Sumpton v Downing - [1947] HCA 36

SUMPTON AND OTHERS

APPELLANTS DEFENDANTS,

DOWNING AND OTHERS

RESPONDENTS.

PLAINTIFFS AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF Will-Codicil--Construction - Gift of income of residuary estate, subject to prior

life estate, to two named persons during their lives and subject thereto gift of corpus of residue to such of the children of the two named persons as should be PERTH,

living at their death absolutely-Per capita or per stirpes-Distribution of income Sept. 9, 10.

after the death of one of the named persons and prior life tenant. MELBOURNE,

A testator, having provided for payment of the income of his residuary estate to his widow during her life or until her remarriage, directed his trustees after the death or remarriage of his widow to pay the income of his residuary estate to his sisters M. and E. in equal shares during their lives and subject thereto to hold the corpus of his residuary estate upon trust for such of the children of M. and E. as should be living at their death in equal shares abso- lutely.

There followed a substitutionary gift to take effect if any of the children of M. or E. should die in the lifetime of their parent leaving a child or children living at the death of M. or E. as the case might be. E. died childless before the testator's widow, who did not remarry. M. died subsequently to the testator's widow leaving her surviving five children and two grandchildren, who were children of a deceased child of M.

Held, (1) that the children and grandchildren of M. who were living at her death were entitled to the whole of the corpus of the residuary estate, the grandchildren taking the share of their deceased parent; (2) that the half share of the income of the residuary estate accruing between the death of the testator's widow and the death of M., which would, but for her death, have been payable to E., passed into residue.

Decision of the Supreme Court of Western Australia (Wolff J.) affirmed.

75 CLR 77

APPEAL from the Supreme Court of Western Australia.

By his will dated 25th September 1917 Thomas Statham, of the Esplanade, Peppermint Grove, Cottesloe, in the State of Western Australia, after appointing his wife Amanda Martha Statham and Henry Percy Downing, and Ida Blanche Downing to be executors and trustees of his said will devised and bequeathed

the house in which I am now residing and known as 'Mt. Crosby together with the household furniture plate linen china glass books prints provisions and other household effects belonging to me at the time of my death and my 'Buick motor car to my wife absolutely."

The testator then devised and bequeathed the residue of his real and personal estate upon trust to sell and convert the same into money and subject to certain directions and powers to hold the money arising from the sale, conversion and getting in of the estate upon certain trusts. 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.

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Details

Case: [1947] HCA 36
Decision Date: 6 October 1947

CaseChat Overview and Summary

The appeal concerned the construction of a will and codicil made by Thomas Statham. The testator's widow was given a life interest in the residuary estate, determinable on remarriage. Upon her death or remarriage, the income of the residue was to be paid to his sisters, Mary Blood and Elizabeth Coneybeare, in equal shares during their lives. The corpus of the residue was then to be held for such of the children of Mary and Elizabeth as were living at their death, with a substitutionary gift to grandchildren. Elizabeth Coneybeare died childless before the testator's widow. Mary Blood died after the widow, leaving surviving children and grandchildren (children of a deceased son). The appellants contended that there was an intestacy as to half the corpus and half the income accrued between the widow's death and Mary Blood's death.

The legal issues before the High Court were: (1) whether the gift of the corpus of the residuary estate was divisible into two moieties, one for the children of Mary Blood and one for the children of Elizabeth Coneybeare, or whether it was a single gift to a composite class of children of both sisters; and (2) how the income of the residuary estate was to be distributed between the death of the testator's widow and the death of Mary Blood, specifically whether the share of income that would have gone to Elizabeth Coneybeare passed into residue or was undisposed of.

The High Court, affirming the decision of the Supreme Court of Western Australia, held that the children and grandchildren of Mary Blood were entitled to the whole of the corpus of the residuary estate, with grandchildren taking the share of their deceased parent. This was based on the interpretation that the gift of the corpus was to a single class of beneficiaries comprising the children of both sisters, and that the phrase "subject thereto" indicated a disposition of the entire fund upon a single event – the death of the survivor of the sisters. Regarding the income, the Court held that the half share of the income that would have been payable to Elizabeth Coneybeare between the death of the testator's widow and the death of Mary Blood passed into residue, meaning only half of the income was payable to Mary Blood during that period.

Orders