Re Fox
[1996] QSC 72
•2 May 1996
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane O.S. No 687 of 1995
Before the Hon Justice White
[Re Fox]
IN THE MATTER of the ESTATE OF ELSIE EDITH FOX (Deceased)
- and -
IN THE MATTER of the Trusts of the Will of ELSIE EDITH FOX (Deceased)
- and -
IN THE MATTER of Order 64 of the Supreme Court Rules
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 02/05/1996
CATCHWORDS WILL - life tenants - after to blood relations - when class determined - joint tenants or tenants in common.
Counsel:Mr L Stephens for applicant/executor
Mr A Wilson for respondents
Solicitors:Duells for applicant/executor
VAJ Byrne & Co for respondents
Hearing date: 15 April 1996
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane O.S. No 687 of 1995
IN THE MATTER of the ESTATE OF ELSIE EDITH FOX (Deceased)
- and -
IN THE MATTER of the Trusts of the Will of ELSIE EDITH FOX (Deceased)
- and -
IN THE MATTER of Order 64 of the Supreme Court Rules
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 02/05/1996
The applicant is the sole executor and trustee appointed under the will of his late mother Elsie Edith Fox. He applies for a construction of the will and directions as to how the estate is to be distributed. The remaining asset in the testatrix's estate is a house property in Fortitude Valley in Brisbane. The executor also seeks orders that he be at liberty to sell the property and that he be entitled to purchase the property and set off its sale price against his entitlement as a beneficiary. The parties have agreed to a valuation of the property and to Mr Fox purchasing the property at that price.
The questions posed in the summons are:
Whether, on the true construction of the Will in the events that have happened, the gift and bequest by the Testatrix in her Will "I give to my daughter Doris Elsie Hambleton and Myrtle Irene Fox my property 31 Love Street, Valley, Brisbane, Subdivision 15 Portion 249, with contents equal after their their deaths to be divided between blood relations":
(a)comprised a gift of the whole of the estate or interest of the Testatrix in her property at 31 Love Street, Fortitude Valley and;
(b)operated:
(i)to make an absolute gift to the sisters Doris Elsie Hambleton and Myrtle Irene Fox; or
(ii)to create a valid trust for life for the said sisters with remainder for the blood relations of the Testatrix; or
(iii)to create a valid trust for life for the said sisters with remainder for the blood relations of the life tenants; or
(iv)to create some other and if so what trust.
(c)if it were held under (b) that the gift and bequest created a valid trust for the benefit of the blood relations of the Testatrix or of the life tenants, whether:
(i)such relations were to be ascertained as at the date of the Testatrix's death or as at the date of the death of the last surviving life tenant;
(ii)the relations of the Testatrix took as joint tenants or tenants in common;
(iii)the interest of the relations is taken per capita or per stirpes.
(d)benefited which blood relations;
(e)benefited which beneficiaries;
(f)resulted in what quantum of each such beneficiaries' interest in the trust property.
The testatrix died on 10 August 1964 aged 82 years. She was survived by her four children the applicant, William George Fox, and three daughters Doris Elsie Hambleton, Myrtle Irene Fox and Vera Bertha Harvey (formerly Mann). By her handwritten will dated 5 May 1953 the testatrix appointed her son to be her executor and trustee and provided as follows
I Give Devise and Bequeath
I devise and bequeath
unto my son William George Fox
my property at 17 Love Street Valley
known as the Palms Subdivision
14 portion 249 with contents and furniture.
I give to my daughter Doris Elsie
Hambleton and Myrtle Irene Fox
my property 31 Love Street Valley
Brisbane Subdivision 15 Portion
249, with contents equal
After their their [sic] deaths
to be divided between blood
relations, and I bequeath one hundred
£100 to my daughter Vera Bertha
Harvey.Furniture and contents
Hambleton
of my daughters room Doris Elsie
Foxas her own personal property
over
The Will Continued
This is my last Will & testerment
Dated this 5th day of May in the year
One Thousand Nine Hundred fifty 3 three 1953
The will has been attested in accordance with the provisions of the legislation.
