Weavers v Dawson
[2001] NSWSC 907
•25 September 2001
CITATION: Weavers v Dawson [2001] NSWSC 907 CURRENT JURISDICTION: Equity Division FILE NUMBER(S): SC 3108/01 HEARING DATE(S): 25/09/01 JUDGMENT DATE:
25 September 2001PARTIES :
Elizabeth Weavers (P)
Peter Dawson, William Paul Mitchell, Jennifer Singleton and Ronald Cook (D)JUDGMENT OF: Young CJ in Eq
COUNSEL : J Needham (P)
P Joseph (D)SOLICITORS: P J Donnellan & Co (P)
Grahame Howe & Co (D)CATCHWORDS: SUCCESSION [190]- Wills- Construction- Gift to child who shall attain 25- Whether vested or contingent. CASES CITED: Boraston's case (1587) 3 Co Rep 16a; 76 ER 664
Collins v Equity Trustees Executors & Agency Co Ltd [1997] 2 VR 166
Countess of Bective v Hodgson (1864) 10 HLC 656; 11 ER 1181
Phipps v Ackers (1842) 9 Cl & F 583; 8 ER 539
Re Blackwell [1926] 1 Ch 223
Re Francis [1905] 2 Ch 491
Wilson v Elder (Needham AJ, 28.2.1992)DECISION: Summons dismissed.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION3108 of 2001
YOUNG CJ IN EQ
Tuesday 25 September 2001
JudgmentWEAVERS v DAWSON & ORS
: Johanna Brannan Dow Singleton died on 8 September 1994 having first duly made and published her last will and testament of 25 August 1994, probate of which was granted to the defendants on 2 May 1995.
2 The will in clauses 4 and 6 provided as follows:
- "4. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal to my Trustees UPON TRUST for such of them children JENNIFER SINGLETON, ELIZABETH SINGLETON, MATTHEW JOHN SINGLETON and KATHRYN SINGLETON who shall survive me and who shall or shall have attained the age of Twenty five (25) years and if more than one in equal shares absolutely.
6. I EMPOWER my Trustees to raise and apply such part of the capital or the income of the putative share of any infant beneficiary under this my Will for the maintenance education or advancement in life of such infant beneficiary and to pay the same to the person for the time being having the care and custody of such infant beneficiary without being bound to see to the proper application thereof."
3 The plaintiff, Elizabeth Weavers nee Singleton, is now twenty-four years of age. She claims that she has a vested gift, or at least a vested gift subject to that being divested if she does not attain twenty-five, and is entitled to call for her share to be paid to her. The defendants take the view that the gift is not vested until Elizabeth Weavers attains twenty-five years.
4 The ordinary construction of the words "should she survive and should she attain twenty-five" connote contingency and the beneficiary does not take an interest unless she: (a) survives the testatrix; and (b) attains that age. However, it is possible in some contexts to read the words as if they involve a vested gift or a vested gift subject to being divested.
5 Part of the reason for the cases in which the Court has not read the words as contingent is the old rule that there can never be a gap in seisin so that if one grants a lease for three years and then an estate to X, unless a Court construed that gift as a gift to X now subject to the lease for three years, the whole gift would fail. This is the well known rule in Boraston's case (1587) 3 Co Rep 16a; 76 ER 664. The raison d'etre for Boraston's case has now gone but it would seem that decisions in the House of Lords in Phipps v Ackers (1842) 9 Cl & F 583; 8 ER 539 and subsequent cases, the latest I think being Collins v Equity Trustees Executors and Agency Co Limited [1997] 2 VR 166 show that despite its origin, and even though the historical justification for the rule has gone, the rule of construction still exists; see Theobald on Wills 14th ed (Stevens & Sons Ltd, London, 1982) at p 563.
6 As Sargant LJ said in Re Blackwell [1926] 1 Ch 223, 238, the rule in Phipps v Ackers operates in two well known classes of case:
(a) " … where there is some intermediate gift, so that the words of futurity may be explained as being words of futurity only as in a gift in remainder"; and (b) " … where there is a gift over, if the primary beneficiary does not attain the age ...”.
7 The circumstances of the instant case do not fit within that rule. There is no interim gift, there is no gift over.
8 Ms Needham of counsel for the plaintiff points to the rule that the Court favours early vesting. That, of course, is a well known maxim; but it perhaps is more precisely expressed with the words of Warrington LJ in Blackwell's case, p 233:
- "That the Court is inclined rather to hold an estate to be vested than contingent if the words of the will will allow it to do so."
9 Ms Needham relied on the unreported decision of Needham AJ in Wilson v Elder, 28 February 1992. However, in that case the words of the will were "The house is for my sister's use … in the event of her death the whole of the property to revert to Loren ... this property is to be held in trust until Loren attains the age of twenty-one years." The case is distinguishable not only for the word "until", but also because the prior gift tends to get one into the territory covered by the rule in Phipps v Ackers.
10 Looking at the instant will, Ms Needham says that clause 6 points strongly to the beneficiaries obtaining from the capital as soon as they become sui juris because it only empowers the trustees to apply the capital or income of a share for the maintenance, education or advancement in life of the beneficiary whilst the beneficiary is an infant; ergo once the person has ceased to be an infant then the testatrix must have assumed that he or she was entitled to take the share.
11 The will does not contain any provision as to what is to happen to the income after clause 6 has run its course. The mere fact that either under s 36B of the Conveyancing Act 1919, or because of Countess of Bective v Hodgson (1864) 10 HLC 656; 11 ER 1181 the gifts of capital would carry the intermediate income is immaterial. The fact that the testatrix has not herself made provision shows that her intention was that the gift would then have taken effect, only being postponed until majority because the infant beneficiaries could not give a valid receipt to the proceeds until that time.
12 I appreciate that argument. I think the answer to it probably is that the drafter of the will used a precedent based on ss 43 and 44 of the Trustee Act 1925 which is confined to infants and I do not think for myself one can read anything more into it than that.
13 Indeed, clause 6 tends to apply against that argument because the drafter has used the word "putative". This seems to suggest that at least until the beneficiary attains eighteen he or she did not have a vested interest. The only change in eighteen could be the power of the beneficiary to give a receipt. There may be no difference in the change of interest from contingent to vested.
14 The fact that there is no gift over, and that there is no specific gift of intermediate income is singular, but it just shows that the drafter was not doing his or her best on that particular day. It seems to me that, looking at the general way cases have approached this problem, including Re Francis [1905] 2 Ch 491, the gift is contingent.
15 The summons dealt with both a construction and an accounting problem. The second problem has now resolved itself so I assume the easiest thing is to just dismiss the summons. I order that the costs of both sides on a party and party basis be paid out of the estate, which both counsel concede is the appropriate order. The exhibits may be returned.
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