Lewis v O'Loughlin

[1971] HCA 53

HIGH COURT OF AUSTRALIA

Barwick C.J., Menzies and Gibbs JJ.

LEWIS v. O'LOUGHLIN

(1971) 125 CLR 320

12 November 1971

Wills

Wills—Construction—Home-made will—Bequest of "the total sum of my monetary investments"—Whether bequest includes interest of testatrix in unadministered estate of &hich she was sole beneficiary.

Decisions

November 12.
The following written judgments were delivered:
BARWICK C.J. The testatrix, who died on 23rd July 1968, at the age of sixty-eight, made her last will on 18th August 1967. Her father had three daughters, of whom the testatrix was at the date of the death of her niece, Phoebe, the sole survivor. One of her sisters had married Herbert Matthews who died in 1966. They had one daughter, Phoebe Dawn Matthews who died on 15th July 1967 intestate. Thus at the date of her will, the testatrix, according niece, Phoebe. She was also a life tenant in a trust fund set up Matthews, at the date of her death, was entitled to the whole of the estate of her grandfather Charles George Thomas Whittle. The assets of that estate at the date of the death of Phoebe Matthews comprised Commonwealth Inscribed Stock, shares in co-operative and public companies, a loan of money secured by mortgage of land and money in a bank account. Phoebe Dawn Matthews was also entitled at the date of her death to the whole of the estate of her father, Herbert Matthews. That estate at that time comprised a sum of $13,499.38 held by the Public Trustee, two parcels of land at Crafers in the State of South Australia, a motor car and certain furniture and effects valued at $454.40 which had been taken by the testatrix into her possession before her niece's death and sold, the proceeds being in the testatrix's hands at the time of her death. (at p323)

2. At the date of the will the testatrix herself held money in several banks, had money invested in bonds and debentures, shares in public ompanies and units in a South Australia Flexible Trust. At the date of her death, apart from her interest in the estate of Phoebe Dawn Matthews and through that estate in the estate of Charles George Thomas Whittle, the testatrix had the said money in banks, the said investments and in addition was entitled to - (i) accrued salary, holiday pay and long service leave in respect of her employment with an Adelaide firm; (ii) a sum due to her by the Commissioner of Taxation in respect of Group Tax and provisional tax; (iii) an amount of income in respect of her life estate in the said fund accrued but unpaid. She also had a house, furniture and effects, furs, jewellery and a motor car. (at p323)

3. The testatrix drew her own will which was typewritten in the following terms, the underlining All expressions printed in capital letters were underlined in the will. being that of the testatrix.

"THIS IS THE LAST WILL AND TESTAMENT of me MELVA RENE KING of 29 COLLINGROVE AVENUE BROADVIEW in the State of South Australia WIDOW. I REVOKE all Former Wills and Codicils made by me and declare this to be my LAST WILL. I APPOINT MESSRS. M.F. O'LOUGHLIN ROBERTSON AND CO BARRISTERS and SOLICITORS 6th Floor City Mutual Life Insurance Building 118 KING WILLIAM STREET ADELAIDE in the State of South Australia to be the EXECUTORS AND TRUSTEES of this MY WILL and in any and every CODICIL hereto save where such interpretation is precluded by the context include the TRUSTEE or TRUSTEES for the time being hereof. I GIVE AND BEQUEATH the TOTAL SUM OF MY MONETARY INVESTMENTS AND MONIES IN BANKS ON TRUST to MY TRUSTEES to realise and DIVIDE into TWO EQUAL PARTS and pay as follows:- ONE (A) ONE HALF of the proceeds to my niece DAPHNE SHIRLEY RAE HAINES of BUCKLEBOO WEST COAST in the said State MARRIED WOMAN Should she pre-decease me then in equal shares between her TWO CHILDREN.

(B) ONE HALF to be EQUALLY divided between my lifelong helpers and friends MELVA BERYL LEWIS and her daughter JANICE HELEN LEWIS both of 98 GRANGE ROAD WELLING in the said State.