The executor is now the only surviving child of the deceased. Vera Bertha Harvey died on 16 September 1974. At the date of her death she was married to her second husband Harold William Harvey. She was and is survived by her four children Joan Gloria Vera Newton aged 51 years, Geoffrey Richard Mann aged 44 years, Dawn Valma Jean Henley aged 40 years, Richard Ashley William Mann aged 38 years. Probate was granted on 14 October 1975 of her will dated 3 December 1973. Pursuant to her will Vera Harvey bequeathed her interest in her mother's property at 31 Love Street, Fortitude Valley to her two sons Geoffrey Richard Mann and Richard Ashley William Mann equally and the rest and residue of her estate was left to her four children equally. Geoffrey and Richard Mann are represented before me by Mr A Wilson of counsel. Dawn Matthais (Henley) appeared on her own behalf and swore an affidavit that she had spoken with her sister Gloria Joan Vera Newton who did not intend to appear or be represented at the hearing of the application. An affidavit of Mr Peter Little, solicitor, is to similar effect.
Myrtle Irene Fox died on 29 October 1976. Her death certificate indicates that she died unmarried and without issue at the age of 73 years. She died intestate and on 6 March 1995 the Public Trustee of Queensland advised that her estate passed to the following:
•William George Fox - lawful brother - 1/3 share
•Doris Elsie Hambleton - lawful sister - 1/3 share
•Issue of Vera Bertha Mann nee Fox
Geoffrey Richard Mann - lawful nephew - 1/12 share
Joan Gloria Vera Newton - lawful niece - 1/12 share
Richard Ashley William Mann - lawful nephew - 1/12 share
Dawn Valma June Henley - lawful niece - 1/12 share
Doris Elsie Hambleton died on 20 January 1991. She left no issue surviving her. She had one child who pre-deceased her and he had no issue. She was divorced in 1947. By her will dated 12 May 1986 she appointed the Public Trustee of Queensland to be her executor and trustee and after certain specific bequests she bequeathed the rest and residue of her estate to her brother William George Fox, the applicant.
The property referred to in the testatrix's will as "my property, 31 Love Street, Valley, Brisbane Subdivision 15 Portion 249" is the property described as 15 Love Street, Fortitude Valley after the numbers in the streets had been altered by the Brisbane City Council. After the death of the testatrix a transmission by death in favour of the life tenants was lodged at the Titles Office in the names of Doris Elsie Hambleton and Myrtle Irene Fox for their joint lives and for the life of the survivor of them. The executor placed the property in the name of the estate of his mother care of himself with the Brisbane City Council.
In the original application the executor sought an order that he be at liberty to pay his holding costs and expenses relating to the property out of the proceeds of sale. That part of the application was not proceeded with since it was accepted that he was entitled to such costs.
The parties agree that the effect of the words in the will in respect of the property at 31 Love Street are such as to give a life interest to Doris Elsie Hambleton and Myrtle Irene Fox and in its contents (excluding the furniture and contents of the room of Doris Elsie Hambleton) equally.
The issues which arise for consideration are•who are "blood relations";
•the time at which the blood relations are to be ascertained;
•how the members that class of relations are to take their interest.
Blood Relations
The parties agree that the relevant "blood relations" are those of the testatrix and not either or both of the life tenants. "Blood relations" means "relations" see Jarman on Wills (8th ed) p. 1621. In order to save a gift from invalidity through vagueness expressed to be in favour of a class which could be so wide as to be incapable of sensible ascertainment the court as a matter of established practice has confined the class of relations to those who would take under the Statute of Distribution had there been an intestacy, Wilson v. Duguid (1883) 24 Ch D 244 per Chitty J at p. 251; Re Gansloser's Will Trusts [1952] Ch 30 per Evershed MR at p. 37. The applicable statutes are the Succession Act 1867 ss. 29 to 32 or the Succession Act 1981 ss. 34 to 37, In Re Bridges, Chator v. Edwin [1938] 1 Ch 205.
Time for ascertainment of the class
The applicant maintains that the time for determining who comprises the class of relations is at the date of death of the testatrix on 10 August 1964. The respondents submit that on a proper construction of the will it is on the death of the last of the life tenants, Doris Elsie Hambleton, on 20 January 1991.
