Hedger v Kiel - [1949] HCA 56

KIEL AND OTHERS

RESPONDENTS.

PLAINTIFFS AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Will-Power of appointment-Power to appoint to " such person or persons at such

ages or times and in such manner" as donee thinks fit-General or limited power of appointment-No express appointment by donee-General testamentary SYDNEY,

disposition of her property by donee-' Persons"-Quaere, inclusion of non- Nov. 16;

natural persons-Wills, Probate and Administration Act 1898-1947 (N.S.W.) (No. 13 of 1898-No. 41 of 1947), S. 23 (2), (3).

A testator, by his will, gave a trust fund to his trusteés upon trust for such person or persons at such ages or times and in such manner as my wife

by will appoints." Held, by Latham C.J. and McTiernan J. (Williams J. dissenting), that the words " at such ages or times" were not a limitation of the class of objects of the power but a specification of the mode in which it might be exercised; that, accordingly, the power was a power to appoint in any manner the donee might think proper to which S. 23 (2) and (3) of the Wills, Probate and Adminis- tration Act 1898-1947 (N.S.W.) applied and that it had been effectively exercised by a general residuary devise and bequest by the donee.

Decision of the Supreme Court of New South Wales (Sugerman J.): Kiel v. Berghofer, (1949) 49 S.R. (N.S.W.) 363 66 W.N. 206, by majority,

APPEAL from the Supreme Court of New South Wales.

Frank Owen Hedger died on 6th July 1939, and on 3rd October 1939 the Supreme Court of New South Wales, in its Probate Juris- diction, granted probate of his will to his widow, Martha Maud

80 CLR 107

Hedger, and Clarence Reginald Cecil Kiel and Thomas Gavan Douglas Marshall the executrix and executors and trustees named therein.

By his will the testator, after providing for certain specific and pecuniary legacies, gave the residue of his estate to his trustees upon trust for sale and conversion and upon trust to stand possessed of the residuary trust moneys as therein defined and the investments for the time being representing the same upon trust to pay the income thereof, subject to an annuity to his adopted daughter, Phyllis Martha Hedger, to his wife during her lifetime. He directed that from and after the death of his wife his trustees were to stand possessed of the trust funds upon trust to divide the same into three equal parts or shares, and, in clause 14 of his will, he directed his trustees to stand possessed of one of such third parts or shares "Upon Trust for such person or persons at such ages or times and in such manner as my wife the said Martha Maud Hedger by will appoints And in default of and subject to any such appoint- ment Upon Trust to pay one-half thereof to the said Phyllis Martha Hedger and to apply the remaining half thereof SO that the same go to augment…

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 Hedger v Kiel

Details

AGLC: Hedger v Kiel [1949] HCA 56
Case: [1949] HCA 56
Decision Date: 6 December 1949

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose from the interpretation of a power of appointment granted by the will of Frank Owen Hedger. The testator's will established a trust fund and, in clause 14, granted his wife, Martha Maud Hedger, a testamentary power to appoint one-third of this fund "for such person or persons at such ages or times and in such manner as my wife by will appoints." Martha Maud Hedger died after her husband, leaving a will that made a general disposition of all her property. The executors of her will argued that this general disposition effectively exercised the power of appointment under section 23 of the *Wills, Probate and Administration Act 1898-1947* (N.S.W.). The appellant, Phyllis Martha Hedger, contended that the power of appointment was limited and therefore not effectively exercised by the general disposition in Martha Maud Hedger's will.

The central legal issue before the High Court was whether the power of appointment granted by clause 14 of Frank Owen Hedger's will was a "power to appoint in any manner he may think proper" within the meaning of section 23(3) of the *Wills, Probate and Administration Act 1898-1947* (N.S.W.). This determination hinged on whether the words "at such ages or times" imposed a limitation on the class of objects of the power, thereby rendering it a special or limited power, or whether they merely specified the mode of exercise, leaving the power general. The court also considered whether the term "person or persons" in the power of appointment could include non-natural persons such as corporations or institutions.

Latham C.J. and McTiernan J. held that the words "at such ages or times" did not limit the class of objects but rather specified the manner in which the power could be exercised. They reasoned that an appointment could be valid even without reference to age or time, and that the word "times" could potentially include appointments to artificial persons. Consequently, they concluded that the power was sufficiently general to fall within section 23(3) of the Act, and thus Martha Maud Hedger's general testamentary disposition effectively exercised it. Williams J., dissenting, found that the inclusion of "ages or times" indicated an intention to limit the objects to natural persons, making the power a limited one and therefore not exercisable under section 23(3) by a general devise.

By majority decision, the High Court dismissed the appeal. The court ordered that the costs of all parties be paid out of the estate of the testator, Frank Owen Hedger, with the costs of the trustees to be taxed as between solicitor and client.

Orders