Should there to the whole or any part of the REAL ESTATE situated at HILL STREET CRAFERS in the State of South Australia see REGISTER BOOK VOLUME 2345 FOLIO 1 and REGISTER BOOK VOLUME 2344 FOLIO 200 still unsold at the date of my death this is to be sold and the PROCEEDS divided according to the paragraph herein marked 'ONE'. I GIVE AND BEQUEATH my House property situate at 29 COLLINGROVE AVENUE BROADVIEW in the said State and all the contents thereof including my personal possessions in EQUAL SHARES to my friends MELVA BERYL LEWIS and JANICE HELEN LEWIS of 98 Grange Road Welling South Australia as a going concern for their own personal use absolutely or according to their wishes and convenience. Should either MELVA BERYL LEWIS or JANICE HELEN LEWIS predecease me then the REAL ESTATE at 29 Collingrove Avenue, Broadview in the said State to become the property of the surviving beneficiary. IN WITNESS WHEREOF I have hereunto set my hand to this and the preceding page on the EIGHTEENTH day of AUGUST in the Year of our Lord ONE THOUSAND NINE-HUNDRED AND SIXTYSEVEN." (at p324)

4. A grant of administration of the estate of the testatrix was made on 3rd March 1968 to M.F. O'Loughlin one of the executors named in the said will. Upon an originating summons for the determination without administration of a number of questions arising in the administration of the estate of the testatrix, the Supreme Court of South Australia was asked amongst other questions, in substance whether there was an intestacy in respect of the interest of the testatrix in the estates of her niece Phoebe and her father Charles G.T. Whittle, the units held in the South Australia Flexible Trust and the items I have listed (i)-(iii) above. (at p324)

5. The learned primary judge held that there was an intestacy in respect of those items except the units held in the South Australia Flexible Trust and the accrued but unpaid income of the life estate. He rejected both the relevant arguments advanced by counsel for Melva Beryl Lewis and Janice Helen Keay (formerly Lewis), namely that the investments and moneys on hand in the estate of Phoebe Dawn Matthews fell within the testatrix's description in her will of "the total sum of my monetary investments and monies in Banks", or alternatively that that bequest operated as a residuary bequest of personalty. His Honour disposed of the first submission in the following passage which I take from his reasons for answering the question in the originating summons in the way in which he did (1971) SASR 147, at p 154 :

"It will be convenient here to consider also the question whether the passage 'the total sum of my monetary investments and monies in banks' extends to property answering the general description embodied in that passage, but forming part of the assets, other than real estate, in Phoebe's as yet unadministered estate that, in due course of administration, would have passed into the testatrix's hands as beneficiary by virtue of Phoebe's intestacy. It seems to me that the weight of authority is plainly against the conclusion that the passage does so extend. The phrase 'my monetary investments and monies in banks' (the emphasis is mine) denotes personal property of the testatrix over which she had control: see, for example, In re Kidman (dec'd.); Kidman v. Clover (1953) SASR 28 where Napier C.J. discusses the authorities. The testatrix's interest in Phoebe's estate is a derivative interest dependent upon the due administration of Phoebe's estate, and it would have been a misuse of words for the testatrix to describe investments forming part of that estate as 'my monetary investments', even though she may have confidently expected that those investments would, in course of time, come under her control. I should also add that the word 'investments' is, in my view, wholly inappropriate to describe a right in personam, dependent in due administration."

His Honour fortified this view by reference to the advice of their Lordships of the Privy Council in Commissioner of Stamp Duties (Q.) v. Livingston (1965) AC 694; (1964) 112 CLR 12 . After quoting from that advice, his Honour said (1971) SASR, at p 158 :

"It appears to me to follow inexorably from the principles expounded in Livingston's Case (1965) AC 694; (1964) 112 CLR 12 that, at the moment of her death, the testatrix had no estate, right or interest, legal or equitable, in the individual items of property comprising Phoebe's estate, because it still belonged to the administrator for the purpose of administration. It further follows, in my opinion, that it is not possible to give effect to any language used by the testatrix that, expressly or by necessary implication, treats items of property forming part of the unadministered assets of Phoebe's estate as if they had become severally and independently vested in the testatrix, and were hers to deal with by will." (at p325)