The general rule where there is a gift to the next of kin (including issue) of a person is that such a class is to be ascertained at the death of that person unless there be special words to show that that construction ought not apply, Gundry v. Pinniger (1851) 14 Beav 94; 51 ER 222; Re Gansloser's Will Trusts per Jenkins LJ at p. 44; Re Shield [1974] 1 Ch 373. Where the gift to next of kin is preceded by a life or other limited interest the same rule applies unless the construction demands some other time. The determination of the life or limited interest is the period not when the objects are to be ascertained but when the gift takes effect in possession, ibid. See also Jarman p. 1634 et seq. Counsel submit that the approach to be taken to the construction of this will depends upon a preference for the analysis in Gansloser or that in Shield. In Gansloser the testator disposed of the residue of his estate as follows:
"The remainder of my estate wherever situated ... I desire to be divided as follows, viz, one-half to my wife's relations one-half to my own relations but not till the death of my wife. Until then my wife shall have the unrestricted use of the income of my said estate. I advise my trustees ... to communicate with ..., solicitors, Oxford, who will and can help my trustees in ascertaining my wife's surviving relations and in the case of my relations the Banking Institution ... can be relied upon to supply all necessary information."
The testator was survived by his wife who lived a further 20 years. Neither the testator nor his wife had issue but both had several collateral relations. Vaisey J held that the class of persons to take being the next of kin of the testator and his wife were to be ascertained as at the death of the testator. In the case of the wife's relations they were to be ascertained on the hypothetical footing that she had died intestate at the date of his death. The three children of the wife's deceased brother appealed since under the decision they did not take a share. There was no appeal as to the half share of the estate given to the testator's own relations. The case also concerned whether the members of the class should take as joint tenants or tenants in common a matter which arises for consideration here. The Court of Appeal held that on the true construction of the will the date at which the class was to be ascertained was the date of the death of the testator. The appellant children contended that the appropriate dates for ascertaining the members of the class were as regards the testator's relations, his death, and as regards the wife's relations, her death. At p. 38 Evershed MR said
"The first point to note is that the testator "desires" his estate "to be divided as follows"; and then the two halves are designated. Prima facie it would, I think, be surprising that this testator intended the executors to set to work at once to find out the class of persons entitled to one-half, but to wait for a long time - 20 years - before they started to discover who was entitled to the other half. It seems to me that the language contemplates the ascertainment once and for all at his death of the persons who will constitute the classes ultimately entitled to his estate. That is supported by the next few words that follow: "... but not till the death of my wife." I think, if the idea had been that as regard part of the residue the persons to take were not to be and could not be discovered until the wife's death, that would be a very remarkable way of giving effect to the intention. The testator contemplated an immediate operation of discovering the classes, and he added that, although those are the classes to take, they are not to enjoy the property until the death of his wife and until that event she is to have the unrestricted use of the income."
Jenkins LJ considered the question of the date at which the wife's relations should be ascertained at p. 44. He said
"That rule [in Gundry v. Pinniger] comes to this: That, in as much as the proper time for the operation of the Statutes of Distribution in relation to the estate of any person is the death of that person, therefore, prima facie, a reference to next of kin according the statutes involves by implication the ascertainment of those persons at the proper time, namely, the death of the person whose next of kin according to the statutes are referred to. There is no doubt, I think, that this rule is, prima facie, of general application and should be followed unless there is something in the terms of the particular will under consideration which shows that it was not intended that the ascertainment of the next of kin of the propositus according to the statutes should take place as at the death of the propositus.
In this particular case, I agree with my Lord that the language and scheme of the will make it sufficiently plain that the testator's intention was that both his wife's relations and his own relations should be ascertained at one and the same time, namely, as at the testator's death. My reasons for that view are these. The testator's direction is: "I desire [the remainder of my estate] to be divided as follows, viz, one-half to my wife's relations one-half to my own relations". That, on the face of it, is a direction for an immediate division to be effected at the testator's death and to be effected once and for all. It is a division to be made as to one-half to his wife's relations and as to one-half to his own relations - that is to say, to the next of kin according to the statutes of two different people, the testator himself and his wife, who may or may not survive him. In view of this direction for immediate distribution, it seems to me that prima facie the proper conclusion must be that those persons, the objects of the distribution, are to be ascertained at one and the same time, namely, the testator's own death.
I think that that conclusion is reinforced by what follows. The testator continues: "... but not till the death of my wife". Those words were relied on in argument as equivalent to a gift of a life interest to the wife preceding the direction to divide, which should, it was said, be regarded as if it had been expressed as a gift in remainder expectant on the wife's death. In my view, however, there is for the present purpose a real distinction between a disposition in that form and the language actually used by this testator. The word "but" I regard as highly significant. The testator, having directed a division which, according to its terms is capable of being immediately carried out, goes on to say that this operation is to be postponed until a certain date: That he does by the words: "... but not till the death of my wife". Moreover, if the gift is of "one-half to my wife's relations" is to be construed as a gift "to my wife's next of kin according to the statutes ascertained as at her death, the words "... but not till the death of my wife," though not on that construction deprived of all meaning, would not as it seems to me to be totally appropriate."
