and of probate duty. The will contained no directions as to the payment of the testator's debts, funeral or testamentary expenses nor probate duty. Held, (1) that the funeral and testamentary expenses and probate duty should be paid out of the residue (including the proceeds of the life policies); that the testator's debts should be paid-so far as it was sufficient-out of the residue excluding the proceeds of the life policies), and as to the balance, to the necessary amount, not exceeding the amount due on overdraft, out of the proceeds of the preferential shares; (2) that the executors might fix the portion of the debts representing the value of the residue (excluding the proceeds of the life policies), and, if such portion should be provided by the residuary legatee, might transfer the property to her in specie. In the will of O'BRIEN; RAFTIS v. O'BRIEN, 1924 V.L.R. 262; 46 A.L.T. 5; 30 A.L.R. 260. [Victoria.]

Construction-Share of residue-Priority of payment of specified amounts-Direction to pay out of first moneys available for distribution. A testator, by clause 8 of his will, directed his trustees to divide the first moneys available for distribution under clause 13, equally between two of his daughters until they should each have received £500; and he expressly directed that such payments should be taken into account in the final distribution of his estate and should be deducted from the shares which these daughters would receive under that clause. By clause 13, he directed his trustees to divide the proceeds of the realization of his residuary estate equally between his children living at his death. The amount of the residue was insufficient to provide £500 each for all the children mentioned in clause 13. Held, that the trustees were bound to pay the two daughters £500 each before distributing any moneys under clause 13 to the other children. Blower v. Morret (2 Ves. Sen. 420) and In re Harris ([1912] 2 Ch. 241) distinguished. BROWN v. MOLLOY, 24 S.R. 304; 41 W.N. 68. [New South Wales.]

Construction-Strict Settlement -Rule in Shelley's case-Equitable life estate-Remainder to "every son, etc., of tenant for life and the heirs of their respective bodies "Words introductory to limitations by reference. -The testator devised his S. estate, upon trust for his son F. for life, with remainder to T., the eldest son of F., for life, with remainder in strict settlement to T.'s sons and daughters successively in tail male, with further remainders over. He devised this A. estate upon trust for his son A. for life, with remainder to C., the eldest son of A., for life, with remainder in strict settlement to the sons and daughters of C. successively in tail male, with further remainders over. Then followed a proviso that if any person to whom any estate in tail male or tail general by purchase was therein before limited should be borne in his life-time, such estates in tail should not take effect, but estates for life with remainders in tail should be substi. tuted for them. Later he devised his P. pro

He

perty upon trust as to one-sixth share for his son F., for life, with remainder upon trust for every son and daughter of F., and the heirs of their respective bodies for the same estates and in the same order and manner as the S. estate was limited to every son and daughter of F., and his or her respective issue. then devised in similar manner another onesixth share to his son A., but with limitations similar to the A. estate. F. and A. were now dead. T. and C. were alive. Held, (1) that the rule in Shelly's Case had no application to the respective devises of a one-sixth share in the P. property; (2) that the children of T. and C. took by purchase and not by descent, and that no estate was limited to either T. or C. in tail; (3) that on the true construction of the devises, T. and C. only took life estates in their proportionate shares of the P. property. In re Lord Lawrence ([1915] 1 Ch. 129); In re Hobbs ([1917] 1 Ch. 569); In re Ellton ([1917] 2 Ch. 413) applied; In re Simcoe ([1913] 1 Ch. 552) distinguished; In re De Lauret (10 S.R. 241); In re Keane's Estate ([1903] 1 I.R. 215) not followed. PERPETUAL TRUSTEE COY. v. HOLT AND ORS., 24 S.R. 325; 41 W.N. 60. [New South Wales.]

to

Election Devise of land-Intention dispose of property belonging to another person-Evidence of statements of intention. -Where a testator uses general words in a devise the presumption of law is that he is intending to deal only with interests of his own and that he is intending to deal with interests belonging to another person. Where it is contended that a testator has by his will purported or attempted to dispose of property belonging to another person the intention so to do must be absolutely clear. The question arose under a will whether the testator by a certain devise intended to dispose of property belonging to himself or of that belonging to another person and evidence was tendered as to statements of intention in this respect made by the testator. Held, that the evidence was only admissible if, after consideration of all the surrounding circumstances and applying the proper rules of construction and regarding the presumptions of law (if any), the words of the devise were equally applicable to his own and the other's property so that the Court was unable to ascertain the testator's intention without the aid of such evidence. Charter v. Charter (L.R. 7 H.L. 364) applied. ECKFORD v. ECKFORD, 41 W.N. 163. [New South Wales.]

