Parremore v Gangell

HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan and Owen JJ.

PARREMORE v. GANGELL

(1962) 107 CLR 118

5 April 1962

Will

Will—Construction—Devise by testator of farming properties to two sons as tenants in common for life and their widows during "their respective lives" and after "their respective deaths" on trust for the children of the two sons—Whether per stirpes or per capita distribution to children.

Decisions

April 5.
The following written judgments were delivered:-
DIXON C.J. This appeal depends upon the meaning and operation of a will made on 23rd May 1912. It is the last will of William Gangell of Tea Tree, Tasmania, farmer, who died on 9th June 1912. At the time of his death he was seised of two pieces of land upon which he carried on his farming. One consisted of a farm of 1100 acres at Tea Tree; he called it "Cremorne". The other consisted of 100 acres some distance away at Richmond. He left him surviving a widow, three sons and five daughters. Of the three sons one, George Edward Gangell, had married and had children but not long after his father's death, namely on 21st November 1913, he died. He left a widow and four children; the widow and one child have since died. Another son, John James Gangell, married after his father's death. There was only one child of the marriage and he died in childhood on 6th March 1918. John James Gangell's wife died on 3rd January 1942. He did not remarry, and he died on 14th September 1958. The third son of the testator was named William James Gangell. He survived his father and died on 3rd July 1952 but he does not come into the consideration of this case, for the testator, as his will declared, made no provision for William James "he having been provided for by me in my lifetime". (at p121)

2. On the death on 14th September 1958 of John James Gangell it became necessary to make finally a distribution of what remained in the hands of the trustees representing the farm "Cremorne" and the 100 acres. The question who at that date took raised an immediate difficulty. To explain why that was so, it is necessary to turn to the directions contained in the provisions of the will. In the earlier part of his will the testator made bequests to his wife and daughters. He also bequeathed to his two sons George Edward and John James absolutely in equal shares the live and dead stock and farming implements upon his estate known as "Cremorne" and upon his 100 acres at Richmond. Then after certain other dispositions which do not affect the matter, he gave and devised his farm known as "Cremorne" and his one hundred acres to his trustees to the use that his wife should receive a rent charge of 100 pounds a year and be permitted to reside in the homestead on his farm "Cremorne" and that his son John James (who…