Mocatta v Mocatta

This appeal concerned the construction of a will made in 1858 by Henry Osborne. The testator directed his trustees to pay the annual rents and profits of certain land during the lives of his children (with specific exceptions) and the survivor of them, to and amongst his living sons and daughters, and "the executors or administrators of such of them as shall happen to die". The critical phrase in dispute was "the representatives of any deceased son or daughter to receive the part or share to which such son or daughter if living would be entitled." The appellant contended that "representatives" meant persons other than executors or administrators, such as children or next of kin.

The legal issue before the High Court was the interpretation of the word "representatives" in the context of the testator's will. Specifically, the court had to determine whether the testator intended "representatives" to refer to the legal personal representatives (executors or administrators) of a deceased child, or to a broader class of beneficiaries such as children or next of kin.

The High Court, affirming the decision of the Supreme Court of New South Wales, held that the word "representatives" in the will meant the executors or administrators of any deceased child. The Chief Justice stated that the general legal rule is that "representatives" signifies executors or administrators unless there is a contrary context. In this case, no such contrary context was found within the will; indeed, the surrounding language, particularly the correlative words "pay" and "receive," supported the primary legal meaning. Isaacs and Rich JJ. agreed with this reasoning.

The appeal was dismissed with costs. The difference between party and party costs and solicitor and client costs was to be retained out of the shares of the daughters, excluding Lucy Throsby Manning.