ABIGAIL AND ANOTHER V. PERPETUAL TRUSTEE COMPANY (LIMITED) AND OTHERS

6.12980/45

'HE. Day, Gor. Print., Melb.

oricinaL ~&

IN THE HIGH COURT OF AUSTRALIA

PERPETUAL TRUSTEE COMPANY (LIMITED)

AND OTHERS

REASONS FOR JUDGMENT

| Judgment delivered at__.._ Sydney... _ on__.. Thursday, 8th May19470000000

ABIGAIL & ANR.

ve

PERPETUAL TRUSTEE COM ANY (LIMITED) & MS.

REASONS FOR JUDGMENT.

LATHAM Cede

PERPETUAL TRUSTER COMPANY (LIMITED) & ORS. REASONS FOR JUDGMENT. DATHAM Cede

The provisions of the will which require interpretation

in this appeal may be set out as follows:— -in-law

(1) Income of the whole estate to wife, sister/and son of

the testator during their respective lives. -in-law

(2) After the death of the wife or sis ter/the income payable to either of them to be paid to the grandchildren, two- thirds to the grandson and one-third to the grand-daughter until the younger of them (the grandson) arrives at the age of 30 years.

C(3) No provision is made with respect to the disposition of the income payable to the son if he should die before the wife or sister or before the grandson arrives at the age of 30 years.)

(4) "hen" (that is when the grandson arrives at the age of 30 years) the trustees are to realise the whole estate and divide it between the two grandchildren, two-thirds

to the grandson and one-third to the grand-daughter.

{5) A codicil to the will "cancelled and cut out completely" any bequest or devise to the testator's son.

The son died in 1935. It was held by this court in -in-law

Austin v. Abigail, 49 C.L.R. 177, that the wife and sister/were still thereafter entitled only to one-third each of the income, not to one-half each. It was also held (p. 186) that there was no intestacy as to the income which would mve gone to the son if tl codicil had not been executed, that that income followed the fate of the corpus (p. 186) and that it was applicable to the 'maintenance of the grandchildren during their infancy.