Interpretation--"Die without leaving issue "Death at any time-Gift to children for life with remainder to their childrenSurvivorship Death without issue-No disposition of accrued shares-Residue-Intestacy-Wills Act 1915 (Vict.) (No. 2749), s. 23. -By his will a testator, after disposing of his household effects, gave all the residue of his personal estate and all his real estate to trustees upon trust to apply the income to the support and maintenance of his wife and children until the youngest surviving child should attain the age of twenty-one years

or being a daughter marry under that age, and upon the happening of either of those events he devised specific premises to each of his five children (who all survived him) for life with remainder in each case to such children of the tenant for life as should be living at the death of the parent. The will then proceeded: "I declare and direct that in case any of my said children shall die without leaving issue then the property herein before given and devised to the child who may so die without leaving issue shall be divided in such shares and portions amongst my surviv. ing children for life and after their respective deaths amongst their issue respectively as shall make the shares of such of my children as have received a less valuable portion equal as nearly as may be to the shares of those who have received portions of greater value. I also declare that all property whatsoever real or personal not herein before disposed of and of which I may die seised or possessed shall be divided amongst my said children or the survivors of them and their issue for the same estates and interest and in the same shares and proportions as lastly herein before directed my desire and intention being that each of my said children and their issue shall receive as nearly as possible an equal share of my property after my death." Held, by Knox, C.J., Isaacs, Higgins, Rich and Starke, JJ., that the words "shall die without leaving issue "referred to death at any time, whether before or after the youngest surviving child should attain the age of twenty-one years or being a daughter should marry under that age. At the date of his death the testator had, besides the property specifically devised, other real and personal property. Two of the children, A. and B., died without issue, in that order. Held, by Knox, C.J., Isaacs, Higgins, Rich and Starke, JJ., that on the death of A. the property specifically devised to her and her share of the real and personal property passed to the four children who survived her for their respective lives and after their deaths to their children who survived them respectively subject to the directions for equalizing portions; and that on the death of B. the property specifically devised to him and his original share of the other real and personal property passed to the three children who survived him and their children subject to similar limitations. Held, also, by Knox, C.J., Isaacs, Rich and Starke, JJ. (Higgins, J. dissenting), that on the death of B. the share of the property specifically devised to A. which passed to B. upon A.'s death passed under the declaration as to "all property whatsoever real or personal not herein before disposed of and of which I may die seised or possessed" to the three children who survived him and their children subject to similar limitations. Per Higgins, J.: The words in this latter declaration refer, not to shares or interests, but to any corporeal concrete properties real or personal other than those previously mentioned specifically. Held, further, by Knox, C.J., Isaacs, Higgins, Rich and Starke, JJ., that upon B.'s death there was an intestacy of the original testator in

respect of so much of A.'s share of the other real and personal property as upon A.'s death passed to B. and his children. FLANAGAN v. NATIONAL TRUSTEES, EXECUTORS AND AGENCY COMPANY OF AUSTRALASIA LIMITED AND OTHERS, 32 C.L.R. 468. [High Court.]

Devise of land-Effect of disposition to widow for benefit of children-Charge.-W., by his will, devised 52 acres of land to his son, R., he to pay £25 per annum rent to M. E. W.," the testator's widow, for the benefit of two children named in the will of R. Held, that the effect of this disposition was to create a charge in favour of the two children and the survivor of them for life. In the Will of GEORGE WALMSLEY, 1922 Tas. L.R. 32. [Tasmania.]

Construction Assignment of interest in real estate-Disposition of interests accruing after assignment-Recital in will controlled by clear subsequent gift.-A testator devised certain real estate in such a way as to give a life interest to his son, T. H. E., and estates in remainder to certain grand-children including seven children of T. H. E. T. E. H. assigned to his wife L. all the interest in the said real estate whether original or accruing to which he was then or might at any time hereafter be entitled whether under the will of the testator or otherwise howsoever. L., after reciting that T. H. E. was possessed of a life interest under testator's will, gave, devised and bequeathed all the interest to which she was entitled under or by virtue of the testator's will which was assigned and transferred to her by T. H. E. to her elder daughter A. E. E. One of the seven grandchildren died intestate leaving T. H. E. his heir-at-law, and the remaining six grandchildren died intestate leaving T. H. E. their sole next of kin. Held, (1) that the share of such seven grandchildren to which T. H. E. became entitled as heir-at-law or sole next of kin passed under the assignment to his wife L. whether such grandchildren died before or after the date of the assignment; (2) that the recital in L.'s will must be controlled by the subsequent operative gift and therefore A. E. E. was entitled absolutely to all seven shares. In re EDDINGTON, 1922 Tas. L.R. 15. [Tasmania.]

