Marks v Trustees Executors and Agency Co Ltd - [1948] HCA 38

TRUSTEES EXECUTORS AND AGENCY

RESPONDENTS.

COMPANY LIMITED AND OTHERS

PLAINTIFFS AND DEFENDANTS, Will-Construction-" Vested Vested in interest-Vested in possession.

A testator by his will left real property on trusts as to the income in favour trustees were to convert the property and divide the resultant fund into shares, which they were to hold on trusts in favour of the children's children per stirpes. As to one of these shares, the first trust was for the child or children of the testator's son, L. B., who, being sons or a son, should attain the age of twenty-one, or, being daughters, should attain that age or marry.

A second trust, relating to this as well as to the other shares in the corpus, was directed to the event of the death of a grandchild of the testator under McTiernan and twenty-one leaving lawful issue, in which event the issue were to take the share to which the grandchild would have been entitled. A third trust consisted in a direction that, " if all the children of any of " the testator's four children " shall die before the share hereinbefore respectively mentioned shall have become vested in him or her and without leaving lawful issue," the trustees were to hold the share for the children and the issue of any deceased child of the other or others of the testator's four children in equal shares. The son, L. B., predeceased his sister, E. L., who was the last survivor of the testator's four children. L. B. left only one child, a son, C. B., who died-also before E. L.-without issue after having attained the age of twenty-one.

Held that, in the third trust, the word " vested " meant vested in interest, with the result that the share directed to be held on trust for L. B. vested absolutely and indefeasibly in C.B.

Semble The word " vesting means, prima facie, vesting in interest. Young v. Robertson, (1862) 4 Macq. 314, distinguished. Decision of the Supreme Court of Victoria (Fullagar J.) affirmed.

77 CLR 498

APPEAL from the Supreme Court of Victoria.

Lawrence Benjamin by his will gave certain real property in the city of Melbourne to his trustees in trust to dispose of the income in specified " parts or shares" in favour of his four children, Jane Marks, Alice Henochsberg, Elizabeth Leveson and Lawrence Abraham Benjamin (who subsequently changed his surname to Bentley, by which name he is hereinafter referred to). In each case the trust was to pay the income of the share (two fifths in the case of Jane Marks and one fifth in the case of each of the other three) to the child for life and, after the death of any child, to that child's children in equal shares until the death of the testator's last surviving child. If any of the four children died without leaving issue capable of taking, the share was to be held in trust for the other or…

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: [1948] HCA 38
Decision Date: 6 December 1948

CaseChat Overview and Summary

The case of *Marks v Trustees Executors and Agency Co Ltd* concerned the construction of a will and the interpretation of the word "vested" within its provisions. The testator's will established trusts for his grandchildren, with specific provisions for the distribution of a share of the corpus of the estate. The dispute arose regarding the third trust provision, which stipulated that if all the children of one of the testator's four children died before their share became "vested" and without leaving lawful issue, that share would be held for the benefit of the children and issue of the testator's other children. The specific grandchild in question, Colin Bentley, had attained the age of twenty-one but died without issue before the final distribution of the estate.

The central legal issue before the High Court of Australia was the meaning of the word "vested" in the context of the third trust provision. The appellant argued that "vested" meant "vested in possession," implying that Colin Bentley's interest would be divested upon his death without issue, even though he had attained the age of twenty-one. Conversely, the respondents contended that "vested" meant "vested in interest," meaning Colin Bentley's share had become absolutely and indefeasibly his upon reaching the age of twenty-one, irrespective of his subsequent death without issue.

The High Court, affirming the decision of the Supreme Court of Victoria, held that in the third trust provision, the word "vested" meant "vested in interest." The Court reasoned that this interpretation provided a coherent and consistent operation of the various trusts within the will, avoiding capricious results that would arise from interpreting "vested" as "vested in possession." The Court distinguished the present case from *Young v. Robertson*, where "vested" was held to mean "vested in possession" due to the specific context of that will. The Court concluded that Colin Bentley's share had vested absolutely and indefeasibly in him upon attaining the age of twenty-one, and therefore, the third trust provision did not operate to divest his interest. The appeal was dismissed, with the appellant ordered to pay the respondents' costs.

Orders