said, concerning the declaration that Nicholas J had made:

“It will be noticed that under this declaration the children of [K] and [C] who survive the testator are treated as taking a share which vests in interest before it vests in possession. But actually the limitations to those children remain contingent up to the death without issue of the last surviving child of the testator when they vest in possession. It is true that their survival of the death without issue of the testator’s last surviving child is not among the contingencies which the limitation expressly states. But the whole limitation over is expressed to be contingent on the death without leaving issue of all four of the testator's children. Until the death without issue of the last surviving child, the gift over remained contingent. For ‘a possibility of issue is always supposed to exist in law, unless extinguished by the death of the parties; even though the donees be each of them an hundred years old’ (Blackstone’s Commentaries, vol. II., p. 125). And at the death of the testator leaving all four children him surviving the contingencies were numerous and the likelihood of them occurring was apparently remote. As the gift over must vest alike in interest and in possession on and not before the death without issue of the last surviving child of the testator, there could be no actual vesting and divesting of any of the future interests created by the limitation of residue.”

110 Dixon J went on at 594-5 to consider what the situation would have been if the gift had taken the form of a remainder granted subject to a prior estate that took effect in possession but determined (a result that could arise either by the prior estate coming to its natural end, or coming to an end through an event such as forfeiture or surrender):

“If the limitation of residue to the testator’s nephews and nieces, being children of his sister [C] or of his brother [K], had been absolute and subject only to prior life interests so as to amount to remainders or other future interests expectant only upon the determination of the precedent estate or interest in possession. I should have thought the established rules of construction would have produced the result stated in the decree. The prima facie rule is that a devise or bequest to the children of a named person to take effect absolutely upon the determination of a prior life estate whether given to that person or some other person confers an interest upon every such child who is in existence at the death of the testator or comes into existence after his death and before the determination of the life estate. The quantum of the interest may be diminished as additional members of the class come into existence, but otherwise the interest is vested. …

The presumption is in favour of early vesting; the contingency of survival to the period of distribution or enjoyment is not imported into the description of the class and an interest once vesting is not made the subject of a divesting condition except by express words or clear implication. Such considerations combine to produce the result.”

111 He then turned, at 596-7, to consider “whether the contingencies upon which the residuary gift depends makes inapplicable what otherwise would be the prima facie construction.” He concluded that they did not. In the course of so doing, he said, at 597:

Wagstaff v Crosby

In re Sanders' Trusts

Baldwin v Rogers

112 I interpolate that Wagstaff v Crosby had a factual situation indistinguishable from that of the present case, in that the gift over on the failure of the primary donee to have children is to the secondary donees as named individuals, not as a class. Wagstaff v Crosby was followed, on the point at issue in the present case, in In Re Sanders Trusts (1866) 1 Eq 675 at 683-684.

113 In Perpetual Trustee Company (Ltd) v Scheiler at 171 Sugerman J approved a passage from Halsbury’s Laws of England 2^nd ed vol 34 p 390-391 to the effect that a gift to a class of children when the youngest attained a specified age confers a vested interest on all of them when the youngest attains that age, whether they were living or dead at the time of payment, unless there are other provision in the will from which a contrary inference might be drawn. The approved quotation from Halsbury went on to say:

“In the case of a similar gift to individuals, and not to a class, prima facie they take vested interests although dying before the specified age.”

114 Sugerman J continued:

^th

115 Similarly, the passage from Jarman on Wills p 1342 that I have quoted at [101] refers to the transmissibility of contingent interests as applying equally to interests arising from a class gift, and interests arising from a gift to named individuals.

116 In Kenna v Conolly at 598, Dixon J returned to voice his disapproval of the analysis of Nicholas J:

“Although the decree may not be strictly accurate in its application of the word vested, it declares the rights of the parties in a way which can cause no error.”

117 The remaining member of the Court, McTiernan J made no explicit criticism of the form of the declaration of Nicholas J, but his reasons are inconsistent with its strict application. He said, at 598:

In re Cresswell; Parkin v Cresswell

118 In the present case, none of the complications of class gifts arise, because the gift to Demetrius and Iris, upon failure of Kitty’s issue, was to them as named individuals.

119 I can see no relevant distinction between the structure of the will in Kenna v Conolly, and the structure of the present will. In those circumstances, if it were a matter of any importance, I would follow Kenna v Conolly and hold that the subject matter of the gifts to Demetrius and Iris will not become vested until the death of Kitty without children. That Kenna v Conolly is a High Court decision would be a sufficient reason for taking that course. As well, the careful analytical approach of Dixon J to precisely which rights arose when, is preferable to the result-oriented and policy driven approach of the judges who decided Taylor v Graham. In particular, the reasoning of Lord Gordon, quoted at [64] above, is in terms that assume the answer to the question at issue.

