Smidmore v Smidmore - [1905] HCA 58

FRANCIS PAUL SMIDMORE

BLANCHE ROSE LENNON SMIDMORE,

JOSEPH SARSFIELD SMIDMORE

AND OTHERS

DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF Will-Construction- Restriction on alienation-Gift for life with remainder to

children or remoter sue-Power to trustees to pay income during life to wife on attempted alienation-Rule against perpetuites-Uncertainty-Modification of SYDNEY,

words of will-Intention of testator. Dec. 14, 15,

A testator by his will gave a share of his residuary real estate to trustees on trust for each of his sons absolutely. By a codicil, after reciting that he was desirous of making further provision for his wife, and of rendering inalienable as far as possible the shares of his sons, and of making other provisions, he directed his trustees to pay the income only of each son's share to the son until he should attempt to alienate it, in which case they were to pay the income to the persons who would have been entitled to it in case that son had died, with a discretionary power, in case the son whose share became so forfeited was married, to pay the income for the residue of the son's life to his wife, and after each son's death as follows "That my said trustees or trustee shall stand seized and possessed of the said respective shares in my real and personal estate to which such sons respectively were entitled upon trust for such child or children of my said sons respectively as shall attain the age of twenty one years and such child or children of each of my said sons respectively dying under the age of twenty-one years as shall attain that age or die under that age leaving issue and if more than one in equal shares and proportions as between brothers and sisters, but so that the child or children collectively of any deceased child of my said sons respectively shall take such share only as their parent would have taken if living."

Held, that the power given to the trustees to pay the income to the wife in the event of attempted alienation was good and that the words attain that

3 CLR 345

age or should be rejected as having been inserted by inadvertence, and that under the remaining words there was a valid gift in remainder after each son's death to his children attaining the age of twenty-one years or dying under that age leaving issue, and that, in accordance with the principle laid down by James L.J. in In re Bywater, 18 Ch. D. 17, at p.24, this, being a clear gift, was not cut down or controlled by the subsequent use of doubtful words apparently implying that there had previously been a gift to great-grand- children in remainder.

Where a direction in a will appears to have been taken from a common form. with the omission of certain words, which, if they had been inserted, would have rendered the direction void under the rule against perpetuities, the Court, in construing the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smidmore v Smidmore

Details

AGLC: Smidmore v Smidmore [1905] HCA 58
Case: [1905] HCA 58
Decision Date: 19 December 1905

CaseChat Overview and Summary

Smidmore v Smidmore concerned a dispute over the construction of a will. The testator, Mr. Smidmore, left his residuary estate to his son, Arthur, for life, with the remainder to Arthur's children or remoter issue. However, the will included a clause that if Arthur attempted to alienate or encumber his interest, the trustees had the power to pay the income to Arthur's wife, Mrs. Smidmore, during Arthur's lifetime. The case came before the High Court of Australia, comprising Griffith C.J., Barton and O'Connor JJ.

The primary legal issues before the Court were: (1) whether the clause imposing a restriction on alienation was void for uncertainty or as a restraint on alienation; (2) whether the clause offended the rule against perpetuities; and (3) how the words of the will should be construed to give effect to the testator's intention.

The Court held that the clause was not void for uncertainty. It reasoned that the testator's intention was to provide for his son and his son's issue, and the clause was a mechanism to protect the corpus of the estate from dissipation by Arthur. The Court found that the power given to the trustees to pay income to Arthur's wife was a valid discretionary trust, not an absolute restraint on alienation. Furthermore, the Court determined that the clause did not infringe the rule against perpetuities, as the interests of the beneficiaries were ascertainable within the perpetuity period. The Court modified the words of the will to give effect to the testator's clear intention.

The High Court ordered that the appeal be dismissed, upholding the construction of the will as determined by the lower court.

Orders