R.) OF AUSTRALIA. 571 (HIGH COURT OF AUSTRALIA.) KE-BROCKMAN AND ANOTHER. . APPELLANTS ; . AND ORY . : A : : : ' . Responpent. ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA. Construction—Share in partnership—Gift by will—Condition—Election to H.C. ov A. _ purchase under partnership deed—Intestacy. 1920. By his will a testator, who was a partner in a trading firm with his pyoiy brother, bequeathed to the latter his share in the partnership business on coy g/g "s condition that the brother should pay yearly a portion of testator's share in the =~ —___ profits of the business to his mother, his wife, or, on the latter's death or re- Knox C4.. marriage, to his daughter ; the remaining portion was to be retained by the Gavan bulty brother, who was appointed executor of the will. 'The brother, in pursuance *"* "ch +7- of a right contained in the partnership deed, elected to purchase the testator's share in the assets of the partnership. Held, by Knox C.J, and Gavan Duffy J., that there was no intestacy by reason of the election of the executor to purchase : that the gift of the share operated as a gift to the executor of the amount payable by him as the purchase money of the share and operated to pass to him the purchase money with no further burdens than he was content to assume. By Isaacs and Rich JJ. : (1) whether the gift was taken in its primary or 'its secondary form, the condition on which it was offered must be observed ; (2) but as the executor had elected to purchase and had purchased the share under the partnership deed, independently of the will, he necessarily rejected _ the gift; (3) the gift thereby entirely failing, there was an intestacy as to 'the share. - Decision of the Supreme Court of Western Australia: In re Gregory, 22 H.C. or A. 1920. YL Drake- BrocKMAN v. Grecory. HIGH COURT [1920. Apprat from the Supreme Court of Western Australia. By a deed of partnership in a pearling business carried on under the firm name of Gregory & Co., made on 27th January 1915 between Ancell Clement Gregory and his brother Fleming Clement Gregory (now deceased), it was agreed (inter alia) that in the event of the death of either of them the surviving partner might, if he so desired, purchase the deceased partner's share in the capital and assets of the partnership. By his will, dated 12th November 1915, Fleming Clement Gregory provided (so far as material) as follows :—" Any moneys due to me or arising from my insurance policies with the A.M.P. Society I leave absolutely to my wife Alice Gregory of Perth W.A. and in case of her death or remarriage to my daughter Patricia with the wish that she will invest such in the firm of Gregory & Co. pearlers and traders of Broome. My share in the registered trading company Gregory & Company of Broome W.A. I leave to my brother Captain A. C. Gregory of Broome W.A. on condition that he pays one-quarter of my share in the profits yearly to my mother S. Henson during her life, one-half of my share in the profits to be paid to my wife Alice during her life. This one-half to revert to my daughter Patricia on my wife's death or remarriage and in case of the death of both to revert to my brother Captain A. ©. Gregory. The other one-quarter to be retained by my brother Captain A. C. Gregory of Broome W.A. whom I appoint sole executor of this my will and guardian of my daughter Patricia.'' Ancell Clement Gregory had elected to purchase the share of the deceased in Gregory & Co. The testator's widow had remarried. An originating summons was taken out by Ancell Clement Gregory for the determination of certain questions that had arisen in the administration of the testator's estate. On the hearing of the summons the following questions (inter alia) were referred to the Full Court :— (b) Whether in view of the fact that the executor (as co-partner of the deceased) has elected to purchase the deceased's share in the partnership of Gregory & Co. there is an intestacy in respect of that share. (c) If no such intestacy, then (i) whether that share is vested in the executor absolutely subject only to the payment to S. Henson 6 C.L.R.} OF AUSTRALIA. ein mentioned, and if it be conditional what is the effect of the ecutor having elected to purchase the deceased's share in the tnership. "The Full Court decided question (b) in the negative : the partner- ip was dissolved by the death of the testator, and he must be en to have known that would be so; the share of the deceased the partnership was therefore a share in the assets of the partner- after providing for all the debts and liabilities thereof, and that t is which is the subject of the bequest relating to such share. In ver to question (c) (i) the Court decided that in the events which have happened one-half of the testator's share in the partnership of & Co. vests in the executor absolutely subject only to the ment to S. Henson during her life of the share of the profits mi tioned in the will, and the other half vests in him upon trust for e daughter of the deceased. In view of the foregoing answers, no er Was given to question (c) (ii) :—In re Gregory (1). The testator's widow (Alice Drake-Brockman) and his infant 'hter Patricia Gregory (by her guardian ad litem, Edward Arthur lith), the defendants, now appealed to the High Court from the ion of the Supreme Court. Downing, for the appellants. The provision in the will in respect of the disposition of the share in the trading business