The court concluded that on a proper construction of the will the rule in Gundry v. Pinniger, was excluded (the wife being the propositus as to her relations) with the result that the wife's relations and the testator's own relations were to be ascertained at one and the same time, namely, at the death of the testator.
Re Shield, also concerned a homemade will. There the testator made a bequest in the following terms:
"I give and bequeath unto my wife Mary Victoria Shield all my money and investments until her death. Then after that it will be shared to my relations also my wife's relations."
The testator died in 1972. He had married twice and had no issue of either marriage. The various interests brought a construction summons to ascertain, inter alia, whether the relations were to be ascertained as at the date of the death of testator or as at the date of the death of the first defendant, his widow. Pennycuick V-C, after stating the general rule considered the difficulty which arises in the case where the gift is to the relations of two different persons. He identified three possible alternatives as to the date or dates at which the class or classes of the relations were to be ascertained. The first was to ascertain the relations of the testator at his death and then ascertain the relations of the widow at her death. The second would ascertain the relations of both the testator and the widow at his death and the third would ascertain the relations of both at the death of the widow. The second approach commended itself to the Court of Appeal in Gansloser and in that case the relations of both took a vested interest in reversion on the life interest of the widow. Pennycuick V-C concluded that it was improbable that this "rather simple testator" should have contemplated the ascertainment of the whole class on his own death and that the members of the class should then take a vested reversionary interest. He found a critical difference between the words of the will under construction and the will in Gansloser. He thought that the third alternative namely, that the relations of both should be ascertained at the death of the widow seemed an altogether more probable intention to ascribe to the testator. He concluded
"It is, I think, much more likely that the testator would have contemplated an immediate distribution of his estate between the living than that he should have contemplated the vesting of reversionary interests."
He noted at p. 380 that in Gansloser the Court of Appeal and particularly Jenkins LJ, placed the greatest of reliance upon the order of the words in the gift.
"I am not much enamoured of distinctions based upon mere differences in the order of words, but there is no doubt that in In re Gansloser's Will Trusts [1952] Ch. 30 the Court of Appeal treated the order of the words as of critical importance, and it seems to me that with the order of words inverted I am not only entitled, but rather encouraged, by the decision in In re Gansloser's Will Trusts to reach the view which seems to me to be most likely to carry out the intention of the testator, namely, that the date for ascertainment of both classes is the death of the widow."
Gansloser and Shield were complicated by the need to ascertain the next of kin according to the Statute of Distribution of two different people. No such difficulty arises here. The employment of the word "after" following the life interests does not in my view take this will outside the usual rule that the next of kin of the propositus are to be ascertained at her death. It does no more than identify when the gift is to vest in possession. A reference to two cases referred to in Jarman at p. 1635 suggests that similar adverbs do not qualify the time for ascertainment of the class. In Harrington v. Harte (1784) 1 Cox 131; 29 ER 1094 a fund was given after the death of the daughter of the testatrix to such persons as the daughter would appoint and in default of appointment to "such persons as would then by virtue of the Statute of Distributions be entitled to the testator's personal estate in case she had died intestate". The daughter made no appointment. The following appears in the report
"Another point was made by the pleadings, viz. Whether this fund should go to such persons as were next of kin to the testatrix at the time of her death, or such as were so at the death of Jane Champernowne [the daughter], which turned on the construction of the word "then"; but defendant's counsel gave up the point, and admitted that the word "then" was to be taken as an adverb of relation, and not of time, and it must therefore go to such persons as were next of kin to testatrix at the time of her death."
In the later case of Bullock v. Downes (1860) 9 HLC 1; 11 ER 627 after making specific provision for different members of his family the testator gave the residue of his estate to the respondent and two other persons, both of whom had died, upon trust to pay the interest of the residuary property to his son for life and after his son to his son's widow, if any, an annuity as the son should appoint and to the son's children and
"in case there shall not be any child or children of my said son Robert Downes, who, under the trusts aforesaid, should obtain a vested interest in the said trust moneys, etc., then do and shall stand and be possessed of the said trust moneys, etc., and the interest, dividends and annual produce thereof, in trust for, and to pay, assign, and transfer the same moneys, etc. unto such persons or persons of the blood or next of kin of me the said Andrew Downes as would, by virtue of the Statute of Distribution of intestates' effects, have become and been then entitled thereto in case I had died intestate".
