trust to divide it equally between such of the children of A. and of B., "as shall survive me and live to attain the age of 21 years on their attaining such age." MELBOURNE,

Held by Barton and Isaacs JJ. (Griffith C.J. dissenting) that the primary meaning of "survive" is "outlive," that there was nothing in the context of Griffith C.J.,

the will to control that meaning and, therefore, that the children born during the lifetime of the testator and who were living at his death were alone entitled to share in the residue.

Per Griffith C.J. and Isaacs J.-The **ule of convenience laid down in Andrews v. Partington, 3 Bro. C.C., 401, is to be applied only when it is necessary, that is, when the fund in question becomes actually divisible.

Decision of the Supreme Court of Tasmania (McIntyre J.) affirmed.

14 CLR 87

CONSOLIDATED APPEALS from the Supreme Court of Tasmania.

An originating summons was taken out in the Supreme Court of Tasmania by Marie Louise Steinbach and Charles Horace Steinbach for the determination of the question (inter ulia) what person or persons were entitled to the residuary estate of Charles Eagle Knight, deceased, bequeathed by his will and codicil.

The material portions of the will and the material facts are stated in the judgments hereunder.

The summons was heard before McIntyre J., who held that the children of Josiah Charles Eagle Knight and of Elizabeth Mary Steinbach, who were appointed residuary legatees under the will, took as a class and that that class became fixed upon the death of the testator and included any child who at that date was en ventre sa mère. He also held that each of the children forming the class was entitled on attaining the age of 21 years to call for payment of his or her share of the residuary estate (other than such portion of it as was or ought to have been set aside to meet certain legacies directed to be set apart for the benefit of Edith Knight, Elizabeth Hose and Eagle Leonard Knight during their respective lifetimes), and to call for payment of his or her share of the sums SO set apart or which ought to have been SO set apart as and when such sums fell into the residuary estate by the death of the life tenants respectively.

From this decision two appeals to the High Court were brought which by order of Barton J. were consolidated.

Nicholas, for the appellants in the first appeal and for two of the respondents in the second appeal, being children born after the death of the testator 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 Knight v Knight

Details

AGLC: Knight v Knight [1912] HCA 36
Case: [1912] HCA 36
Decision Date: 31 May 1912

CaseChat Overview and Summary

The case of *Knight v Knight* involved an appeal to the High Court of Australia from a decision of the Supreme Court of Tasmania concerning the interpretation of a testator's will. The central dispute revolved around the entitlement to the residuary estate, specifically whether children born after the testator's death but before the age of 21 were included in the class of beneficiaries. The appellants were children of the testator's nephew, Josiah Charles Eagle Knight, who were born either after the testator's death but before the eldest child of the testator's niece attained 21, or after that milestone.

The primary legal issue before the High Court was the interpretation of the phrase "such of the children of A and of B, as shall survive me and live to attain the age of 21 years". Specifically, the court had to determine the meaning of "survive me" in this context and whether it referred only to children alive at the testator's death, or encompassed all children born during the testator's lifetime and those born subsequently who reached the age of 21. A secondary issue, dependent on the first, was the application of the "rule of convenience" in closing the class of beneficiaries.

The High Court, in a majority decision by Barton and Isaacs JJ. (with Griffith C.J. dissenting), held that the primary meaning of "survive" is "outlive," and that the will's context did not displace this meaning. Consequently, only children who were alive at the testator's death were considered to have survived him. Griffith C.J., dissenting, argued that the testator intended to benefit all children of his niece and nephew who attained 21, regardless of their birth date relative to his own death, finding support for this interpretation in various provisions of the will. Both Griffith C.J. and Isaacs J. also commented on the rule of convenience, stating it should only be applied when necessary, particularly when a fund becomes actually divisible. The decision of the Supreme Court of Tasmania was affirmed.

Orders