was made on the sumption that the executor would continue to carry on the business owner of part of it and as executor in respect of the other part ; is is clear from the words the testator uses in disposing of it and from the wish he expresses in the preceding clause as to the invest- it of the insurance policy moneys. The Supreme Court dealt with the case on the principle that if an interest in or proceeds of money e devised without any reference to time, the bequest is only as to fits, not as to\the share itself. There is no residuary gift in the and the money produced by the sale of the testator's interest the partnership goes as on intestacy to the wife and pase (1) 22 W.ALLR,, 19. and the widow and daughter and what interest the daughter takes ; H.C. or A. 1920. ~~ Drake- Brockman Grecory. H.C, or A. 1920. —— Drak BRocKMAN v GREGORY. HIGH COURT [1920. [Isaacs J. The rights of the parties under the will are as to the unpurchased share. As to profits see Nicol v. Chant (1), and see Beddington v. Bawmann (2) as to the interpretation of a will.] The gift of the produce of a share for an indefinite term is not a gift of the share (Hawkins on Wills, 2nd ed., p. 162; In re Lawes- Wittewronge ; Maurice v. Bennett (3). [Ricu J. referred to Vyse v. Foster (4); Hordern v. Hordern (5).) Pilkington K.C, and Leake, for the respondent. The option of the executor was to purchase as at the date of the death of his partner. From that date he was the owner of the whole business (Partnership Act 1895 (W.A.), sec. 55 (1), (2) ). Here the option has. been duly exercised, and he is not bound to do more than pay interest from the date of the testator's death. As to the construction of the will, the words " my share in the registered trading company " cannot mean literally his share in the partnership, because the partnership is ended. "Share" does not necessarily import that the partnership business is to be carried on. " On condition " imports the creation ofa trust. ' My share" covers share in the net assets whether of a going concern or in liquidation. There was an option, and what the testator proposed to deal with was subject to an option given prior to the date of the will. That imports a gift of the proceeds of the option, if the option be exercised. [Counsel referred to In re Pyle; Pylev. Pyle (6).] A gift of the share would carry the sum realized on sale ; it is immaterial whether the sale is to an outsider or to the executor: the sum which the share realizes at sale can, in either case, be clothed with the same trust. The beneficiaries the testator had in mind were his mother, his wife until remarriage and his daughter : on the respon- dent's construction those three will be benefited in accordance with his general intention; otherwise, if it goes as on intestacy, the mother gets nothing, and the wife, who has remarried, gets more than an interest till marriage. The will does not give the power to the executor to carry on the business (Lindley on Partnership, 7th ed., p. 676). Whatever his rights under the will, the respondent is content to waive his legal position as to one-half. (1) 7 G.LR., 569. (4) LR. 7 HLL, 318. (2) (1903) A.C, 13, at pp. 17, 2 (5) (1909) A.C., 210. (3) (1915) 1 Ch., 408, at pp. 412-413. (6) (1895) 1 Ch, 724. CLR.) OF AUSTRALIA. 575 Downing, in reply, referred to the Administration Act 1903 (W.A.), H.C. or A. e. 14; In re Pyle; Pyle v. Pyle (1); In re Edwards; Jones v. 1920 w es (2). Draxe- Cur. adv, vult. ae GreEcory. 'The following judgments were read :— Sept. 16. 4 Kwox C.J. any Gavan Durry J. This is an appeal from a gment of the Full Court of Western Australia on an originating s raising certain questions as to the construction of will of Fleming Clement Gregory. The main question for ir determination is as to the disposition of a sum of money, yet ascertained, representing the amount payable by the uintiff (Ancell Clement Gregory) as purchase money of the share of the testator in the business formerly carried on by them in tnership. This business was carried on under a deed of partner- p dated 27th January 1915, the relevant provisions of which are ss follows :—" 1. The partnership shall be deemed to have com- as on the first day of January 1915 and shall continue until ted in manner herein provided." "6. The net profits of he business shall belong to the partners in the following proportions, is to say, the said Ancell Clement Gregory two-thirds and the d Fleming Clement Gregory one-third and they shall in like oportion bear all losses including loss of capital." "15. In the nt of death of either partner the surviving partner may if he so desires purchase the share of the deceased partner in the capital nd assets of the partnership upon giving to the representatives of the deceased partner or if they cannot be found to the clerk of Courts, e, notice of such intention. The price to be paid shall be the value thereof as standing in the books and disclosed by a balance- et to be drawn up for the purpose. 