De Little v Byrne [1951] HCA 62

High Court of Australia Dixon, Williams, Webb, Fullagar and Kitto JJ. De Little v Byrne [1951] HCA 62

ORDER Appeal allowed. Set aside so much of the order of the Supreme Court as answers questions 1 to 7 in the originating summons. In lieu thereof order that the said questions be answered as follows:— Question 1. For the purpose of ascertaining the income of the estate, both profits made and losses incurred by the partnership are to be disregarded save that amounts which the trustees are entitled to receive as partnership drawings on account of profits in accordance with clause 29 of the partnership deed should be treated as income of the estate and, subject to the rights of the annuitant, distributable among the life tenants. Question 2. An amount calculated in accordance with the answers to questions 1, 3, 4 and 5. Question 3. The annuity is payable out of the net annual income of the estate and the arrears if any of any year are payable out of future income derived prior to the death or remarriage of the said defendant whichever first happens but are not charged on subsequent income or on corpus. Question 4. The annual income of the estate includes the amounts received by the trustees from the partnership in accordance with clause 29 of the partnership deed and all other income actually received. Question 5. The said defendants are entitled, subject to the rights of the annuitant, to receive between them in equal shares in each year the actual income derived from all these assets. Questions 6 and 7. Unnecessary to answer. Order that the costs of all parties of this appeal as between solicitor and client be paid out of the residuary estate of the testator.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 22 Dixon, Williams, Webb, Fullagar and Kitto JJ.