O'ooron Vv PERPETUAL TRUSTEE COMPANY LTD. \ ) upaurnr . . KNOX C.3y This is an cal from so much of o decretal order of Harvey Od, inftquity as declared that certain property in Church and csorge Streets Parrawatts was atrieisie fo 48 appellant and the other half to the children of Samuel Barber who survived his widow, including the appellant, and the grand—ehildren of the said Samuel Barber whose par- ents predeceased the said widow, such grandchildren to take £ixx pera shirpes. The question turns upon the construction to be put upen the will of Samuel Barber. The gift.of the property now in question is in the words following viz:- "I give and devise unto the said George Thomas Hunt and yenry Janes Barber or the survivor ef them or the heirs executors or administrators of such survivor all that my block of pro- perty at the corner of Georg: & Church Sts Paranatta aforesaid upon trust to receive the rents issues and profits thereof and out cf such proceeda to pgy to my dear wife Margaret Barber the yearly sum of £364 by. equal quarterly payments for and during the term of her natural.life er so long as she remains my widow but in the event of her intermarrying after wy decease then that the annuel payment sto be made to her shall be roffvith reduced to the sui of £300 and further to pay un out of the Diva bos 1926 ij : a : 'skares end proportions « a. said rents issues and profits unto my daughter Icey Britaania Jolinstn Barber the yearly sum of £150 by equal quarterly payments for and during h h o the term of her natural life or until the decease of Mother my daid wife Margaret Barber and from and immediataly after her decesse I dir- ect that the said block of land be sold g one half of th2 proceeds to be invested for or paid over tc my dear daughter Icey Britannia Johnson Barber and thecthsr half be equally divided bety surviving and I further direct my said trustees after the y before mentioned annuitigs and oll retes taxes and re 3 to divide the balance cf such rents and profita bet my daughters Lydia Dale and Ruth Cook until my wife's death as aforesaid," If this gift stood slone there would be no difficulty, fcr the aylag the uE of the teatator appehlant being the only child/whe survived his vidow would clearly be entitled to the whole property. But the will contains another provis— ion the effect of which was in the opinion cf the learned Chief Judge .to let in the children of such of the testator's children as predecea— sed hie widow, That :rovision is in the words fcllowing vi "I declare that if any of my children herein named shell ;redsceseeue ieoving issue, or depart this lif: before distribution of my estate leaving issue such issue shall take (if more than one child in equal ad if but one that one alone) th e share or shares respectively of their deceased parent or rents but I direct the 200 acres of land directed to 4s sold shall be if any of the parties benefiting thereby depart this life before sale is completed thereof divided between the survivors . of the seven persons to whom I have bequeathed the proceeds of such. sale." "Tn an earlier case in which the will of this testator waa the subject cf a decision of the Supreme Court it was held provision applied tc the shares of testator's children @ary real estate and thet the ohildren of a son of ths survived the testator out died within a year after his entitled to their fatherts share of the regiduary real ground of that decision must have beoa that the expression "distri- that this in the resid- testator who dsath became ¢ estate. The "bution of uy aetate" in the elauge under discussion should be con- stryed as deoning not the tims. when the gatate Was actually distri- wuted, but the tise at which in the ordinary course of events it would becoue distributable via: teatatorts death, The parties to this appeal were reptesénted in ha earlier procgedings: and cannot now be heard to question that ine ) et, the expiration of one year from "texpretation of the elauee. And if the expression "before distri- bion of my estate" in this will is to be read as indicating oie guia point 'of time and. one only viz:- before the first anniveraary of tke testatorts death, it would seem to follow that the provision in question would be inapplicale te the gift of the Church and Ceotge . { Strestspmoperty. For it is impossible to attribute to the testa- tor the intention of letting in. the ohildren of such' of his child- ren a3 should predecease him or die within a year after hin and at eae a lading the children of such of his children as should die more theh a year after hig death but in the lifetins of ia widow. : But Mr.Flannery for the respondents contends that the express ion "before distribution of my estate" is to be given an ambulatory ueaning denoting 'dafterent pointe pf time appropriate to the geverk "gifts to which the provision may be held to apply. Thus conceding tnat in ite application to the ettt of, regiduary real estate the _ okpreasion means "before the expiration of one year from my , doath" 1 state, "and 'he fact that he prege ede 'expressly to vary the dir- O'CONOR v. PERPETUAL TRUSTEE COMPANY LIMITED. JUDGMENT. RICH J. O'covOR ov. $PERPRIUAL TRUSYEE coMPAuY (LiD.)