In the Will of - [1992] TASSC 119

Serial No B42/1992
List “B”

CITATION: In the Will of Samuel Gray [1992] TASSC 119; B42/1992

PARTIES: IN THE WILL OF SAMUEL JOHN GRAY

PUBLIC TRUSTEE
v
GRAY, Albert Henry & Ors

TITLE OF COURT: SUPREME COURT OF TASMANIA

JURISDICTION: ORIGINAL

FILE NO: M209/1992

DELIVERED: 7 October 1992

HEARING DATES: 25 September 1992

JUDGMENT OF: Cox J

CATCHWORDS:

Construction of will—Gift to children payable at the rate of £250 per annum—Gift over to issue of balance unpaid at death of child surviving testator—Whether void for repugnancy or in derogation of primary gift—Rule in Sanders v Vautier (1841) 4 Beav 115; 49 ER 282 held not applicable.

REPRESENTATION:

Counsel:

Plaintiff:  T Williams
Defendant Children:        S Quartermain
Defendant Grandchildren
living or as yet unborn:    S Carey

Solicitors:

Plaintiff:  Public Trustee
Defendant Children:        Simmons Wolfhagen
Defendant Grandchildren
living or as yet unborn:    Crown Solicitor

Judgment Category Classification:

Court Computer Code:

Judgment ID Number: B42/1992

Number of paragraphs: 20

Serial No B42/1992

List "B"

File No M209/1992

IN THE WILL OF SAMUEL JOHN GRAY
PUBLIC TRUSTEE v ALBERT HENRY GRAY & ORS

REASONS FOR JUDGMENT COX J

7 October 1992

Construction summons concerning the interpretation of the following will:

"THIS IS THE LAST WILL of me SAMUEL JOHN GRAY of Number 49 Pottery Road New Town in Tasmania retired builder
1        I APPOINT THE PUBLIC TRUSTEE OF TASMANIA (hereinafter called my trustee') to be sole executor and trustee hereof
2        AFTER PAYMENT of my debts funeral and testamentary expenses and all duties payable in respect of my estate I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal to my wife EDITH AGNES GRAY absolutely if she shall survive me
3        IF my said wife shall not survive me I GIVE DEVISE AND BEQUEATH the whole of my said estate to my trustee UPON TRUST to sell call in and convert the same into money and after payment of my debts funeral and testamentary expenses and all duties payable in respect of my estate in exoneration of every gift hereby made to stand possessed of the net proceeds to be derived from such sale calling in and conversion UPON TRUST for such of my children LAWRENCE SAMUEL GRAY ALBERT HENRY GRAY ISABEL SWEET HEATHER DOLLIVAN and ADOLPHUS JOHN GRAY as shall be living at my death and if more than one in equal shares except that the respective shares of the said LAWRENCE SAMUEL GRAY and the said ALBERT HENRY GRAY shall each be Three hundred pounds more than the shares of my other said children AND I DIRECT my trustee to pay the respective shares of my said children to each of them at the rate of Two hundred and fifty pounds per annum payable half yearly until the said shares shall be fully paid AND I DECLARE that if any of my said children shall die in my lifetime leaving issue who shall survive me such issue shall take and if more than one equally…

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.

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Details

Case: [1992] TASSC 119
Decision Date: 7 October 1992

CaseChat Overview and Summary

The case involves a construction summons regarding the interpretation of the will of Samuel John Gray. The Public Trustee sought to determine the rights of the children and grandchildren of the deceased to the estate, which was valued at approximately $127,542.08. The central issue was the interpretation of the will's provisions regarding the payment of shares to the testator's children at a rate of £250 per annum and the subsequent gift over to the issue of any child who died before their share was fully paid. The Court had to determine whether the gift over was repugnant to the primary gift or if it was a permissible derogation of the initial gift.

The Court found that the gift over was not repugnant to the primary gift but was a permissible derogation. The will provided that the children were to receive their shares at the rate of £250 per annum, but if any child died before their share was fully paid, their issue would take the unpaid portion. The Court held that this provision did not infringe upon the rule against perpetuities and that the children and their issue were entitled to the entire income of their respective funds in addition to the capital advances of £250 per annum. The Court concluded that the gift over was a clear and unequivocal limitation of the primary gift, and therefore, the children and their issue were entitled to the entire corpus upon the death of the child, subject to the annual payments.

The Court's reasoning was based on the principle that where there is an absolute gift followed by a gift over, the gift over is void unless it is a derogation from the original gift. The Court found that the gift over in the will was a derogation of the primary gift, as it limited the extent of the earlier trust by emphasizing that the beneficiary gains no entitlement to an unpaid portion until they survive to the date on which any such portion is payable. The Court also found that the word "issue" in the will referred only to children and not to all issue of any degree. The Court held that the children and their issue were entitled to the entire income of their respective funds in addition to the capital advances of £250 per annum.

The Court's decision provided clarity on the interpretation of the will and the rights of the children and grandchildren of the deceased. The Court's judgment was based on the principle that the will must be construed according to the language used, and it was not for the Court to speculate what the testator might have done had he realized the effect of inflation on the nominal value of his estate. The Court's decision provided a clear interpretation of the will and ensured that the children and their issue were entitled to the entire corpus upon the death of the child, subject to the annual payments.

Orders