6. Melva Beryl Lewis and Janice Helen Keay appeal to this Court against so much of the primary judge's decision as holds that the investments and moneys at bank, assets of the estate of Phoebe Dawn Matthews (including those derived from the estate of Charles G.T. Whittle) were not comprised in the testatrix's bequest of "the total sum of my monetary investments and monies in bank". Daphne Shirley Rae Haines is the sole next-of-kin of the testatrix, being the daughter of a sister of the testatrix who died in 1924. She was duly appointed to represent the next-of-kin upon the hearing of the originating summons and appeared by counsel to support the answers given by the primary judge. (at p326)

7. Counsel for the appellants submitted that the expression "the total sum of my monetary investments and monies in banks" as used by the testatrix in a will drawn by herself and in the circumstances in which she was then placed were apt to embrace the investments and moneys which were included in the estate of Phoebe Dawn Matthews and of which at the date of the will the testatrix was the sole beneficiary. He also repeated but did not seriously press the alternative argument that that bequest constituted a residuary gift of personalty. I may say at once that I agree with the primary judge that that bequest cannot be so regarded. (at p326)

8. The problem in the appeal is to determine on a fair construction what the testatrix meant by her relevant expression in the will. Such a question is unlikely to be resolved by resort to authority, however much attention should be paid to the opinions expressed by distinguished judges when construing other wills. The language used in this will is that of the testatrix herself: it is not the language of a person trained in the law. It is language used with at least a layman's understanding of the situation in which the testatrix then stood. Her niece had died about one month before she made the will. She was, and she clearly knew she was, the sole next-of-kin of her niece. She evidently knew that her niece was the sole beneficiary under her father Herbert Matthews' will. The only real property in his estate was the property in Hill Street, Crafers which is the subject of the clause in the testatrix's will. The reference there to that property shows that the testatrix knew that it was part of that estate to which she had become entitled on her niece's death. She probably knew that it consisted of more than one parcel, for she refers to the whole or part of that property. Indeed, there is evidence in the papers that she had once lived in the house on the property. It is to my mind a fair inference from the whole of the material put before the primary judge that the testatrix knew at the time she made her will that this was the only real property in her brother-in-law's estate. Although she did not describe it in her will as her property, she evidently understood that she was then in a position to determine by her will what should be done with it if she had not disposed of it in her lifetime. She became the administrator of her niece's estate by grant of letters by the Supreme Court of South Australia in March of 1968. I think it reasonable to suppose that between her niece's death and the date of her will, a period during which she ascertained that her niece had died intestate, she can be taken to have learnt that besides the Crafers land, the estate of her brother-in-law consisted almost entirely of investments and moneys in banks and that her father's estate to which her niece had become entitled likewise consisted of investments and moneys in banks. (at p327)

9. It seems to me therefore that the will should be approached as the will of a person who knew that she was the only next-of-kin of her niece; that Daphne Shirley Rae Haines was her only next-of-kin; that she was solely entitled to the land, investments and moneys in banks in her niece Phoebe Dawn Matthews' estate and that beside a house she had herself investments and moneys in banks, furniture and personal effects. She was at that time employed. It is not remarkable that she did not realize that if she died whilst in employment there would be money due to her for undrawn leave of various kinds and for prepaid tax. For these items quite clearly she made no provision in her will. It is evident, I think, that reading the will as an entirety against the background of her then known circumstances, the testatrix intended by the expressions used in her will to dispose of all that she then possessed. It is clear enough that she did not cover by her dispositions all the eventualities which might occur; e.g. the possibility of both Melva Beryl Lewis and Janice Helen Lewis predeceasing her. However the question is not whether she provided for all contingencies but whether she made some provision for all the property to which she was then entitled. She evidently had formed a view as to whom she wished to benefit and was aware of her relationship to Daphne Shirley Rae Haines. I find it difficult to conceive that, knowing as she must have done of her entitlement to her niece's property, and that Daphne Shirley Rae Haines, if living at her death would be her next-of-kin, she did intend to leave out of the provisions of her will the most substantial part of what she was able to dispose. She was at the time about sixty-seven years of age. We know nothing of her state of health or manner of living. We do not know whether she had made any will on an earlier occasion. But, whether she had done so or not, it is significant, in my opinion, that she made this will one month after her niece's death. (at p327)

