A will and codicil being all one testament, the language of the codicil may be used to interpret that of the will if the latter is open to two constructions.

By a will property was given to A. with a gift over in the event of his dying without leaving a wife or children, and the question was whether the contingency was limited to the death of A. before that of the testator, or whether it referred to the death of A. at any time. A codicil to the will contained language which showed that the testator thought he had given an estate to A. which would be absolute if A. survived him.

Held, that A., having survived the testator, took an absolute estate. Judgment of àBeckett J. reversed.

APPEAL from the Supreme Court of Victoria (àBeckett J.)

Allan Jenkins, who died on 9th August 1904, left a will, dated 17th July 1900, and a codicil thereto, dated 7th January 1903. The material parts of the will and codicil are set out in the judgment hereunder. The testator left him surviving his wife, Jessie Jenkins, and seven children--viz., two sons, Donald Halley Jenkins and Dugald McKellar Jenkins, and five daughters, Annie Sinclair Jenkins, Kate Maud Jenkins, Nellie Cope Jenkins,

3 CLR 800

Agnes Mann Stewart, and Jessie Allan Hill. All the childr

were of age at the testator's death, and all were unmarri except the last-mentioned two daughters.

An originating summons was taken out by the executors a trustees asking for the determination of the following questio (inter alia) :-

1. Having regard to the provisions of the said will and codi contained, what estate or interest in addition to a bequest £100 does the defendant Donald Halley Jenkins take in t estate of the testator, the said Allan Jenkins deceased

2. Having regard to the said provisions, and in particular the following words in the said will contained, that is to say " And I direct that the one-fourth share of my said son Dona Halley Jenkins shall revert to my living son or daughters or the children in equal shares in the event of my said son Dons Halley Jenkins dying without leaving a wife or lawful issue

(a) Is it the duty of the executors of the said testator WI respect to the said fourth share to transfer and make over same to the defendant Donald Halley Jenkins, and if 80 when

(b) And if not, how should the said fourth share be dealt WI by the said executors, and how should the income derived fro the said one-fourth share be applied ?

5 and 6, were similar questions as to Dugald McKellar Jenki is Beckett J., by whom the summons was heard, held that shares of…

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 Jenkins v Stewart

Details

AGLC: Jenkins v Stewart [1906] HCA 35
Case: [1906] HCA 35
Decision Date: 8 June 1906

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria regarding the construction of a will and codicil. The testator, Allan Jenkins, had left property to his sons, Donald Halley Jenkins and Dugald McKellar Jenkins, with a gift over to other beneficiaries if they died without leaving a wife or lawful issue. The executors sought to determine the nature of the interests taken by Donald and Dugald. The Supreme Court held that their interests were subject to the executory gift over, meaning the executors were to retain control of the shares. Donald and Dugald appealed this decision.

The central legal issue before the High Court was whether the contingency for the gift over, namely the death of Donald or Dugald without leaving a wife or lawful issue, referred only to their death during the testator's lifetime, or whether it applied to their death at any time. This determination would establish whether the sons took an absolute estate upon surviving the testator, or a vested estate liable to be divested. A secondary issue was whether the codicil could be used to interpret the potentially ambiguous language of the will.

The High Court, in allowing the appeal, reasoned that while the literal grammatical construction of the will suggested the contingency applied to death at any time, the context of the testamentary documents indicated a different intention. The Court noted that the testator directed the sale and division of his property, suggesting an intention for immediate vesting. Crucially, the codicil contained language referring to the sons' shares as those they would have been entitled to "if they had survived me or died leaving lawful issue," which the Court interpreted as the testator's understanding that survival of the testator was the primary condition for vesting. Applying the principle that a codicil can be used to interpret an ambiguous will, the Court concluded that the testator intended both Donald and Dugald to take absolute, vested estates upon surviving him.

Consequently, the High Court varied the order of the Supreme Court. It held that Donald took a vested interest in one-fourth of the estate (excluding specific bequests) plus a £100 legacy, payable immediately after the sale of the property. Dugald was found to take a vested interest in one-sixth of the remaining residue, also payable immediately after sale, subject to the provision for an annuity to the testator's wife.

Orders