IN TEV MATTER OF THE WILL OF MICHAEL MULCAHY. RICH J. LL OF MIGHAGL MULCAHY. IS THE SURGUENT. I agres with the jud, 4 of the Chief Justice, I desire to add that in cases where infants are oon- cerned great care should be taken that competent persons having no interest adverse to that of the infants are appcinted as guardians ad litem and that except by leave of a Judge g distinct and inde- pendent solicitor shpuld appear for them. The_only questions raised by this ageeal ars whether deettes Dr por Was fight in holding that under the will of Uiehael tulecaly the aur, slus income ofdinterest accruing on the shares of the ehildren must be added to the original share cf auch children respectively and devolved ay if 1% formed part vf auch original share. Sesondly woetver he was right in deciding that the trustees of the will bave no pewer to pay Danial wuloahy vy way of advancement or by way of prewiun the sum of £750 or any part thereof as requested. The petition on which the order wos wade raised certain ether questions Miceek ave tot Sha tutpeet fat wa aayrve ou the construction of the will(as to wich it ig/Hct within the pro- vince of this Court to express a judicial opinion, @oa I rofrain from uving 80. In my opinion the learved Judge arrived at a right conclu- sion on both questions covered by this appeal. As to the first I think clause 6 of the will contains.s reasonably elear direction that so much of the income aceruing on a sons share before he attains the age of 25 years, or qualifies for either of the professions mentioned ,a8 shall not have been applied for his maintenance education and advancement shall be added to the corpus of such share and thenceforth form part of such corpus. The beneficial interest of the gon in such share is to receive tue income thereof during his life. On his death leaving issue the share igs to be divided amongst his children in equal shares end on his a dvath without issue injosrtsin specified event the corpus of the share gees over to his brothers and sisters and the issue of any devcass brother or sister. In these circuustances I think it 18 clear that the son hag no right to the surplue income of his share aveumulated wefore he eithor attained 25 years of age or qualified for one of the named professions. An arguuent was adiressed to us founded on the provisions of section 45 of the Trustee Act 1900 and particularly on sub-section 3 of that section, I am inclined to think that the author—- ity given by that section extends ao further than to en Kp tors ploriefecr, bo disregard the twusteesprecatiene—as to what aisy be terwed watters 2 the Court of aJuwindstration. cub hows nicn that tis aay be T em clearly of no subbority can bs found ia that seotion fer taking peoperty froma « venefilciary to whom it i iven by the will and handing it over bo une to whoa it is acfae given, On & econd question aise IT Draper was cle . Ccnere fe ly right . The power of advancement in clause 6 of the will ie-siasely Gita ddooperative- in the casa of any son when he had qualified fer either of the professiona wentioned and in the present case it is clear that Dan- Ce ay taretact tone oti timers Bue Bare, ivl Muleshy da a0 qualified. Fis ee seushi—toapely the provisio: ng of ssotion 26 of Lord Cranworth'a Act te-this-eese Dut in my opinion KEI Kea See trot a . meee it 4s clear they had no applicationae' te; cbeceens oe Naa Cae, Tor these reasons I aw of uginion that the appeal should be Gisuissed. fag. IN Rw THE WILL OF MICHAEL MULCA v AnD Tm THU ETAE ACT 3g00. Tan of opinion that this geal should be dis sed. 1 uedire,hovaver,to guard mysel? avaiast any misunderstanding. The appellants, the trustoes of the will, impugn two only of the auswers given by the learned judge to the petition under section 45.0f the Trustee Act 1900 of Western Australia; and 1 regard these answers, (b) and (¢), as correct,ao far as me the mere interpretation of the Wil is concerned. The provision of paragraph 6 enabling the trustees to pay or make up a premium "out of the corpus of my son's life share in my rediduary estate" does not apply after the gon has already become a member of the yrofession. Under the sine patagraph,any surplus of the income of the son's share,after providing for his maintenance education aad advancement has to be invested,and until the son takes a "vested life interest" in the share,that surplus with any interest on the investment has to be added to the share and held by the trustees for the life of the son; and then the life shure in the residue is to be divided among the son's children{par.11),or,if he leave no issue, the share is to go to the surviving children of the testator and their isoe(par.12). Gasea such as Saunders vy. Vautier (4 Bev.115; Or & Ph 240) do not apply, becouse persons other than the son - grandenildren of tho testator yorm or unborn,- are interested ia the corpus aad surplus incon PS There io no apveal from that part of the order of the learned judge which declares (a) that "euch of the children of the testator attained a vested life interest in the residuary estate upon tho testator's deatat t is nob necessary,for the yurposa of our decision, to decide whethor this answer is correct or not. 80 far as it goos,it is in favour of tho argumont of the trustees in support of the power which they claim. But I am not sure that I should come to the same conclusioa on th Taere is mich in favour of the view that the life share of the gon_ vetoes" vested" junder paragraphs 11 and 12,when the son attains 25 or qualifies for the profession at an earlier age. So far as to the mere interpretation of this will. Put sec.45 of the Trustee Act 1900 does not confine the powers of the Court to the terma. of the will as truly interprotod. It contains a provisioa in subsection 3,which enables the Court, to sane extent at any rato,to over ride the provisions of the will - to make an order which is (not merely additional,out)contrary to the will - "any order may be made under this section notwithstanding anything to trust: Provided that such order is,in the opinion of the Court benoficial having regard to the estate and all persona or the majority of perseng interested therein". Taia traordiaary powevt may be invoked some day on appropriate facta; tat,in my opinion,none but extraordinary fasts would be appropriate, under this will,for an order such as that sought by Dr D 'sMuloany. There are cases,familiar to practising lawyors,in which a literal adner gnce to the words of a will wight leave a benoficiazy to starve while the corpus of his share is to be increased by accumlations; or in which the intecasta of grandchildren would be best served by allowances from a thoiz moneys to their parants, ive this merely as an illustration, fot as a deflaition of the ambit of the powor; for I do not think that Wo are antijled to place any limitation on this power conferred oa tha Supreme Court that is aot placed by the legislature itself. tubsection (1) Covers the subject mattors in respect of which that Court may make an order,and it covers even the purchase of land for the protetioa or improvement of the trust estate; subsection (8) enables the Court to say against whose interest any exjenditure is to be charged; and subsection. (3) allows an order to be made which io directly contrary to the instra- moat. This subsection (5) does not make it a Condition that the order Shall be for the benefits cf all the yrsons interested,or of a majority of the porsons inteftested,obut merely directs the Court,in exercising its discretion, to have Tegard to the benefit of such persons, But here the beneficiargsa merely wants to add a French degree to his other dezr es; and he does not even say that he wishes to preotiffo in France or under Trench law, For aight that we are told,the French degree may be a mere feather in the cap. To make such an order under such circumstances for application of the acoum lated surpiva income of the share - atoumlatdons which ia no contingency belong to the son himself - would not in mz opinion,be a proper exercises of the discretion of the Court. & very wide discretion ia given to the truatess to apply as much as they think £it of the income fer the maintenance education and "advance enent" of the gouj bat when they have once throwa the aurplus of the income into the same fund as the coryus of the share, so that it belo to the remainder ~ man and not to the son, it looks like robbing Peter to pay Punl to deflect 4% from the tful owner. And tna rightful owners hexs are patsons who are infants or unborn.