i ; } THE PERPETUAL TRUSTEES EXECUTORS AND AGENCY CO.OF TASMANIA LTD, ve. MITCHELL AND OTHERS. MR_JUSTICE RICH. HIGH COURT OF AUSTRALIA. PRINCIPAL REGISTRY, MELBOURNE. Memorandum for:- The District Registrar, High Court of Australia, HOBART. MITCHELL V. THE PERPETUAL TRUSTEES EXECUTORS AND AGENCY COMPANY OF TASMANIA LIMITED AND OTHERS Referring to your memorandum of 12th Mayi942, I have to inform you that the abovementioned appeal came on for hearing this day before the Full Court consisting of Their.Honours the Chief Justice and Justices Rich, Starke, McTierman and Williams, Mr. Ham K.C, and Mr. T,W.Smith of Counsel appeared for the appellamt, and Mr. S.C,Burbury and Mr. D.M,Little of Counsel for the respondent The Hobart Benevolent Society. There was no appearance for the other respondents, and His Honour the Chief Justice directed that an affidavit of service of the notice of appeal be filed. Mr. Ham K.C. addressed the Court from 10,30 a.m. until 12 noon, when the Court intimated that it did not desire Mr. Burbury. His Hdnour the Chief Justice thereupon delivered oral reasons for judgment with which the other Justices agreed, The order of the Court was as follows:- "Appeal dismissed with costs." The Court papers have been returned to you under sepabate cover, Deputy Registrar, HIGH COURT OF AUSTRALIA. PRINCIPAL REGISTRY, MELBOURNE. 20th May,1942 MEMORANDUM FOR: - The District Registrar, High Court of Australia, Hobart MITCHELL V. PERPETUAL TRUSTEES CO. In continaation of my memomandum of yesterday's date, I forward a copy of the Reasons for Judgment herein delivered orally by His Honour Mr. Justice Rich. Deputy Registrar. cette olge peep' } ~ THE PERPETUAL TRUSTEES EXECUTORS AND AGENCY CO,OF TASMANIA LIMITED. MITCHELL AND OTHERS. Judgment. Richsd. I agree, By a rule that has been adopted for the sake of general convenience the Court holdsthe personal estate to be reduced into posses-— sien within a year after the death of the testator. Upon that ground in- terest is payable upon legacies from that time unless some other period & is fixed by the will. The basis of the rule is compendation to the legatees for delay in payment. Actual payment my,in many instances, be impracticable within that time: yet in legal contemplation the right to payment exists, and carrieg with it the right to interest until actual payment, Wood v, Penoyre,13 Ves, 326,333,334, The sole question, then, is whether any particular time is fixed by the will for payment of these legacies,or whether it leaves them to be paid at the usual time. There is nothing in the will express or implied which postpones the time at which the legacies would be payable according to the general rule. Tena Auk 2. I know of no rule which prescribes that interest is not payable on lega- weies until the time when the trust estate is sufficient for payment of them. Otherwise legacies would be m~yable in driblets as part of the trust estate was realised enabling payment to be made. Relevant examples of the general rule are to be found in Lord v. Lord,2 Ch.at p.7893 re Whiteley,26 T.L.R. 16,17 and Walford v. Walford, 1912 A.C.658, But Mr Ham relies on clause 7 of the will to exclude the operation of this gene- ral rule. I do not,however,think that the clause was intended to have or has this effect. It was inserted in the will to obviate any questions which might be raised with regard to the disposition of intermediate or interim "rents and yearly produce", These rents and produce fall into and become part of the fund designated'my trust moneys" and are applicable accordingly, The word "transmissible" is.a tedinical word aptly describe -ing the devolution of property by law, The notional conversion of the "unsold real estate" and its transmissibility as personal estate were in- tended by the draftsman,if there was no statutory provision in that behalf, to secure the passing to and vesting in the personal representatives of that the the testatrix of her real estate, I consider @ie/legacies are,in - ' n\effect, general legacies payable out oi residue,cf, re Yates,96 LT, 758, "'%61,t0 which the general rule applies, i agree that the appeal should be dismissed,