! JUDGHEN. RICH J. As I differ from the judgneat of the learned Chief Judge in Equity I shall briefly state my reasons for so doing. The appeal is concerned in effect with the construct- ion of two clauses contained in the will of Samuel Barber, The relevant clauses are " I give and devise unto the said George Thomas Hunt and "Henry James Barber or the survivor of them or the heirs executors or "administrators of such survivor all that my block of property at the "corner of George and Church Streets Parramatta aforesaid UPON TRUST to "receive the rents issues and profits thereof and out of such proceeds to pay to my dear wife Margaret Barber the yearly sum of -phree hundred and sixty four pounds by equal quarterly payments for and during the term of her natural life or so long as she remains my widow but in tle "event of her intermarrying after my decease then that the annual pay- "ment to be made to her shall be forthwith reduced to the sum of Three "hundred pounds ai futther to pay out of the said rents issues and pro- Be Te Fite UNTO wy daughter Icey Britanni® Johnson Barber the yearly sum of one ""hundred and fifty pounds by equal quarterly payments for and during the "term of her natural life or until the decease of her' mother my said wife "Margaret Barber and from and imuediately after her decease I DIRECT that "the said block of land be sold One half of the proceeds to be invested " for or paid over to my dear daughter Icey Britannia Johnson Barber and "the other half be equally divided between my children then surviving". "I DECLARE that if any of my children herein named shall ""predecease me leaving issue, or depart this life before distribution of "my estate leaving issue such issue shall tuke (if more than one child in "equal shares and proportions and if but one that one alone) the share or "shares respectively of their deceased parent or parents but I direct that Xe i "proceeds of the two hundred acres of land directed to be sold shall be "if any of the parties benefitting thereby depart this life before sale is "coupleted thereof divided between the survivors of the seven persons to "whom I have bequeathed the proceeds of such sale". The first clause taken alone is clear and definite Se enough. Provision is made during the life offestator's widow for the payment out of the rents etc. of certain annuities: a vested remander is given to Icey Barber (the appellant) and s contingent remainder to testator's children surviving his widow. In the events which have happen- ed the appellsnt, is entitled to the whole of the proceeds of the land in question unless the later clause is applicable to the former clause and operates to divest the interest so clearly and specifically given. The clause in question is in two parts. The first part is somewhat analogous to the lapse clause section 29 of the Wills Probate and Administration Act 1898. The other part with which we are concerned is intended to prevent the apse of children's shares after the testator's death. If the clause be read literally full effect being given to the actual langusge used, it is found that it is expressed to be appliczble to gifts to named ohildren end in which such children take property in shares. The language of the clause, read literally, has no application exept to the case where a child has become entitled to a share, and it operates therefore as a dives ing clause. According to its literal meaning it has no application to 4a. the case where a child never becomes entitled to a share at all. If the clause be read in its context in the will it ia found to follow the residuary devise, which is immediately preceded by the devise of the Dog Trap Road property. These are the only two dispositions of the will to which the clause in question actually and exactly applies if no word in it be read in any forced or unnatural sense. The express exclusion by the testator of the devise of the Dog Trap Road property from the oper&%- tion of the clause leaved the