120 However, Kenna v Conolly also provides authority for the irrelevance of precisely when the gift to Demetrius and Iris became, or will become, vested to the real question at issue in these proceedings. Even if the actual subject matter of their gift will not vest in interest until Kitty’s death, they were still given a right that the law recognised relating to that subject matter. The will gave it to them immediately on the Deceased’s death. One of the contingencies to which the right was subject was satisfied during their lifetimes, but another contingency remained unsatisfied at the time of their respective deaths. That right has now passed to their respective legal personal representatives, and will in due course mature into a vested right in the clause 5(a)(i) fund.

121 Mr Murr submits that the foregoing analysis, dependent on the transmissibility of contingent remainders, is inapplicable. Rather, he submits, the gift to Demetrius and Iris lapsed because “a legacy to a named person at a definite future time lapses if the person dies before that time”.

122 Authority for the italicised proposition can be found in Perpetual Trustee Company (Ltd) v Scheiler (1948) 49 SR 169 at 172, Bruce v Charlton (1842) 13 Sim 65 at 68-70; 60 ER 26 at 27-28, Smell v Dee (1707) 2 Salk 415; 91 ER 360, Jarman, op cit p 1388, Fearne, Contingent Remainders and Executory Devises (10^th ed London 1844) p 552, and Theobald on Wills, 16^th ed par [43-28] p 603. However it is a question of construction whether the gift given to Demetrius and Iris by clause 5(a)(i) is a “legacy” to them “at a definite future time”. In my view it is not. First, it is not apt to call it a “legacy” at all – it is a contingent interest in remainder in a specific item of realty. Second, the passage in Fearne at 552 is said, at 553, to be qualified by an exception:

“… where the legacy is ingrafted by way of executory bequest to take effect on a contingent event defeating the first bequest, as when personal estate is bequeathed to A, and if he shall have no child who shall obtain the age of 21 years to B; the interest of B is contingent, as it depends for its vesting in him in possession on the event of A’s not having a son who attains 21; but this contingent interest is so far immediately vested in him in the right, as to be transmissible to his personal representatives, the interests of the first and second taker vesting in them at the same time. The consequence is, that, if the second legatee dies while the event defeating the first bequest is in suspense, and that event afterwards happens, the personal representatives of the first taker become entitled to the legacy.”

123 The present case is much closer to that exception than to the situation of the legacy payable at a definite future time. Third, it begs the question to say that the rights of Demetrius and Iris arise only “at a definite future time”. Rather;

(a) most importantly, and a matter that should be considered before any rules for construction of wills are invoked, the overall structure of the will shows an intention that the gift to Demetrius and Iris should not be contingent on them surviving Kitty,

(b) to the extent that legal rules of construction can be invoked, other authority considered elsewhere in this judgment shows that what they were given at the moment of the Deceased’s death was a present, transmissible right that would mature into an interest vested in possession when and if the contingencies occurred, and

op cit

“… the rule, which makes a legacy vested, when the gift and time of payment are distinct, applies to those cases only, where the time, on which the legacy is payable depends, for its happening, on an event which the law for this purpose considers to be certain and fixed, as the legatee’s obtaining a certain age; but, if it depends on any other event, as his marriage, the event is considered to be contingent; and the contingency is then held to be attached to the substance of the gift, and the gift is therefore held to fail, if the contingency do not happen."

“at a definite future time”

124 In fairness to the primary judge, I should mention that the hearing before him was conducted on an ex parte basis, with submissions only from Mr Meek. That situation came about after the judge had declined an application from the Appellant to vacate hearing dates that had been fixed, and the Appellant did not appear on the allotted dates. The judge did not have the same opportunity that this Court has had for detailed consideration of the legal analysis of clause 5(a)(i).

125 These reasons have benefited considerably from discussions with Young JA concerning an earlier draft.

126 The order made in the court below was that the plaintiff’s further amended summons be dismissed, with costs. For the reasons I have given, that order was right.

127 At the start of the hearing of the appeal the court made an order, by consent, permitting an amendment to the Notice of Appeal. The costs of making that amendment were reserved. As things have transpired, none of the grounds of appeal has succeeded. Thus, the costs that the Appellant pays should include any costs occasioned by the filing of the Amended Notice of Appeal.

128 I propose that this appeal be dismissed with costs, including any costs arising from the Amended Notice of Appeal.

129 MACFARLAN JA: I agree with Campbell JA.

: I agree with Campbell JA.