The Lord Chancellor, Lord Campbell said at p. 12 [631]
"Generally speaking, where there is a bequest to one for life, and after his decease to the testator's next of kin, the next of kin who are to take are the persons who answer that description at the death of the testator, and not those who answer that description at the death of the first taker. Gifts to a class following a bequest of the same property for life vest immediately upon the death of the testator. Nor does it make any difference that the person to whom such previous life interest was given is also a member of the class to take on his death."
Lords Brougham and Cranworth held to similar effect at pp. 16-18 [633]. Lord Wensleydale said at p. 24 [636]
"The question is strictly not what the testator meant, but what is the meaning of the word; for the use of the expression "the intention of the testator", is apt to lead the mind to speculate as to what the testator meant to do, instead of enquiring what he has done. And farther, the words used must be read in their ordinary and grammatical sense, unless the construction would lead to some obvious absurdity or inconsistency repugnant to the declared intentions of the testator, to be collected from the whole instrument.
It is much more useful to attend closely to these rules, than to look out for guides and decisions on the construction of words in similar instruments. It seldom happens that the decisions on the meaning of words in one instrument are of any assistance in the construction of others, the context in each case, and the circumstances admissible in evidence vary so much as to give a different meaning to the expressions used. ...
Applying these rules, the persons who would by the Statute of Distribution of Intestates' Effects have been entitled to them in case he died intestate, are those who filled the character of wife or next of kin at the time of the testator's death. The testator has provided that those (except the widow), if there should be no child of his son Robert who should obtain a vested interest, should receive the residue of his estate; but he has not said that those who would have been entitled if the testator had then died, that is died at the time of the event happening, should be entitled ... It has long been held that courts should try to construe every legacy so as to make it vested at the earliest possible period consistent with the words of the bequest, and not to be contingent unless the words require it; therefore we ought to hold that this legacy to the next of kin should be construed as giving the residue to the son and daughters, subject to the son's life estate."
There is nothing in my view about the use of the word "after" to displace the usual principle of construction that the class of relations by reference to the statute is to be ascertained on the death of the propositus, namely, the testatrix.
How should the class take
The testatrix provided that after the death of the last life tenant the property was "to be divided between blood relations". By virtue of s. 31 of the Succession Act, 1867 the class consists of the children of the testatrix as at her date of death. The question then is ought they take as directed by the statute or as joint tenants of the gift. If the latter construction is preferred then the applicant takes the whole estate by survivorship. In Eagles v. Le Breton [1873] 42 LJ Ch 362 (the Law Reports report in [1873] 15 Eq 148 is extremely brief) the will provided that
"At the death of my sisters Anne Peppin and Jane Coucher the residue of my property is to pass to my relatives in America."
It was held that the class was to be ascertained at the date of death of the testator and that "relatives" meant the persons who would take under the Statutes of Distribution. It was argued that whenever there is either an express or an implied reference to those statutes the next of kin take as tenants in common and that only in those gifts without reference to the statutes would the class take as joint tenants. Romilly MR rejected that argument accepting that when there was an express reference to the Statutes of Distribution in a testamentary instrument the relations would take as tenants in common in the shares in which they would have taken on an intestacy but when there was no express reference the case was different and the ordinary rule applied, namely, that where a gift was to a class without words of severance the members of the class took as joint tenants. The Court of Appeal in Gansloser concluded that it ought to follow Eagles v. Le Breton it having stood for nearly 80 years and not being incorrect in principle. Jenkins LJ at p. 46 said:
"That decision [Eagles v. Le Breton] commends itself to me as being in accordance with commonsense and in accordance with the basic principles of the construction of wills. The rule, whether it be called a rule of construction or a rule of convenience, under which the word "relations" is held to be limited to the next of kin of the propositus according to the statutes is an artificial rule which the court in its benevolence has adopted to prevent a testator's disposition failing from uncertainty. That was considered sufficient justification for imputing a wholly conventional and artificial intention to the testator by limiting his meaning of the word "relations", or the meaning he might attach to the word "relations", to the next of kin according to the statutes. The alternative of uncertainty was the justification for the procedure. But, that procedure having been gone through and the problem of uncertainty thus resolved, I cannot, speaking for myself see what justification there can be for going on to impute to the testator a further entirely artificial intention that the fund or subject matter of the gift should be divided amongst the next of kin according to the statutes in the shares and manner provided for in the statutes. That is a matter with which uncertainty has nothing to do; and, speaking for myself, in a case of this sort, where there is a gift to "relations", and the reference to the Statute of Distribution is imported simply and solely by force of the benevolent rule of the court, I think there is no sufficient justification for applying it beyond the point necessary to avoid uncertainty. Once that is done, for my part, I would hold the rule to be exhausted, and that the gift, limited by force of the rule to persons answering the description of the next of kin according to the statutes, should take effect like any other gift; that is to say, if, as here, it is a gift without words of severance, it should be treated as operating to create a joint tenancy."
