Williamson v Carter - [1935] HCA 65

[ ] WILLIAMSON

CARTER AND OTHERS

RESPONDENTS.

PLAINTIFFS AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF WillConstruction-Gift to class-Ascertainment of class-Absolute gift-Cutting

down absolute gift.

By her will a testatrix devised specific real property to her son W. during his life with remainder to his children. In the event of there not being any such children surviving him the property was to form part of her residuary estate. She directed her trustees to call in and convert the residue of her real and personal property and, after payment from the proceeds thereof of her debts, funeral and testamentary expenses, to divide the surplus equally between all her children who should then be living, children of deceased children to take their parent's share, but so that if W. should then be living her trustees should retain and pay his share into a savings bank, and, during his life, make him an allowance therefrom at a specified weekly amount, and after his death should hold the balance of those moneys on trust for his child or children. W., who was one of seven children who survived the testatrix, died childless seventeen years after her death.

Held, that W. was a member of the class entitled to share in the residuary estate, and the land specifically devised to him for life was not the subject of a separate disposition to a class to be ascertained when it fell into residue; that the gift to W. of a share of the residuary estate was absolute in form and the succeeding directions did not diminish it or cut it down; and therefore his legal personal representative was entitled to the balance remaining at his death of the moneys representing that share.

54 CLR 24

The rule in Lassence v. Tierney, (1849) 1 Mac. &G. 551; 41 E.R. 1379, applied.

Decision of the Supreme Court of New South Wales (Long Innes C.J. in Eq.)

APPEAL from the Supreme Court of New South Wales.

Isabella Massey, who died on 2nd June 1917, made a will dated 18th April 1917 the material provisions of which were as follows:- "Subject to the foregoing bequests I devise and bequeath all my real and personal estate whatsoever and wheresoever to my trustees

upon the trusts following namely the Carrington Hall and two shops numbers 129 and 131 Miller Street

upon trust for my

son Wilfred John de Lissa Massey during his life (subject as hereinafter mentioned) with remainder to his children in equal shares as tenants in common in fee But if he shall die without leaving children him surviving then the last mentioned property shall fall into and form part of my residuary estate Provided always and the gift to my said son Wilfred John de Lissa Massey of a life estate in the last mentioned property is upon this express condition namely that if from any cause what- ever his interest in the said property would but for this proviso be alienated anticipated encumbered or…

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 Williamson v Carter

Details

AGLC: Williamson v Carter [1935] HCA 65
Case: [1935] HCA 65
Decision Date: 17 October 1935

CaseChat Overview and Summary

This case concerned an appeal from the Supreme Court of New South Wales regarding the construction of a will. The testatrix devised specific real property to her son, Wilfred, for life with remainder to his children, and stipulated that if he died childless, the property would fall into her residuary estate. The residue was to be converted into money and divided equally among her children living at that time, with provisions for deceased children's issue. However, a specific direction applied to Wilfred's share: if he was alive at the time of distribution, his share was to be retained by the trustees, paid into a savings bank, and he was to receive a weekly allowance, with the balance to be held for his children after his death. Wilfred survived the testatrix but died childless seventeen years later.

The legal issues before the court were whether Wilfred's legal personal representative was entitled to the balance of his share of the residuary estate remaining at his death, or if the testatrix died intestate as to that balance. Additionally, the court had to determine when the class of beneficiaries entitled to share in the residuary estate was to be ascertained, particularly in relation to property that fell into residue after the initial distribution period.

The High Court of Australia, applying the rule in *Lassence v. Tierney*, held that the gift of a share of the residuary estate to Wilfred was absolute in its initial form. The subsequent directions regarding the retention of his share, the allowance, and the trust for his children were considered superadded directions that did not diminish or cut down the primary absolute gift. Therefore, Wilfred's legal personal representative was entitled to the balance of his share remaining at his death. The court also determined that the class of beneficiaries for the residuary estate was to be ascertained once for all, either at the death of the testatrix or within twelve months thereafter, and that property falling into residue later did not create a new class of beneficiaries.

The appeal was allowed, and the order of the Supreme Court was varied to declare that Wilfred's legal personal representative was entitled to the balance of his residuary share. The cross-appeal was dismissed, and all parties were awarded their costs out of the estate.

Orders