Permanent Trustee Co of NSW Ltd v d'Apice [1968] HCA 29

High Court of Australia Kitto, Taylor and Menzies JJ. Permanent Trustee Co of NSW Ltd v d'Apice [1968] HCA 29

ORDER Appeal allowed. Decretal order of the Supreme Court of New South Wales varied by omitting therefrom the declaration that upon the true construction of the will of Mary Riley deceased and the events that have happened the trustees of the estate of the said deceased hold the whole of the assets of the said estate upon trust for the next of kin of the said deceased and substitute therefor a declaration that upon the true construction of the said will and in the events which have happened the said trustees hold the whole of the assets of the said estate upon trust for the Permanent Trustee Co. of New South Wales Limited as executor and trustee of the estate of Lillian Charlotte MacIntosh deceased. Costs of the appeal of all parties as between solicitor and client out of the estate of the said Mary Riley deceased.

Cur. adv. vult.

The following written judgments were delivered:—

May 27 Kitto J.

In this appeal from a decretal order of the Supreme Court of New South Wales in its equitable jurisdiction we are called upon to interpret certain provisions in the will of Mary Riley deceased who died on 3rd September 1920. The provisions are made in the first instance in relation to a house property, number 173 Macquarie St., Sydney, and are then made to apply to the residuary estate also. The will is obviously drawn with professional legal assistance. Its dispositive provisions begin with a devise and bequest of the whole estate to trustees, and after some pecuniary bequests have been made trusts are declared with respect to the house property. These trusts are in four stages. First there is a trust to receive the income, pay thereout all outgoings, and pay the surplus to a grand-daughter, Maud Harper, for and during her life. Secondly there is a trust "after her decease" for her children and remoter issue born in her lifetime, in such shares and proportions and in such manner as she shall by deed or will appoint, and in default of appointment for all her children living at her decease in equal shares as tenants in common, and if there shall be only one then for that one only; provided that if any child of hers shall die in her lifetime leaving issue such issue shall take their parent's share. Thirdly, if there should be no such child or issue (i.e. of Maud) "then" the property is to be held upon trust "after the decease of the said Maud Harper" to continue to receive the income, and after payment thereout of the outgoings to pay the surplus to three named grand-daughters of the testatrix (sisters of Maud Harper, named respectively Ruby, Frederica and Lillian) during their joint lives in equal shares as tenants in common, and "in the event of the death of any of them" to pay the surplus to the survivors of them during their joint lives in equal shares as tenants in common. Fourthly there is a trust "immediately upon the death of one of such survivors" then to stand possessed of the house property upon trust for the last survivor of the three named sisters of Maud absolutely.