Voges v Monaghan [1954] HCA 63

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Kitto JJ. Voges v Monaghan [1954] HCA 63

ORDER Vary the judgment appealed from by substituting for the words upon trust where they occur in the first declaration the words subject to a trust. Subject to such variation dismiss the appeal with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 18 Dixon C.J.

This appeal has caused me a great deal of difficulty, notwithstanding that it is in substance an appeal upon a question of fact and that the trial judge's disbelief of the defendant's testimony goes a long way towards disposing of her case. The principles governing the determination of appeals on questions of fact are in familiar use and are the subject of many authoritative statements, most of which recently in Paterson v. Paterson [1] we took occasion to collect. Consistently with them a reconsideration of the effect of the testimony of the defendant is hardly possible. But the root of the difficulty which I feel about the case is that I gravely suspect that the conclusion that has been reached is not in accord with the actual facts of the case. To make their respective cases it was necessary for the plaintiffs to establish a state of fact, the chief elements of which were that the testator had a definite intention that the defendant, as his executrix and universal legatee, should be bound to pay to each of them respectively three pounds a week during her lifetime, that this intention was communicated to the defendant during the testator's lifetime, that she expressly or impliedly undertook the obligation, that is either by agreement or acquiescence, and that on the faith of her carrying out his intention he made his will as it has been admitted to probate or left it unrevoked. As Viscount Sumner said in Blackwell v. Blackwell [2] : "The necessary elements, on which the question turns, are intention, communication, and acquiescence. The testator intends his absolute gift to be employed as he and not as the donee desires; he tells the proposed donee of this intention and, either by express promise or by the tacit promise, which is signified by acquiescence, the proposed donee encourages him to bequeath the money in the faith that his intentions will be carried out" [3] . But all these elements must be established to the reasonable satisfaction of the court. The evidence may be circumstantial or it may consist in admissions by the legatee upon whom it is sought to fix the trust, and the admissions may be express or by conduct or the proof may consist in both admissions and circumstantial evidence. When the issue is contested it will seldom include direct evidence of what passed between the testator and the legatee. But, in particular, the evidence must prove satisfactorily that the trust was ascertained and what it was. The present case is, to my mind, of a most peculiar kind. Immediately after the death of the testator the defendant appears to have been filled with anxiety to tell various people that the deceased had provided for them or made bequests to them of this or that article. Among statements of this sort made by her there are some strong expressions affecting the plaintiffs. For example, to the sister of the testator she wrote: "To Mrs. Answerth Mr. Gill has left £156 per annum to cease at her death". And to that plaintiff herself, she wrote: "I am sure you must have a contented feeling when you think what Mr. Gill's gift will mean". The trouble about all these statements is that they go too far; they would not naturally be understood as meaning that the defendant had succeeded to the estate, but had agreed with the testator to pay the annuities or either of them, and they were not so intended. Moreover, the same letter to the testator's sister speaks of a number of gifts of personal articles as made by the testator when it is almost apparent that the defendant is inventing for the testator various small specific bequests she might have wished he had made. The circumstances of the case as they appear in evidence seem altogether to lack background. You feel that you do not understand why the testator made the will he did, where the defendant really stood in relation to the testator, his wife, his household and his business, or what were the motives by which the various persons concerned were animated. Clearly enough commonplace explanations do not fit. To me it looks as if for some reason or other the testator thought that he could project his own control of his financial and business affairs beyond death through the defendant and that what he wished to do was to leave her in possession of all his assets completely confiding in her and feeling certain that she would meet the moral claims upon him of his wife and his relatives and his dependants just as he would have done, if living, and according to circumstances as from time to time they changed and developed and that otherwise she should have beneficial ownership and enjoyment. Why this should be so the complete absence of information giving reason and coherence to his conduct leaves me quite unable to guess. Nor do I understand precisely why she wished to represent that he had made actual bequests, including the two annuities, or, at all events, one of them. No doubt he discussed with her what was the proper thing to do about his wife and the plaintiffs and probably notes were made of his views. No doubt she built up a body of circumstantial evidence that can be used against her in the present case. For my part, I think that she cannot complain. She has no one but herself to thank for the conclusion which the Court has reached both here and below. But in spite of her statements and the course of conduct she has pursued I would not myself be satisfied that the testator placed her under any sufficiently ascertained trust in relation to the two plaintiffs or communicated to her an intention on his part that she must pay to either of them an annuity out of the estate during the life of the recipient and independently of her own discretion or the condition of the estate. Though not without hesitation I would reach the conclusion that the decision under appeal should not be allowed to stand.