residusry devise the only provision of the will to which the clause according to its actual significance applies . Is there, then, anything in the will read as a whole which leads to the conclusion that the language of the clause should be extended beyond its patural meaning so as to give effect to an intention discoverable from the whole will, to bring within its scope e cieuse under which children have not become entitled to shares of property and under which the children to take are not named? In my opinion there is not. I have al+ ready indicated that the contingent gift contained in the devise of the George and Church Streets property is not a gift to children named (the testator could not anticipate which of them would @urvive his widow) pe ST en oa 5. and no shareia given to children which the issue can be said to take. ' This opinion seemsa to be in accordamce with a previous decision on this will relating to the residuary devise which was not brought to the atten- tion of the learned Chief Judge in Equity. For these reasons Iagree that the appeal should be allowed. Pay Bi ' "wRUg ny i Bs a - GIGONOR EV PERPETUAL TRUSTEE COVAND OTHMIREY HIGGINS Je tho only quastion as to which this appeal has been brought i¢ question B-— LJ -In the ovents which have happened to whom on the ocustruction of the will of the said Same] Barber shall the trustes of the said will pay the capital ofthe propexty in Church and George atreets Paramatta My This particular property wae davised by the will to Thome Hunt and Hed Burber 'Mpon treet to cay to the widew of the testator 364 por 'exmum out of the rente(reduoible to 4500 per annum if sho remarried jand to pay te his daughtex Taoy{now Mra OCongor,the appeliant) 4150 pom. for her life or until 'the deith of thy sitae yand the property: was directea to be sold immediately after the widow's death and one haat of the procesds waa to be invested fox or paid over to Looy [ae ths: tostator's death she was an infans] end the other half of the proceeds vas to be equally divided between the testater's children then survivingsand . URSIL the death of the widow the tmstees were to divide the balance . other. of the rents between the daughters Lydia and Tuthe Mrs: Ofconfor 4a the only child of the testator that 2till remains on fhe : akives The widow died 1éth Oot 1085 oath 11 the other children(Zive in nuubsr died before here Thera is ko dispute as to Urn OfConyfor paing @ntitled to the first half of the proceeds shat ehe olaina alse the (ether half on the ground,that se 4s the only child of the testator warviving ab she widow's deaths thers 19 no dovbt that this claim would be right but for a » Babetitutionary provision at tha end of the will----- . Gish in, vi tre will. — Angora, ine the CE] \% deolare that if any of my children herein numed She predecesse me leaving issue,or depart this life before distribution of my edtate : leaving issus,such issues shall take(if more than one child in equal , Shaxes and proportions and if but one that one ulone}the share or shares 'oapectively of sheiz decsased pyarsnt or parents, but I direot that the : $ooeeda of the 800 acres of land dixected to be sold shall be if any of the parties benefitving thereby depart this idfé-before sale is voupleted thereof divided between the survivors of the seven persons to. whom I have bequeathed the proceeds of auch sale s hb . The 200 wcres here referred nad een in a previous. part of the wil devised to the trustees upon trast foe sale as seam after the tectator's death as convenient and the nat proceeds arising therefrom were to bo divided (necessariiy by the trustess) between the widow and the sir onildren(2ii naned)in equal shares and proportions.There is no doubt, therefore,as to the procesda of the 200 acres,that the testator bythis Gubstitutionary clauses go. altered or qualified his intention as to Siva the proeseds, not te the sever persone equally, bet to those of the : Of " oe z seven who should survive the completion of the wale;and the question is, ale? CEGS he alter er qualify his intention as to the property now in question Bo. that the ohildren of any ohild not "then surviving" at the distribution shovld take by substitution the parent's ghare. Tt 48 contended for ice O'Oenfor that this substitutionary clause dees not apply to the case of the cktiaxen of the testator who died before "the widewsbecunse the words Masetrinution of ny estate" mast refer to one #vent common to all the properties which are given by the will,and the only event to which "aietzibation of the state" san refer mot be the ent ; of the execntor's