Mr Wilson for the respondents submits that by using the word "divided" the testatrix has implied a tenancy in common. In Shield Pennycuick V-C at p. 380 construed the words "then after that it will be shared to my relations also my wife's relations" as constituting a single class of relations and held that the word "shared" imported a distribution per capita. In Robertson v. Fraser [1871] 6 Ch App 696 Lord Hatherley LC said at p. 699 when construing a codicil to a will
"I cannot doubt, having regard to the authorities respecting the effect of such words as "amongst" and "respectively", that anything which in the slightest degree indicates an intention to divide the property must be held to abrogate the idea of a joint tenancy, and to create a tenancy in common."
See also Booth v. Alington (1858) 27 LJ Ch 117.
There is little in the will to assist in ascertaining how the members of the class, the issue, are to take. The testatrix seemed concerned to make some provision for each of her four children. An inclination away from survivorship, that is, joint tenancy, can only be deduced from the word "divided" but I think that is sufficient to displace the usual rule. Accordingly, the children of the testatrix each took a vested interest in the remainder of the estate as tenants in common in equal shares at the date of her death.
The applicant is thus entitled to a quarter share as one of a class of four members. He is also entitled to the quarter share of his sister Doris Elsie Hambleton and her one-third share in Myrtle Irene Fox's quarter interest pursuant to her will and one-third of the quarter share of his sister Myrtle Irene Fox pursuant to her intestacy. That interest may be represented fractionally as
1/4 (his) + 1/4 (Doris's) + 1/12 (Doris's 1/3 of Myrtle's 1/4) + 1/12 (1/3 of Myrtle's 1/4)
= 2/3.
Pursuant to Vera Bertha Harvey's will her two sons, Geoffrey Richard Mann and Richard Ashley Mann, are each entitled to one-half of her one-quarter share. Together with their sisters Joan Gloria Vera Newton and Dawn Valma June Henley they are each entitled to a twelfth share in the one-quarter interest of Myrtle Irene Fox under her intestacy. Thus Geoffrey and Richard Mann's shares (each) may be represented fractionally as
1/8 (1/2 of mother's 1/4) + 1/48 (1/12 of Myrtle's 1/4)
= 7/48
Joan Gloria Vera Newton and Dawn Valma June Henley are each entitled to 1/12 of Myrtle's 1/4 interest, i.e., 1/48.
The questions should be answered as follows:•1(a) Yes
•1(b)(i) No
•1(b)(ii) Yes
•1(b)(iii) No
•1(b)(iv) unnecessary to answer.
•1(c)(i) such relations to be ascertained as at the date of the testatrix's death;
•1(c)(ii) the relations of the testatrix took as tenants in common;
•1(c)(iii) the interest of the relations is taken per capita, that is, as tenants in common in equal shares;
•1(d) benefited William George Fox, Myrtle Irene Fox, Doris Elsie Hambleton and Vera Bertha Harvey;
•1(e) benefited William George Fox and the children of Vera Bertha Harvey, namely, Geoffrey Richard Mann, Gloria Joan Vera Newton, Richard Ashley William Mann and Dawn Valma June Henley;
•1(f) • gave to William George Fox a two-thirds interest (32/48);
•gave to George Geoffrey Richard Mann a seven forty-eighth interest;
•gave to Richard Ashley Mann a seven forty-eighth interest;
•gave to Gloria Joan Vera Newton a one forty-eighth interest;
•gave to Dawn Valma June Henley a one forty-eighth interest.
It is further ordered by consent that William George Fox be at liberty to sell the property at 15 Love Street, Fortitude Valley by private treaty and that he be permitted to purchase the property at a price not less than $180,000 and set off against the sale price his net entitlement as a beneficiary and to pay to the estate the balance thereof.
I further order that the costs of and incidental to this application of the applicant and the respondents be taxed and paid on an indemnity basis from the estate.
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