Attempt to entail land held under the "Real Property Act "-Gift to tenant in tail for time being of realty-Construction of will -Gifts of personalty to tenant in tail.— A testator devised real estate to his trustees upon trust for W. C. for life with remainder in trust for the first and other sons of W. C. severally and successively according to seniority in tail male and in default of sons for daughters in the same way with remainder to H. R. N. C. for life with similar limitations in tail male in favour of the sons and daughters of H. R. N. C. The land was held under the R. P. Act and incapable of being entailed. The testator also directed his trustees to pay the interest on a sum of £20,000 to H. R. N. C. during life, and subject to an annuity of £100 to the widow of W. C., to the tenant in tail for the time being of the realty until the deter

a

mination of the tenancy in tail whether by barring of entail or failure of heirs of W. C. or operation of law. Then followed similar disposition in favour of H. R. N. C., and his wife during widowhood and the tenant in tail for the time being under the second series of entails. After the failure or determination of all the estates tail whether by barring of entail or failure of heirs or operation of law the £20,000 was disposed of as part of the residuary estate. An originating summons was taken out by the trustees to determine the validity of the gifts of personalty subsequent to the gift to W. C. Held, that as there could be no tenant in tail all the limitations in favour of "the tenant in tail for the time being" necessarily failed, that the dispositions in favour of H. R. N. C. and his widow were valid as alternative limitations and on the death of the survivor, the £20,000 fell into residue. Judgment of the Supreme Court of Tasmania affirmed. In re PITT COBBETT, 1922 Tas. L.R. 47. [High Court.]

"

ex

The

Construction-Specific legacies to named children-Legacy to granddaughter L.Residue amongst children equally-ProvisoL. no interest in residue-Investments " pressly forbidden.”—A testatrix, (the mother of eleven children, one of whom, Charles, had died in her lifetime, leaving a daughter Lorna, in her will, which mentioned by name, all her children and the granddaughter gave specific legacies to all except the deceased Charles and another son R. already provided for. legacy of £200 given to my granddaughter Lorna Muriel the daughter of my deceased son Charles Acton was to be placed by the trustee in the Post Office Savings Bank until her majority. The residue testatrix left to her children (except Richard) in equal shares. There was a proviso that if any child of mine shall die in my lifetime leaving a child or children and being a son or sons shall attain the age of twenty-one years or being a daughter or daughters shall attain that age or marry then in every such the last mentioned child or children shall take and if more than one equally between them the share which his, her or their parent would have taken of and in the said trust moneys if such parent had survived me and attained the age of twenty-one years. Held, that the grandchild Lorna did not take any estate or interest, presumptive otherwise, in the residuary estate of the deceased. Christopherson v. Naylor (1 Mer. 320) and Gorringe v. Mahlstedt, ([1907] A.C. 225) applied, A direction to invest moneys in a particular specified form of investment does not make other lawful investments expressly forbidden" within the meaning of a Trustee Act 1908. ZEALAND INSURANCE Co. v. ACTON, 1924 N.Z.L.R. 193. [New Zealand.]

case

or

NEW

Bequest to sons then living when the youngest son shall attain twenty-one yearsWhether only those sons or the next of kin of deceased sons should share. Testatrix gave her estate to trustees for her children,

naming them, or such of them as shall then be living when and until the youngest of them shall attain the age of twenty-one years upon trust to sell call in and convert into money. and to pay the proceeds arising from such sale less the cost of such selling calling-in and conversion unto my sons above named and described or to such of them as shall then be living in equal shares share and share alike." The second youngest son died on the 25th September, 1916, aged twenty-one years and three-menths. All the sons were alive when he attained twenty-one years Another son died on the 20th October, 1917, aged twenty-six years and three months, and the youngest son died on the 29th November, 1918, aged twenty years and three months. Held, that only the sons alive on the 30th November, 1918, were entitled to share in the bequest, and that the next-of-kin of the deceased sons had no interest in the estate. ALLEY V. PUBLIC TRUSTEE, 1924 N.Z.L.R. 223; G.L.R. 329. [New Zealand.]