10. Having regard to the life estate she had, and to the investments in her own name at the date of her will, it seems to me to be a fair inference that she would in all probability have allowed the investments coming to her through her niece's estate to remain in the same form as they then were, possibly not taking any immediate action, if indeed any action at all, to place them in her own name. Being the sole administratrix of her niece's estate there would be no real need for any such change, certainly none for any early change. She is evidently aware that the will will operate as on the date of her death and accordingly provides for the contingency that in the meantime she may not have converted the land at Crafers into money. If by that time she had done so, she appears to have contemplated that the proceeds of such a sale if not spent meantime, would be held in investments or in banks and pass under her gift of monetary investments and moneys in banks. The provisions of the will as to her real estate and her personalty, other than her investments and moneys in banks, point strongly in my opinion to the conclusion that she made her will when she did in order to make provision for the disposition on her death of all to which she considered herself then to be entitled. (at p328)

11. The question now is whether the expressions she used in her will were both intended and apt in her circumstances to effect such a disposition. The question is not in my opinion whether she had at that time a specific legal or equitable estate or interest in the assets which comprised the estate of her niece. The question is whether the expression "the total sum of my monetary investments and monies in banks" was intended by the testatrix to include the investments and moneys in banks in the estate of her niece to which she had become solely entitled and if so, was it apt to do so. She dealt with the land in that estate as an asset whose destination she could then determine. Had she died the next day, there could be little doubt that the provisions of the will would have been operative though at its date she had no estate or interest in those parcels of land. The will would so operate because the land was aptly described and, by taking formal steps, her executors or trustees could carry out its terms. Thus, if the description of the investments and moneys in banks is sufficient to include the investments and moneys in banks to come to her in due course, the terms of the will in my opinion, will be effective as to those investments and moneys in banks, notwithstanding the fact that at the date of the will the testatrix had no interest in those specific assets of her niece's estate. The learning to be found in the line of cases beginning with Lord Sudeley v. Attorney-General (1897) AC 11 including McCaughey v. Commissioner of Stamp Duties (1945) 46 SR (NSW) 192; 62 WN 230 , and ending with Commissioner of Stamp Duties (Q.) v. Livingston (1965) AC 694; (1964) 112 CLR 12 has, in my opinion, no bearing on the construction of the words of the testatrix or upon their operation; nothing said or decided in any of these cases precludes effect being given to her words if they are intended and apt to include such investments or moneys in banks. Nor in my opinion does the decision or reasoning in In re Kidman (dec'd.); Kidman v. Clover (1953) SASR 28 touch the matter in hand in this case. That case turned on the circumstances that the words to be applied were "all my shares" in named companies. It was held, if I may say so, quite correctly that that description did not embrace an interest in a residuary estate which included shares in the named companies. (at p329)

12. Much was said in argument as to the limiting effect of the possessive "my" in the expression of the will under consideration. But whatever the legal situation as to her interests in the specific assets of her niece's estate, was the testatrix not fully entitled to consider them as hers? They certainly did not belong in a popular sense to anybody else. Between her and the legal possession of all of them stood nothing but formality, or at any rate, so she was quite entitled to think. They were in layman's language "hers". Is not the possessive "my" used by her apt to include them in the circumstances? Why should it be read as intended by the testatrix to exclude all to which she had recently become entitled, particularly in the light of the full expression "The total sum of my monetary investments etc."? If so intended, was not the personal possessive quite apt in the circumstances? (at p329)

13. I have formed the opinion that the testatrix intended by her use of these words to include all the investments and moneys in banks which she considered hers as the result of her niece's death. I find her words apt to do so. To the layman the description of the investments and moneys in banks to which on her niece's death she became solely entitled could understandably be described as hers: I think though with some hesitation that the description of her disposition covered in the circumstances the money in the hands of the Public Trustee. (at p329)

