it arose pursuant to the dealings between McDonald Scales Ltd. and Driver and, on this point, it is of no consequence to say that the latter had no authority to contract on behalf of the appellant for McDonald Scales Ltd. did not purport to contract on behalf of the appellant though it would make little difference in the result if they had. What that company did was to pay Driver for the subject goods in accordance with the terms arranged between them and if they had no authority on behalf of the appellant to deal in this fashion on its account that circumstance cannot affect the respondents. It may be that McDonald Scales Ltd. exceeded the instructions given to it but this would leave its own contractual obligations with Driver untouched and would affect only the respec- tive rights of the appellant and McDonald Scales Ltd. as between themselves. The arrangements pursuant to which the payment was made also provided for delivery to McDonald Scales Ltd. the payment was to be a payment against documents for goods sold. In these circumstances I fail to see how it can be said that the goods the subject of the appellant's claim were delivered by or on behalf of the respondents in performance or purported perfor- mance of their contractual obligations. Accordingly I cannot assent to the argument that the arrangements made in England were intended merely as a convenient method of carrying out a contract which had been locally made; on the contrary it is probable-though this in itself is not a determining factor-that, whatever was the legal effect of the local dealings, the appellant believed that direct contractual relations had been established with Driver and that the subsequent dealings between it and McDonald Scales Ltd. were conducted on this basis. But whatever the appellant or McDonald Scales Ltd. believed about the matter,
I am satisfied that in the events which happened the delivery was made pursuant to arrangements made, in the absence of the respon- dents, between McDonald Scales Ltd. and Driver and that those arrangements prescribed the manner of such delivery and obliged McDonald Scales Ltd. to pay Driver for the goods either against invoices or upon delivery. That being SO the evidence does not support the breaches of contract alleged.
For the reasons given I am of the opinion that the appeal should be dismissed and I find it unnecessary to consider any of the other arguments advanced on behalf of the respondents.
Appeal dismissed with costs. Solicitors for the appellants, Morgan, Fyffe &Mulkearns. Solicitor for the respondent, John F. Carroll.
NEW SOUTH WALES. Will-Construction-Residuary estate-Gift for division equally amongst children
of named relatives in equal shares absolutely-Per capita or per stirpes. SYDNEY,
Where there is a gift of residue to the children of named persons in equal…
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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AGLC
King v Perpetual Trustee Co Ltd [1955] HCA 70
Case
[1955] HCA 70
Decision Date
CaseChat Overview and Summary
The appeal concerned the construction of a will and the distribution of a testator's residuary estate. The testator's will directed his trustee to divide his residuary estate "equally amongst the children of my sister B the children of my brother P the children of my niece I and the children of my nephew J in equal shares absolutely". The primary issue was whether the beneficiaries were to take the estate per capita, meaning each child received an equal share regardless of their parent, or per stirpes, meaning the estate was divided into branches based on the testator's relatives, with each branch receiving an equal share and then being subdivided among the children of that relative.
The court was required to determine the correct method of distribution of the residuary estate, specifically whether the beneficiaries, who were the children of four named relatives of the testator, were to take the estate per capita or per stirpes. This involved interpreting the language of the will and applying established rules of construction regarding gifts to classes of beneficiaries.
The High Court held that the residuary estate was to be distributed per capita. The court applied the settled rule of construction that where a will directs a division of residue equally amongst the children of named persons, the beneficiaries take per capita in the absence of a clear indication to the contrary. The court found no sufficient indication within the language of the will to displace this rule. The repetition of the direction for equal division was considered to be emphasis rather than an indication of a double division (first by stocks, then by individuals within each stock). The court rejected arguments that differences in generation or the structure of prior gifts in the will were sufficient to imply a per stirpes distribution, emphasizing that the testator's intention must be ascertained from the words of the will itself. The appeal was allowed, and the decision of the Supreme Court of New South Wales was reversed.