66

Legacies to grandchildren-Not to be paid if legatee did not attain 21-Whether interest payable Vesting-Divesting. The testator gave the whole of his estate to trustees upon trust to convert the same into money, and upon further trust to pay £1,000 each to each of his grandchildren by name : Provided however, that each of the foregoing legacies shall not be paid to the respective legatee if the said legatee does not attain the age of 21 years." Provision was made to meet the case of a grandchild dying before the testator and before attaining 21, and a similar provision embodied in the same clause to meet the case of a child surviving the testator, but dying under 21. In this provision he made the gift over to a named class which happened to consist of the same persons who, as a class, constituted the residuary legatees. Held, that the legacies were vested subject to be divested in the case of a grandson dying before attaining 21, and therefore the legacies carried interest. PUBLIC TRUSTEE v. PEARCE, 1924 G.L.R. 460. [New Zealand.]

Trust for conversion-Life interest to wife Upon her death division between children-Share of child under twenty-oneSubstitutionary gift to grandchild-Time of vesting. A testator directed that, subject to payment of the income to his widow during her life, the residue of his estate should be divided among his children equally, and the trustees were directed to hold the share of any child under twenty-one at the time of the widow's death until such child attained twenty-one; further, if any child should have died in testator's lifetime or before the period of absolute vesting leaving child or children surviving, such child or children were to take the parent's share. Held, that the postponement of division until after the death of the testator's widow was only for the purpose of giving precedence to her life estate, and each child's share vested on the death of the testator and was liable to be divested only if such child died before attaining twenty-one

leaving child or children surviving, in which case the substitutionary gift would take effect. ACLAND V. FRIEDLANDER, N.Z.L.R. 446. [New Zealand.]

1924

sons

Interest passing-Bequest of two of whole estate upon trust to pay debtsAppointment of sons as executors-Effect.Testator devised the whole of his estate to his two sons (naming them) upon the following trust upon that is to say upon trust to pay all my just debts death-bed funeral and testamentary expenses.' He then appointed his two sons his executors, but declared no trusts concerning the net assets of the estate. Held, that the two sons took the whole estate beneficially, charged only with the payment of debts, etc. Algood v. Blake (L.R. 8 Ex. 160) and Turner v. Hellard (30 Ch. D. 390) followed. Crome v. Crome, (59 L.T. 582) considered and applied. King V. Denison (1 V. & B. 260) distinguished. HUNTER v. PUBLIC TRUSTEE, 1924 N.Z.L.R. 882; G.L.R. 544. [New Zealand.]

Construction-Gift over on death without issue-Divesting.-A testator by his will gave the whole of his estate to his wife during widowhood, and thereafter to trustees on trust to sell and divide the proceeds equally between his six children (naming them) on their attaining twenty-one years. The will continued-" and should any of my children die without lawful issue then his or her share shall go to the survivors of such one dying his or her executors administrators or assigns." The will further directed the trustees to invest the trust money for the benefit of the children and apply the income for their maintenance until they attained the age of twenty-one years. The widow survived the testator and died, not having re-married, in 1922. The eldest child was over twenty-one years when the will was made, and the others attained that age. A son predeceased the widow, and died married, but without children. Held, that on the language of the will construed in the light of facts known to the testator at the time of its execution, the gift over could not be restricted to the event of death without issue before attaining twenty-one years, and, consequently, the son's share was divested. O'Mahoney v. Burdett ([1875] L.R. 7 H.L. (E. & I.) 388) and In re Schnadhorst ([1902] 2 Ch. 234) applied. In re BOWELS, 1923 S.A.S.R. 194. [South Australia.]

