Marks v Trustees Executors and Agency Co Ltd

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.