BONE AND OTHERS V. EXECUTOR TRUSTEE AND AGENCY COMPANY OF SOUTH AUSTRALIA AND ORS. 2/1938

"of 1938-2

'IN THE HIGH COURT OF AUSTRALIA aT

BONE AND OTHERS. |

OF SOUTH AUSTRALIA AND ORS.

REASONS FOR JUDGMENT

Judgment delivered wet

MO ntiy Qi

y iD stale

Wana sil) ORS.

Order

Ap, eal dismissed, Judgiwent oi Supreme Court ariirmec. ap eliunt

to pay costs of appeal to High Court of respondent tue Executor Trustee aid Agency Company of South Australia Linited and of respondent, tue Public Trustee, the said coupany to be entitled to tase out o1 the estate of the deceased the ditverence between its

costs of th

e

aly@al recovered by

it from tne apsertants and its +

costs of tne appeait as between solicitor and client.

BONE AND ORS. v. EXECUTOR TRUSTEE AND AGENCY COMPANY OF SOUTH AUSTRALIA LIMTTED AND ORS.

Reasons for Judgment The Chief Justice.

BONE AND ORS. ov. EXECUTOR TRUSTEE AND AGENCY COMPANY OF SOUTH AUSTRALIA LIMITED Aun ops,

The Supreme Court of South Australia ( Angas Parsons and Richards JJ., Murray C.J. dissenting) has held that under the will of Charles Mallen deceased the beneficiaries who were entitled to the income rents issues and profits arising from 'shares of the rest and residue of the testator's estate were properly paid sums representing 85 per centum of the profits of the testator's business which was carried on by his créditors under the directions contained in the will. An appeal from this decision is brought to this court.

The testator gave all his real and personal estate to his trustee upon the tuste declared in the will. Provision was made for certain specific lagacies and annuities. A trust to carry on the testator's business as a brewer was declared. The business

and several was to be carried on during the joint/lives of the testator's five name@ children. The trustee was directed to deduct from the net annual profits 15 per centum thereof for the purpose of forming a special fund for the use of the said business and for the : purpose of extending and increasing it. The business has been profitable and has been carried on for many years, the testator having died in 1909. The question which arises upon this appeal relates to the disposition of the remaining 85 per centum of the profits of the business. Directions were given by the will as to the management of the business. After the decease of the five children the trustees were directed to invest any monies belonging to the estate in such securities as would tend to increase and prosper the business. Then follow the provisions which raise the question for determination of the Court :-