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Tompkins v Simmons

Tompkins v Simmons

Case [1931] HCA 8 1 April 1931

Equity & Trusts

Statutory Interpretation

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44 CLR 546

RESPONDENT,

SIMMONS AND OTHERS

RESPONDENTS.

APPLICANTS AND RESPONDENTS,

ON APPEAL FROM THE SUPREME COURT OF Will--Construction-Class or individual gifts-Revocation by codicitAcceleration

of future interests-Intestacy. HOBART,

A testator by his will directed that the proceeds of his residuary personal and real estate should form a trust fund the income of which he bequeathed to his wife for life. He directed that after his wife's death his trustees should SYDNEY,

"stand possessed of my trust fund and any accumulations thereof and pay April 1.

and divide the income thereof equally to and among all my children of whom there are six " (Margaret, Edward, Mary, Henry, Emily and Hilda); but he further directed his trustees to hold such income upon trust to pay the whole or a portion of it to "the said child or children " or retain and expend the whole or portion of it for the maintenance and support of "such child or

44 CLR 547

children." And immediately after the decease of any one or more of his sons or daughters the testator directed his trustees to stand possessed of "the one sixth part or parts' of the trust fund together with " "the sixth part or parts" of the unapplied income thereof upon trust to pay and divide the same equally among such child's children who should attain the age of twenty-one years or being daughters marry. And if any of the testator's children should die without leaving children, then. he directed that "the share of the trust fund of that son or daughter shall revert to and become again part of my trust fund and be utilized for and by the survivors as previously directed." By a codicil the testator revoked the interest in the income bequeathed by the will to his daughter Margaret, but, as decided by Crisp J., did not revoke the limitation

Held, by Gavan Duffy C.J., Dixon, Evatt and McTiernan JJ. (Starke J. dissenting), that the effect of the material provisions of the will was to create six undivided shares in the trust fund, and to limit each of them to one of the respective named children of the testator for life and after his or her death to his or her children who should attain twenty-one or being daughters marry, with an accruer in default of such children and that there was no intestacy of the revoked share of income, but the gift of corpus to Margaret's children was accelerated, and, subject to such children attaining twenty-one or being daughters marrying, took effect immediately upon the death of the testator's

Decision of the Supreme Court of Tasmania (Crisp J.) reversed. By his will dated 21st September 1895 Edward Michael Fisher devised all his real estate and bequeathed all his personal estate unto trustees upon trust to permit his wife Emily Jane Fisher to use certain household goods and stock during her life and after her death to divide the same equally among his children. The testator directed his…

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 Tompkins v Simmons

Details

AGLC: Tompkins v Simmons [1931] HCA 8
Case: [1931] HCA 8
Decision Date: 1 April 1931

CaseChat Overview and Summary

The case of *Tompkins v Simmons* concerned a testator's will and a subsequent codicil. The testator established a trust fund from his residuary estate, with the income to be paid to his wife for life. After his wife's death, the income was to be divided equally among his six children, with provisions for the trustees to retain and expend portions for their maintenance. The will further stipulated that upon the death of any child, their one-sixth share of the trust fund, along with any unapplied income, was to be held for the benefit of that child's children who attained the age of twenty-one or, if daughters, married before that age. A codicil revoked the interest in the income bequeathed to the testator's daughter, Margaret Charlotte Bray, and substituted other benefits for her. The dispute arose regarding the disposition of the income from Margaret's revoked share during her lifetime, and the timing of the vesting of her children's interests.

The central legal issues before the High Court were whether the revoked share of income from Margaret Charlotte Bray's portion of the trust fund was undisposed of, leading to an intestacy, or if it should be distributed to the testator's other children. Additionally, the court had to determine whether the interests of Margaret Charlotte Bray's children in the corpus of the trust fund were accelerated by the revocation of their mother's life interest, or if they were contingent upon her death.

The High Court, by a majority, held that the will created six undivided shares in the trust fund, with each share limited to a child for life, followed by a gift to that child's children. The court reasoned that the revocation of Margaret Charlotte Bray's life interest by the codicil did not create an intestacy regarding the income of her share. Instead, the gift of the corpus to her children was accelerated, taking effect immediately upon the death of the testator's widow, subject to the children meeting the conditions of attaining twenty-one or marrying. The court applied the principle that where a prior interest in a settled gift is determined prematurely, a subsequent vested interest is accelerated, unless the testator's intention clearly indicates otherwise.

The appeal was allowed, and the order of the Supreme Court of Tasmania was varied. The High Court declared that the interests of Margaret Charlotte Bray's children were accelerated and took effect upon the death of the testator's widow, and that there was no intestacy as to the income of her share during her lifetime.

Orders