Construction Commencement of enjoyment of estate in remainder-Contingent future interest-Death of remainder man before life tenant Intestacy Survivor.-A testator declared by his will that his trustees should divide the residue of his trust moneys into thirteen equal parts, and should stand possessed of two equal parts on certain trusts in favour of one J. These provisions were revoked by a codicil which provided that the trustees should invest the same on trust and pay the income to J. for life, and if the said J. should not attain twenty-one years, then the trustees should pay the income of the two equal parts to W. and C., or the survivor; and after the death of W. and C., then the parts should be equally divided between the children of J., but if none, between the children of W. and C. The will then gave two other parts on trust to invest and pay the income to T. for life, and after her death on trust to pay the same to J. when she should attain twenty-one years, and if J. should not

be living at the death of T. on trust to pay the same to W. and C. in equal shares or if either were then dead to the survivor. T. was alive at the date of the summons; C. died in 1888, W. in 1891, and J. in 1921, leaving six children, all except one being alive at the date of the summons. Held, that the gift of the two first-mentioned parts to the children of J. was to be enjoyed immediately after the death of J., W., and C., and not from the death of the longer-liver of W. and C. Held, also that there was no intestacy as to the remainder of the two parts given to T. that the word "survivor in the gift referred to the death of the life tenant, and as both W. and C. had survived the life tenant their personal representatives took the two parts as tenants in common. In re Pickworth ([1899] 1 Ch. 642) applied. In re TAPLEY; EVANS v. MOORE, 1923 S.A.S.R. 533. [South Australia.]

,,

Construction-Woman past age of childbearing No presumption when effect would cut down interest of others than a child of hers -When next-of-kin are ascertained-Intestacy. A testator gave certain property to his wife for life, and after her death the income thereof to his daughters A. and J. equally, and after their respective deceases for their children who should attain twenty-one years, and on the youngest attaining that age, then to divide the property equally between such children, per capita, or if there should be only one such child, then to transfer the whole to that child, and if no such child should attain that age, then the trustees should hold the property for the next-of-kin of the testator then surviving, according to the law of intestate personal property then in force in South Australia. A. died without issue. J. was twice married, and was at the time of these proceedings a widow at the age of sixty -never having had children. The widow of the deceased died in 1908, and two sons of the testator, his remaining children, were still alive. By two orders of Gordon, J., relating solely to the income of the property, it was declared that J. was entitled to half the income, and that there was an intestacy of the other half, which passed to J., and the two sons in equal shares. Held, that "next-ofkin "

meant next-of-kin living at the death of the testator cut down to those who survive at the period of distribution, and that such next-of-kin would take, inter se, according to the law in force at the date of distribution. Held, that no presumption could be made that J. would never bear a child, as the effect of such presumption would be by vesting the property (subject to her life interest) in the next-of-kin now surviving, to cut down the possible interests of the two sons, if they survived J., from one-half to one-third, assuming the law as to the distribution in intestacy remained unaltered. In re ANDERS; PUBLIC TRUSTEE v. SACK, 1924 S.A.S.R. 33. [South Australia.]

Construction-Divesting.-A testator by his will gave certain specified sections of land to his daughters M. and A. share and share

alike during their lives, and after the death of M. to hold the same to the use of A. and after the decease of A. on trust to divide the same among all her children, and in the event of her death without issue on trust for M. for life, and after her death unto and to the use of all the children of M. as tenants in common and in the event of the said children dying without issue on trust for a son J., his heirs and assigns. The testator devised the residue of his real estate to M. for life, and after her death to all the children of M. at tenants in common, and in the event of the said children dying without issue then to J. M. survived the testator and died leaving three children, of whom one was living, one had died unmarried, and the third had died leaving children. The daughter A. was living, a spinster, aged eighty. The son J. died unmarried and intestate. that the divesting clause must be construed strictly, that the exact contingency on which the gift over to J. was to take place had not happened, as one of the children had died leaving issue, and that the living child and the representatives of the deceased children took interests in fee simple equally as tenants in common in the specified lands and the residuary real estate, subject in the respective cases to the life interest and right of occupancy of the daughter A. In re RICHMOND ; KELLY v. MATYARD, 1923 S.A.S.R. 189. [South Australia.]

Held,

Gift to wife-Unmarried-ConstructionLimitation-Life estate Gift over-Extension by implication.-A testator left his estate to my wife. so long as she remains unmarried. In the event of her marrying then one hundred acres of my land must be the property of son William provided he shall in the meantime worked the whole for the benefit of his mother and her children to her satisfaction and the remainder of my estate shall be equally divided amongst my other living children. Failing such service to his mother and her children then in case of my wife's marriage then the whole of my estate to be equally divided amongst such of my children as may be living. (1) that the widow took a life interest during her widowhood; (2) the children of the testator living at his death took a vested interest in remainder, in the shares fixed by the will, expectant on the determination of the widow's life estate. In re GIBSON ; CULLEN v. GIBSON, 1924 N.Z.L.R. 285; G.L.R. 46. [New Zealand.]

Held,