Sumpton v Downing

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.