year~—--the year within which executors mst prina facie maXe ready to distributes It nas to be borne in nind, however, that at the death of the testator, 12th Nov 1890, the modem law vesting all real estate in the ekoouters was not in Lorces4t did not come into force til 15th Deo 1596 (Zeobats Act 1890)2 The real estate vested by law direct in the devissos¢ and ad to the real estate devised to the trusteca,vested in the trontest. The exeoutors as such( the widow and the two trustees)had no duty of Alstritution of the real estatejand the exsceuters' year cunnot apply to the exeoutors as to the real estate. Ne Davison ,for Urs O'Gonfor refers to auch cages ag re Avrowenith's truste(2 DP & J 274). In thet cose o fund was bequeathed to nephews and nieces whe should be Living at the tbe goath of the tootator Jut thare was a direction that in tha cage of the 1 4 t) 7 p * Goath of any of them "perore reesiving thelz respective snares" the share ox shares of those #o dyisg should MA) go to the survivors equally? The fund was not actually distributed until after the widow's desth,so it we wrongly nuppeaed that @he had . Lite interest thoroine---The widow Rived for 16 yoara after the testate®,and during her lifetina one of the miecet died before the executors! year had oxpired,ané 12 of the nephews and nieoos had died after the exeoutors! years Vieo-Chancelior indsreley, and on appead the Lords Jasticon(Lord Juetice Knight Bruce at all events), 'noid. that sua she nephews and niecet living at. the death took 'vosted : tatarceve Liable to be divested only on death before the espiration of 12 : months trom tha death of the testator. Dat this to enly one of the SMNOFOE inetanoas in which the Soart# have leant heavily against * verted interact ae porscant ty ,wostea at the deata of the teetator,being treated as diveated by the fact that,owing to posaibis delay of caprias of wistake of the executors the fund my not have been actuaily distritated es som as it night heve been( Johnacn verooki2 Ch D 630; xe Collison dbs 654; x0 Cheaten 16 Ch D @185 re Wilkins db. 634). In auch a case, the Qourts treat, if possible,tho revaipt of the ohare as referring to the. > bine thas 4¢ was receivabley the time that 1% ought to have boon rocotvady and,in tho absence of evidenes to the centzary(see dn vg Colldgon 12 Ch D : B54, 859), the period of teslve monthe from the death of the tastator 4a . \ 4e(a : treated aa batag prima facia tho a) thot 1} waa rveslvabie. But as Kay J. pointed out in Si1ke v» Bannister(30 Ch D 512,519), the presumption d@ inapplicuble whare the gift 18 by express werds vested not at the toutator's death but on the death of someone expected to live after him wee-93 In this caso,the widow. Hhat haa the poriod of 12 montha after the testator''s dezth to do with a gift to take effect on the widow's death £ What haz the period of 13 montha to do with real estate that is nos vastod in the executors at 811 J Kere the testator having in the first part of the will directed divieion among his children /then surviving" '(at the widew's death)——~a gift not vested in any shild tut dependent on & vontingsnay———,heving excluded these children who might die before the widow, mitigates the exclusion by eaying a8 to thove children who may Hurvive the widow that their children(iz aayj--—not the brothers and Sisters surviving----shall tale the paront's share. The atecutorst your i mot relevant to this real estates Howaver,an cunce of attention to the particular will in question is worth @ hundred-weight of m authorities" as to other wills. The best way,, 2 think,ie to state summarily the provisions of this sill? The three executors are te soll the sheep on tho station,and,on the proceeds of hal?,the tostator's cobte ete are charged. 421 the furniture ,moneys,eta are given to the widows The gaz shares are given to the(infant)daughter Toeys _ Bae residence at Guildford with 75 acres is devised to tho widow for ldia,thon to Icey in fae. Myrtle cottage fo given to. Leyes The station and half the chesy axe given to the son RoJ.Barbere The property dn question,at the corner of Church and Gaorge atraata Paramatta,is givon. to txustess who ore to divide the xeat#,and on the stheks pict Aolis widow's death to sell the property and divide the proceeds(as alraady Btatedje Te the trustess are also devised a two-story house in George 8%, 4 hewse cocupied by Rabter,and & house oooupiad by suhley,upon trust for grandohildran,the isaue of the son Charles(with power to 8011}. To ths trustees are devised 200 sores of land upon trust fox sale zie after the death of the testator and