**********

16/09/2010 - Correction of Sir Edward Coke's title. - Paragraph(s) 43 & 48

Citations

Fairbairn v Varvaressos [2010] NSWCA 234

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Cases Citing This Decision

157

Farrelly v Phillips [2017] SASCFC 111

Cases Cited

7

Statutory Material Cited

6

Fairbairn v Varvaressos & Ors [2009] NSWSC 272

Tompkins v Simmons [1931] HCA 8

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CITATION:	Fairbairn v Varvaressos [2010] NSWCA 234 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	30 March 2010
JUDGMENT DATE:	15 September 2010
JUDGMENT OF:	Campbell JA at 1; Macfarlan JA at 129; Young JA at 130
DECISION:	Appeal dismissed with costs, including any costs arising from the Amended Notice of Appeal.
CATCHWORDS:	WILLS & ESTATES – construction of will – clause determining the manner in which testator’s house and contents would be dealt with – whether clause operated to cause remainder consequent on child K’s death to vest in interest in two other children, D and I, from the date of testator’s death, subject to defeasance if K died leaving one child above the age of 21 – ascertaining basic scheme of will as aid to construction – drawing assistance from the presumption against intestacy – vesting of a gift – whether Boraston’s case was misapplied – preference for construing gift as vested – distinction between vested estates in land and contingent remainders – authorities discussed - REAL PROPERTY – vested and future contingent interests – whether limitation amounts to vested remainder or contingent remainder – discussion of concepts of “vested”, “estate in land” and “contingent remainder” – relevance of Luddington v Kime – contingent remainders as property rights
LEGISLATION CITED:	Conveyancing Act 1919 Probate and Administration Act 1898 Statute of Uses 1535 Statute of Wills 1540 Succession Act 2006 Wills Probate and Administration Act 1898
CATEGORY:	Principal judgment
CASES CITED:	Boraston’s Case (1587) 3 Co Rep 19a; 76 ER 668 Bruce v Charlton (1842) 13 Sim 65; 60 ER 26 Coorey v George (27 February 1986, unreported) Duffield v Duffield (1829) 1 Dow & Clark 268; 6 ER 525 Fairbairn v Varvaressos (Palmer J, 13 May 2009, unreported) Fairbairn v Varvaressos [2009] NSWSC 272 Hammersley v Newton [2005] WASC 221; [2005] 30 WAR 568 Hickling v Fair [1899] AC 15 Hume v Perpetual Trustees Executors and Agency Company of Tasmania Limited (1939) 62 CLR 242 In Re Firth; Loveridge v Firth [1914] 2 Ch 386 In Re Sanders Trusts (1866) 1 Eq 675 In Re Skinner Deceased [1965] VR 660 Kenna v Conolly (1938) 60 CLR 583 Luddington v Kime (1697) 1 Ld Raym 203; 91 ER 1031 National Provincial Bank Ltd v Ainsworth [1965] AC 1175 Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 Perpetual Trustee Company (Ltd) v Scheiler (1948) 49 SR (NSW) 169 Re Byrne Deceased [1967] VR 96 Re Ellenborough [1903] 1 Ch 697 Re Shannon [1968] NZLR 852 Re Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Smell v Dee (1707) 2 Salk 415; 91 ER 360 Tailby v Official Receiver (1888) 13 AC 523 Taylor v Graham (1878) 3 AC 1287 Tompkins v Simmons (1931) 44 CLR 546 Wagstaff v Crosby (1846) 2 Coll 746; 63 ER 943
TEXTS CITED:	Baker, An Introduction to English Legal History, 4th ed OUP Fearne, Contingent Remainders and Executory Devises (10th ed London 1844) H T Tiffany, The Law of Real Property and Other Interests in Land (Chicago 1920) Halsbury’s Laws of England 2nd ed vol 34 Hargreaves & Helmore, An Introduction to the Principles of Land Law (New South Wales) (1963) Jarman on Wills, 8th ed Megarry & Wade, The Law of Real Property 7th ed 2008 Theobald on Wills, 16th ed par [43-28]
PARTIES:	Joanna Marie Fairbairn (Appellant) George and Yvette Varvaressos (First Respondents) Kyriakoola Varvaressos (Second Respondent)
FILE NUMBER(S):	CA 2009/298302
COUNSEL:	DH Murr SC; J Pentelow (Appellant) MK Meek SC; G Doherty (Respondents)
SOLICITORS:	Terence Stern, Bondi Junction (Appellant) Mervyn Finlay Thorburn & Marshall (Respondents)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	1198/95
LOWER COURT JUDICIAL OFFICER:	Palmer J
LOWER COURT DATE OF DECISION:	9 April 2009 and 13 May 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Fairbairn v Varvaressos [2009] NSWSC 272