THE BALLARAT TRUSTEES & EXECUTORS AGENCY CO. LTD. V. PUBLIC TRUSTEE & ORS

0.19280/45

1 B, Daw, Gor. Print., seb.

BQ Saag \F

IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Judgment delivered at.

on,

PUBLIC TRUSTEE & ORS.

ORDER.

Appeal dismissed. Costs of all parties of the appeal as between solicitor and client to be paid out of the estate of the deceased other than the share of the estate to the imcome of which Mrs. Surman is entitled.

THE BALLARAT TRUSTERS & MXECUT@:S AGENCY LTD.

Ve

PUBLIC TRUSTEE & ORS.

REASONS FOR JUDGMENT LATHAM C.J.

co. THE BALLARAT TRUSTEES & EXECUTORS AGENCY/LID.

Ve

PUBLIC TRUSTRE & ORS.

REASONS FOR JUDGMENT LATHAM Cede

This is an appeal from a judgment of the Full Court of the Supreme Court of Victoria affirming an order of Lowe J. made upon an originating summons raising questions as to the construction of the will of the late Thomas William Cowley. The. testator made his will on 5th June 191) and died on 26th November 191k. The date of the will is important because it contained provisions for benefits to grandchildren and the testator declared that the expression "grandchild" or "grandchildren" should be deemed to include only such as should be living at the date of the execution of the will and that only such grandchildren should be entitled to share in the distribution of income of corpus. At the time when he made his will the testator and his widow were 7 years of age. They then had ' four children, all of whom survived the widow,who died on 20th September 1921. The eldest was 52 years of age and the youngest 43 (it was therefore probable that some or all of the children would survive the widow). Some of the testator's children had predeceased his wife but they left no children. Three of the children named in the will died after the widow leaving children. One child, the

wespondent Margaret Catherine Surman, is still living. Nineteen of the grandchildren were living at the time of the execution of the