Wyatt v Perpetual Trustee Co Ltd - [1917] HCA 16

HIGH COURT

[1917.

[HIGH COURT OF AUSTRALIA.]

WYATT AND O T H E R S ....................................

A p p e l l a n t s ;

P l a in t if f s a n d

D e f e n d a n t s ,

AND

THE PERPETUAL TRUSTEE COMPANY! ^

LIMITED AND OTHERS . . .

D e f e n d a n t s ,

ON APPEAL FROM THE SUPREME COURT OP

NEW SOUTH WALES.

H.C. OE A. Will—Codicil—Construction—Oiftover—Death without leaving issue—Period of death.

1917.A testator by his wiU bequeathed his residuary estate to his trustees for sale

and conversion and to divide the proceeds among his named children, and

S y d n e y ,directed that “ in the event of the death of any of my said children without

April 11, 12,

26. leaving lawful issue him or her surviving then his or her respective share be divided amongst his or her brothers and sisters respectively.” By a codicil

Barton A.C.J.,

Isaacshe gave the trustees power to postpone the sale and conversion and declared

and Rich JJ.that the postponement should not affect the ultimate destination of the uncon

verted portion, and that the same should be treated as if converted immediately

after his death.

Held, on the language of the will and codicil, that in the wiU the word “ death ” meant death before the arrival of the time when the residuary estate had been realized and the proceeds were ready for distribution, and that that period was by the codicil brought back to the date of the death of the testator. Held, therefore, that on the death of the testator the residuary estate became

indefensibly vested in his children, who all survived him.

Decision of the Supreme Court of New South Wales {Harvey J.) : Wyatt v;

Wyatt, 16 S.R. (N.S.W.), 45.5, reversed.

A p p e a l from the Supreme Court of New South Wales.

Joseph Wyatt died on 16th August 1896, having made his will, dated 20th August 1890, and a codicil thereto, dated 27th July 1892.

23 C.L.R.]

OF AUSTRALIA.

H. C. OF A.

The will, so far as is material, was as follows :—“ I give devise and bequeath my freehold messuage and premises situate at Lavender

1917.

Bay aforesaid ” (known as “ Ellerslie ” ) “ together with the house

W y a t t

hold furniture goods and chattels in and about the same to my said perpetual

T r u s t e e trustees in trust to permit my wife Eleanor Dorothy Wyatt and any

Co. L t d .

of my children so long as they remain unmarried to use occupy and enjoy the same during the life of my said wife free of all payments in respect of rent taxes insurance or otherwise chargeable on the said premises but if my said wife should after my decease prefer to reside elsewhere…

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 Wyatt v Perpetual Trustee Co Ltd

Details

AGLC: Wyatt v Perpetual Trustee Co Ltd [1917] HCA 16
Case: [1917] HCA 16
Decision Date: 26 April 1917

CaseChat Overview and Summary

The appellants, the children of the testator Joseph Wyatt, appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned the construction of the testator's will and codicil, specifically whether the residuary estate became indefeasibly vested in his children upon his death. The testator had died in 1896, leaving a will and codicil that directed the sale and division of his residuary estate among his five children. A gift over was provided in the event of a child dying without leaving lawful issue surviving.

The central legal issue before the High Court was to determine the period within which the death of a child without leaving lawful issue would trigger the gift over. The appellants contended that the testator intended for the vesting of the residuary estate to occur at his death, meaning the gift over would only apply to deaths occurring before that time. Conversely, the respondents argued that the natural meaning of "death without leaving lawful issue" implied death at any time, and that the vesting was contingent on surviving the period of distribution.

The High Court, in allowing the appeal, reasoned that the testator's language, when read in conjunction with the codicil, indicated an intention for the residuary estate to vest indefeasibly in his children at the date of his death. The codicil's provision that the postponement of sale and conversion should not affect the ultimate destination of the unconverted portion, and that it should be treated as if converted immediately after the testator's death, was crucial. This effectively brought forward the period of distribution to the testator's death, meaning any child who survived the testator had their share indefeasibly vested. The Court applied the principle that in cases of doubt, courts lean towards early indefeasible vesting where consistent with the testator's expressed wishes.

The High Court ordered that the fourth question posed in the originating summons be answered in the affirmative, holding that the residuary real and personal estate became indefeasibly vested in the testator's five children upon his death. This decision reversed the finding of the Supreme Court of New South Wales.

Orders