Harris v King - [1936] HCA 55

HARRIS AND ANOTHER

APPELLANTS; DEFENDANTS,

KING AND OTHERS

RESPONDENTS.

PLAINTIFFS AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF WillConstruction-Rule against perpetuities-Remoteness-Gift over on compound

event-Splitting gift over.

A testator, who died in 1880, by his will devised certain land to trustees, subject to an annuity, upon trust to pay the rents to the testator's daughter for life and from and after her death, in case she should leave a husband and one or more children, upon trust in favour of the husband and children, but if she should leave a husband and no issue, or the issue should fail during the and McTiernan lifetime of the husband, then upon trust to pay the rents to the husband during his life. The testator directed that after the death of his daughter

56 CLR 178

and her husband (if any) his trustees should stand seised of the land upon trust to sell it and to pay and divide the ultimate surplus of the proceeds of such sale equally between and amongst all the children of his daughter who should be living at the time of the decease of the survivor of them the daughter and the husband (if any) and who should have attained the age of twenty-one years or married, and the issue of such of her children as should have died leaving issue should take their parents' share in equal proportions. The daughter survived the testator by many years and died a widow, leaving children who had attained full age.

Held that the gift over in favour of the testator's grandchildren was not conditioned on the happening of either of two distinct events, but was a single gift over on one condition involving two events not separated by the testator, one of which, namely, the death of the daughter's husband, would not necessarily have happened within the period prescribed by the rule against perpetuities, and that therefore the gift over was void.

Decision of the Supreme Court of New South Wales (Nicholas J.) affirmed.

APPEAL from the Supreme Court of New South Wales.

By his will dated 20th November 1873 the testator, Reuben Uther, who died on 10th July 1880, after making certain other devises and bequests, devised the land and premises situate at and known as number 220 Pitt Street, Sydney, to trustees upon trust in favour of his daughter Wilhelmina, her husband and children, and with and subject to the like powers, provisions and directions and appropriations after the death of his daughter and her husband in all respects as were expressed with respect to certain land and premises thereon devised to his daughter Emma. A similar devise was made to his daughter Florence in respect of land and premises thereon situate at and known as number 218 Pitt Street. The devise to Emma was of certain land situate at number 222 Pitt Street; it was devised to trustees, subject to an annuity, upon trust to pay the rents to Emma for life, and…

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 Harris v King

Details

AGLC: Harris v King [1936] HCA 55
Case: [1936] HCA 55
Decision Date: 26 November 1936

CaseChat Overview and Summary

The case of *Harris v King* concerned an appeal to the High Court of Australia from the Supreme Court of New South Wales. The dispute arose from the interpretation of a testator's will, specifically concerning the validity of future trusts established for the sale of certain properties and the distribution of the proceeds. The testator died in 1880, and the will, made in 1873, established trusts for his daughters and their issue, with a complex gift-over provision. The Supreme Court had previously declared these future trusts void for infringing the rule against perpetuities.

The central legal issue before the High Court was whether the gift-over provision in the testator's will, which directed the sale of property and distribution of proceeds after the death of his daughter and her husband, was void for remoteness. This required the court to determine if the provision was conditioned on a single compound event that might occur outside the perpetuity period, or if it could be construed as a gift over on distinct, alternative events, one of which might fall within the perpetuity period. The court also considered whether the wording of the will sufficiently separated potential contingencies to allow for a "gift over on a contingency with a double aspect."

The High Court, affirming the decision of the Supreme Court, held that the gift-over provision was void for remoteness. The court reasoned that the testator had not separated the contingencies into distinct and alternative events. Instead, the provision referred to a single compound event: the death of the daughter and her husband. The possibility that the daughter might marry a husband not born at the testator's death, who could then survive her by more than twenty-one years, meant that the event upon which the gift-over was conditioned might occur outside the perpetuity period. The court emphasised that it would not split or separate compound contingencies in a will to save a gift from the rule against perpetuities; the testator must have expressly separated them. The words "if any" in relation to the husband were not considered sufficient to create separate, alternative contingencies.

Consequently, the High Court dismissed the appeal, upholding the Supreme Court's order that the trusts for sale and distribution of proceeds were invalid due to infringing the rule against perpetuities. The costs of the appeal were to be dealt with in the same manner as the costs in the Supreme Court proceedings.

Orders