to divide the proceeds between the mt widow and the ix chiidren(aa sirsady stoped)? fhe property in Charias 2t Poramstta ie devised to Lydia. Yhe residue of the read wotate is i. deviaed amongst" the widow and the Sis. children as tenants in comnon.Ho trostesa are interposed. Theraceipta of the trustees are to be sufficient discharges Zor ali noneys paid to then *on account of my e¢tate" 2 a1 devises and bequests for females are te be for separate use. Then follows the substitutionary I elaase mhich have statad. I quite concur with Mr Devidon that the phrese "pefore diatribation be at By sxtatol wold natarally lead ue to expect to find some one diatrtintion eoatenpiated by the ailijbut there 48 ne auch one five fortieth aay hate Aistribution sontenplated« The "aiatributicn" referred 'topannot mean the the distribution by the will at the death of the testator, for one " . - Gisteibution. (that of the prooesda of the 300 sexes) ,how to be made at the death(or completion of the sale on the douth),and another distribution haa to be made of the progeeda ef the property now in gisstion ad some. tine Subsequont< Por 'Tne clensa makes a distinetion between chiléran 'A@e predegease me leaving issue" youd obildren bs who depart this lifs before Aistripation of py ostate leaving inoue" soviden distribution Bebseqient to the death, The question ia to what Glatripetion of what property oan the phrase refer? It cannot refer to any distrimtion Gxt; exoopt to the distritution{ajef the procesds of the shennan at the gornar of Church 8¢ and George St, the property as to which this question is asked and(bjof the prouseds of the 200 aczessfor there ig no other distribution oxdered by the wilh brong the testater's children ,and the olause aeoemiarily applies te distriimtion among the children only,'a—< ty deohicbvhan ft Jrerende reek sehobe mls (99 Mere. aa "spon th te sbi), It 19 true that there ia alfo a devise of cortain houses on oartain traobs fet grandohildren,ohildran of the testator'a con Charles ,with o x - Te Dees: to Bolljout this mubpeth tutionary provision atpress} j Spphies Se the Qsath of any of the tetator's ohtldren,and not to the death of any of baa zal ndohijdrans For(b) special emiivion is made Cr een te smlokhuhonsry rove flrs cp eah Srey foto f fe okcbrlion of dectaaed hither, and the result is thet the substitutionary provisiongig, if 4% is to be ts given any effact at all ,sust apply to (a) the distribution of the procesas of tha property now in question? Lam therefore of opinion that the aubstitutionary clause applies te this property,and that the capital proceeds thereof should as to one wit be paid to Mrs O'Gonoz,and as to tHe other half should be tributed between Era O'Oonor and the grastonildaren born to her srothers. and sisters and Living at theix respective deaths equally por ibispess this opinion accords vith the decision of Harvey J) X my poins out in addition that this construction does no violence to any rords of the willjthat there ie no difficulty in implying im the wil? iter the words "pefore distribution of my avtate" fords such as 'herepver there has to be diutribution" sand that "thewii1 does nok apeak tithe distribution' ae if it wore sono dofinite single distribution, * . * . mat Speaks of distribution in the abstract. _O Gtoreover in the trustecs" rogeipt claude the tectator dos the lords "wy estate" in the aano vague indefinite manner as in the J Be 3 onary giaas. The whole dittioulty would yanish indesd,i? the : ® word "my" in the jatter clause oculd bo fund to ba & mistake #62 any" in eopying ;but- one cannot act on such & surmige. St a late stege af this exse,wo ware inforned by counsel for the $tustes company that in 1695 this very queution was raised. in a suit in Garner Pronbr, the Supreme Courts It waa not then snawersd bat further consideration decree and liberty to apply were reserved by the éemseted—ozder, It was desided aoe the share of Kid. Barber 4m the provesaé. of wale of the teatator's. a an XOal estate belonged,on that son's death ov Lithticr 1891, 44 'to hig children in equal shared.We do not keow how the reuddnary read eetita Game: to be sold at alijand we do not know on aaah geet the Genz Aotedjor wiy this, summons became nogesaary 4a. there wot already a . h t rtair : a wes hth Spitonnt, for. ordiderahen lier dts re's ah deanetal-erder, But as the, qodetion vod not answered there ig asthing to @onglude 'the.cignta of the parties to $he present sunmaié. in respect of the proeeeds of this property in Church and George streets. T aw clearly of opinion that this gppeal should be a@iomiased¢