Oesterlin v Sands [1969] HCA 70

High Court of Australia McTiernan, Kitto and Menzies JJ. Oesterlin v Sands [1969] HCA 70

ORDER Appeal allowed. Decretal order of the Supreme Court of New South Wales varied by omitting the declaration therein contained and substituting therefor a declaration that upon the true construction of the will of the testator and in the events that have happened the 5,760 shares in Crockett & Co. Pty. Limited mentioned in cl. 10 of the said will are held by the trustees of the said will upon trust for the appellants in equal shares as tenants in common absolutely. Costs of all parties of this appeal as between solicitor and client to be paid out of the estate of the testator.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 12 McTiernan J.

I am of opinion that this appeal should be allowed.

I have had the advantage of reading the judgments and reasons of my brothers Kitto and Menzies and concur therewith.

Kitto J.

This appeal relates to the will of one James Crockett deceased, who at his death was the governing director of a company called Crockett & Co. Pty. Limited. The will, after disposing of the whole of the testator's estate except a parcel of shares which he held in the capital of Crockett & Co. Pty. Limited, made the following provisions concerning those shares:—

My principal remaining assets are 5,760 shares in Crockett & Co. Pty. Limited of One Pound each. They have an asset value I understand of over 30/- each today.

These shares are not to be sold or realized on but are to be held by my Trustees in perpetuity and only the dividends accruing on them from year to year paid as follows namely one third to my wife and one third each to my two daughters all as aforesaid. If and when any one of the three foregoing legatees under this clause dies her share is to be held by the trustees and invested by them if they think wise in shares in Crockett & Co. Pty. Limited at par when such shares are available or in Trustee securities so that if the Company continues and flourishes there will be built up from the dividends on these shares a substantial fund which shall be held in trust for the employees generally of Crockett & Co. Pty. Limited and administered by my executors and trustees in their interests. Note: I do not mean in the interests of the Directors exclusively or unduly but in the interests of the whole staff, although for the good of the business I direct that those Directors present or future who have a small share holding such as Mr. Wheeler should be assisted out of this fund substantially to acquire a larger holding and in the event of a very deserving young man such as I believe Mr. Neville Lee to be continuing efficiently to serve the Company he be appointed a Director and assisted to acquire Director's qualifications out of such fund. I request the co-operation of all shareholders and Directors to make this plan outlined above a success because I have always felt that I should like to do something of this kind for the benefit of my co-workers in the business small or large and the award to individuals from time to time from the fund should take into account the years of service more perhaps than the eminence in position I should like to see Crockett & Co. Pty. Limited continue for many years because it has an honourable name and because the provisions which I am seeking to make herein should make for joyful co-operation on the part of all its employees.