14. Consequently, effect can be given to the testatrix's disposition: there was no intestacy as to the proceeds of her niece's estate. I would allow the appeal in so far as the same related to the interest of the testatrix in the estates of her niece Phoebe and through her niece in the estate of her father Charles G.T. Whittle. (at p329)

MENZIES J. This is another case of difficulty in construing a home-made will. (at p330)

2. The critical question is whether the bequest of "the total sum of my monetary investments and moneys in banks" carried to the legatees not only such assets in the name of the testatrix at the time of her death, but also assets falling within the description of "monetary investments and moneys in banks" in the estate of a niece of the deceased who had died intestate. This niece, Phoebe Matthews, died shortly before the will of the testatrix was made. The testatrix was, to her knowledge, at the date of her will, the sole beneficiary in the estate of Phoebe Matthews. After her will the testatrix became administratrix of that estate. (at p330)

3. Had the testatrix used the phrase "to which I am entitled" after the words "monetary investments and moneys in banks", instead of the word "my" before those words, I do not think there would have been much doubt but that the assets in question would have been covered by her bequest, notwithstanding that, in law, her rights were those of the sole beneficiary upon an intestacy. Upon the whole I have reached the conclusion that, by the word "my" in the bequest under consideration, the testatrix did mean to include assets falling within the description to which she was entitled. I do so, notwithstanding that elsewhere in the will the testatrix does use the word "my" to describe land to which she had the title, but does not use the word "my" to describe land in the estate of Phoebe Matthews in relation to which the testatrix made provision in her will. Discrepancies of this sort have less significance in a home-made will than one drawn by a lawyer. The case is not an easy one, but I am inclined to think that the learned trial judge did take too narrow a view of the bequest based upon a lawyer's appreciation of the strict rights of a person who is a beneficiary in an unadministered estate. The sort of distinction that caused such differences of judicial opinion in Commissioner of Stamp Duties (Q.) v. Livingston (1962) 107 CLR 411; Affirmed (1965) AC 694; (1964) 112 CLR 12 , were entirely beyond the consideration of the testatrix who was, I think, attempting to dispose of what was hers, although she did apparently omit some minor assets, e.g. taxation refunds and payments in lieu of leave. (at p330)

4. This is a case in which I do place some reliance upon the presumption against intestacy in relation to what can fairly be described as a major part of her estate. This presumption does not, of course, warrant giving the words used by a testatrix an unnatural meaning, but the extended meaning which I attribute to the word "my" in her will is natural enough. The difficulty is that the word is, in the circumstances, ambiguous. I am, I think, entitled to rely upon the presumption against intestacy in resolving that ambiguity. (at p331)

5. Accordingly, as to the assets in question, I consider that the appeal should be allowed. (at p331)

GIBBS J. I have had the advantage of reading the reasons prepared by the Chief Justice and those prepared by my brother Menzies. I agree that for the reasons my brethren have given the words "the total sum of my monetary investments and monies in banks" in the context of the will of the testatrix and in the circumstances of the case included the investments and moneys in banks in the estate of Phoebe Dawn Matthews, deceased, to which the testatrix had become entitled as sole next of kin. I therefore agree that the appeal should be allowed so far as it relates to the interest of the testatrix in the estate of Phoebe Dawn Matthews. (at p331)

Orders

Appeal allowed.

Answer given by the Supreme Court to Question 1(a) be set aside and in lieu thereof the said question be answered:
The testatrix has made an effective specific bequest of the assets specified in paragraphs (i), (ii), (iii), and (except for the first and second items of $274.11 and $308.00 respectively which pass as on an intestacy) (iv).

Answer given by the Supreme Court to Question 1(c) asked by the originating summons be set aside and in lieu thereof the said question be answered:
Yes. The whole of the testatrix's interest in that estate fell within the bequest of the total sum of my monetary investments and moneys in banks.

Costs of all parties of the appeal to be paid out of the estate of the deceased other than the house property No. 29 Collingrove Avenue, Broadview, its contents and the personal possessions of the deceased; those of the respondents as between solicitor and client.