Perpetual Trustees v Salvation Army (Tasmania) Property Trust

[1987] TASSC 107

Serial No B37/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:   Perpetual Trustees v Salvation Army (Tasmania) Property Trust [1987] TASSC 107; B37/1987

PARTIES:  PERPETUAL TRUSTEES AND NATIONAL EXECUTORS
  OF TASMANIA LIMITED
  WEBSTER, Richard John
  v
  SALVATION ARMY (TASMANIA) PROPERTY TRUST
  WEBSTER, Albert Godfrey

FILE NO/S:  M176/1986
DELIVERED ON:            4 September 1987
JUDGMENT OF:              Cosgrove J

Judgment Number:  B37/1987
Number of paragraphs:  7

Serial No B37/1987
List "B"
File No M176/1986

PERPETUAL TRUSTEES AND NATIONAL EXECUTORS OF TASMANIA LIMITED AND RICHARD JOHN WEBSTER v. THE SALVATION ARMY (TASMANIA) PROPERTY TRUST AND ALBERT GODFREY WEBSTER

REASONS FOR JUDGMENT  COSGROVE J

4 September 1987

1. By his will the testator Francis William Webster, appointed the Perpetual Trustees and National Executors of Tasmania Limited and Richard John Webster as his executors and trustees, bequeathed to the Salvation Army (Tasmania) Property Trust, Howrah Corps of 11 Silwood Avenue, Howrah in Tasmania, all his clothing free of all duties and charges and devised and bequeathed unto his trustees all the rest and residue of his estate both real and personal upon trust to call in and convert the same into money, to pay his just debts, funeral and testamentary expenses and all probate estate and succession duties and to stand possessed of the balance of the proceeds upon trust:

"to divide the same into four equal parts and to distribute the same as follows:

(a)As to one of such equal parts for the TASMANIAN SPASTICS ASSOCIATION of 60 Central Avenue Moonah in Tasmania;

(b)As to one of such equal parts for the ROYAL GUIDE DOGS FOR THE BLIND ASSOCIATION OF TASMANIA Corner of Argyle and Lewis Streets North Hobart in Tasmania;

(c)As to one of such equal parts for the RETARDED CHILDREN'S WELFARE ASSOCIATION OF TASMANIA State Office Administration and Fund Raising of 281 Elizabeth Street Hobart in Tasmania; and

(d)As to the remaining such equal part for the BARRINGTON CHILDREN'S HOME of 21 Tower Road New Town in Tasmania."

1. In reasons which I gave on two separate prior occasions, I held that the gift set out in (d) lapsed because of the closing of the Barrington Children's Home during the life time of the testator; that the gift was not capable of administration cy–pres; and must pass as on an intestacy.

1. I then settled a letter to be written by the trustees to the other three named beneficiaries inviting them to argue, if they so wished, as to the order which ought to be made as to costs, namely whether it should come out of residue generally, or whether it should come out of a fourth part notionally set aside for the Barrington Children's Home.

1. Mr Pitt was instructed by the named charitable beneficiaries. He submitted that the impact of the order for costs should fall only upon the Barrington Children's Home portion of the residual estate. He cited a number of authorities to me, as did all counsel. I have carefully considered those authorities but as one might expect each of them tends to turn on its own facts, although references are made to general rules.

1. I am satisfied that one relevant general rule is that set out in Jarman on Wills 8th edn vol3, p1893 and which reads as follows:

"The cost of an administration suit, of proceedings to ascertain the construction of the testator's will, even on a point concerning only a specific fund, so far as the proceedings relate to the personal estate are testamentary expenses."

The Annual Practice 1966 p1999/299 contains this paragraph:

"Construction Summons. – The general rule as to costs is laid down in Re Buckton [1907] 2 Ch D 406 ... [in that case Kekowich J reviewed the practice relating to costs in testamentary cases, and reaffirmed the general rule that in cases such as this the costs of all parties should be taxed as between solicitor and client and paid out of the estate]."

The Annual Practice goes on:

"Testamentary expenses are the expenses of a testator's executors in establishing construing and executing his will ...

'Construing' includes the cost of all parties in an executor's construction summons."

1. It follows that the will itself directs the costs of this application to be ascertained and deducted from the general fund before distribution is made.

1. Apart from the specific provision in the will as to testamentary expenses, the general rule as to costs is set out in Tudor 6th edn p478. It is that wherever the proceedings are rendered necessary by the nature of the deceased's will the costs are thrown upon the general estate (see Re Mulcahy [1969] VR 545 at 555). This result appears to me to accord with common sense and with the obvious intention of the testator. The order of the court therefore is that the costs of all parties be taxed as between solicitor and client and paid out of the estate prior to the ascertainment of the fund for distribution. There is one exception. The Attorney–General very properly does not seek costs. In case I have overlooked it, I certify for counsel.