PLUMMER V. POLSON & ORS.

IN THE HIGH COURT OF AUSTRALIA

PLUMMER

POLSON & OTHERS.

ORAL

REASONS FOR JUDGMENT

Judgment delivered at____ SYDNEY.

HL Daw, Gor. Print, Meth.

Ve

POLSON & ORS,

RGASONS FOR JUDGMENT LATHAM C.J, (ORAL McTIERNAN J WILLIAMS Jy

WEBB Js PULLAGAR J.

PLUMVER 2 POLSON & ORS.

ORDER .

Appeal dismissed. Costs of parties to the appeal to be paid as between solicitor and client out of proceeds of the land

referred to in the codicil to the will of the testator.

at

PL POLSON & ORS

REASONS FOR J. DOME LATHAM C

The decision on this appeal depends upon the construc- tion of a provision in a codicil to the will of Robert Plummer, whereby he provided that a certain specified parcel of land should be held by his.executors in trust for the benefit of a erippled granddaughter who was the daughter of his daughter Alice Milligan. The codicil provided that if the land should be leased to one of the sons of the testator at a yearly rental, the rent should be used for the sole support of the said grandchild as long as she should live.

Then the codicil contained a provision which raises the question which calls for the decision of the Court - "On her decease I direct that the said land be sold and the proceeds equally divided amongst my sons then living and if deceased then in equal shares among their children." Two opposing construc- tions of this provision have been suggested. In the first place, on behalf of the appellant, it is argued that the words "and if deceased" apply to the event of all the sons being deceased at the relevant time - which was referred to by the word "then" in the phrase "then living". Plainly "then" refers back to the decease of the grandchild. The argument for the appellant is that these words mean that the latter part of the clause, namely, "and if deceased then in equal shares among their children", comes into operation only if all the sons of. the testator are deceased at the time of the death of the grandchild. That event has not happened. One son, but one son only, was living at the date of the death of the grandchild, and it is contended that therefore the second: part of the provision does not come into operation at all, so that the words of the gift which operate are simply these - "I direct that the land be sold and the