16. If the surviving partner hall not exercise the option of purchasing the share and interest of the deceased or the other partner as herein provided or if the vartnership shall be determined or expire during the joint lives of e partners the partnership shall be wound up and the assets tributed as provided by the Partnership Act 1895 but each partner all be entitled to bid at any sale of such assets by public auction." (1) (1895) 1 Ch., at p. 727. (2) (1906) 1 Ch., 570, at p. 574. H. C. or A. 1920. —— Drake- BrockMAaN v. GREGORY. Knox C.J.» Gavan Duffy J. HIGH COURT [1920. It is common ground that since the death of the testator the plaintiff has duly given notice of his intention to exercise the option of purchase conferred on him by clause 15 of the deed, but the price to be paid by him has not yet been ascertained. The will of the testator, after certain bequests which are not now in controversy, proceeds as follows :—"' My share in the registered trading company Gregory & Company of Broome W.A. | leave to my brother Captain A. C. Gregory of Broome W.A. on condition that he pays one-quarter of my share in the profits yearly to my mother S. Henson during her life, one-half of my share in the profits to be paid to my wife Alice during her life. This one-half to revert to my daughter Patricia on my wife's death or remarriage and in case of the death of both to revert to my brother Captain A. C. Gregory. The other one-quarter to be retained by my brother Captain A. C. Gregory of Broome W.A. whom I appoint sole executor of this my will and guardian of my daughter Patricia." The main question raised in argument may be stated thus: On the true construction of the will does the gift of "my share in the registered trading company Gregory & Company of Broome W.A." operate as a gift of the amount payable by the plaintiff as the pur- chase money of the share? The Full Court answered this question in the affirmative, holding that the plaintiff was entitled under the will to one-half of this amount subject to the payment to Mrs. Henson during her life of one-half of the interest accruing thereon and to the remaining one-half in trust for Patricia, the plaintiff having relinquished any claim he might have to the corpus of the last mentioned moiety. The appellant challenges the correctness of this decision, while the plaintiff is content with it and asks no alteration of the judgment. We are clearly of opinion that the bequest to the plaintiff operates to pass to him the sum of money in question, and that the will imposes no further burdens on him than those which he is content to assume. Under these circumstances it is unnecessary to consider whether the plaintiff is entitled to more than the judgment gives him. On the question whether this portion of the judgment is correct this Court is equally divided, and consequently, under sec. 23 of the Judiciary Act, the decision appealed from must be affirmed. O.L.R.) OF AUSTRALIA. the death of the testator, and as to this we need say no more n that having regard to the provisions of sec. 55 (2) of the nership Act the decision of the Full Court was in our opinion clearly right. Isaacs anv Ricu JJ. (read by Isaacs J.). This case exemplifies the propriety of applying the principles stated by Turner L.J., for the Privy Council in Doe d. Brodbeltv. Thomson (1), in the following "Tt is upon intention, either expressly declared or collected just reasoning upon the terms of the instrument, or evidenced by ounding circumstances, where surrounding circumstances can called in aid, and not upon conjecture merely, their Lordships el bound to proceed. The strict observance of this rule, unim- nt as it may be in particular cases, is of the highest importance, hen considered generally, with reference to the rights of property ; if it be not strictly observed, those rights will become dependent pon the mere arbitrary will of the Judges whose duty it may be to adjudicate upon them." Whatever the consequence may be in this ticular case, we feel constrained judicially to adhere to the strict e of consideration so laid down, and to interpret the words of the itor, and give effect to the acts of the legatee in relation to the in exact accordance with what the law requires. This is a case in which it is necessary, in order to understand the ubject matter of the will and the terms employed by the testator, the surrounding circumstances should be stated. Before April 914, when Fleming Clement Gregory went to England on a holiday, ell Clement Gregory was trading as a pearler at Broome and ing was his manager. Fleming enlisted on the outbreak of var, and Ancell admitted his brother into partnership in the business, ited to certain property of Ancell's, consisting of six specified els. The partnership deed is dated 27th January 1915, and was ecuted by Ancell in Australia and by Fleming in England. By e terms of the deed, it was provided as follows :—By clause 1 the ship, dated as from Ist January 1915, was to continue until ted as therein provided ; and provision was made applicable (1) 12 Moo. P.C.C., 116, at p. 127. VoL. XXVIII. 37 5i7 'The only other question was as to the profits made in the business H. C. or A. 1920. ~~ Drake- Brockman e. Grecory. Issacs J. Rich J. H. C. or A. 1920. Sy Draxke- BrockMaN v. Grecory. Isaacs J. Rich J. HIGH COURT [1920, to matters within the lifetime of both parties. The deed also pro- vided what the interests of the partners should be. As to capital it declared : " The partnership property shall be divided into three shares of which the said Ancell Clement Gregory shall be entitled to two shares and the said Fleming Clement Gregory to one share." As to profits it was provided, by clause 6, that " The net profits of the business shall belong to the partners in the following proportions, that is to say, the said Ancell Clement Gregory two-thirds and the said Fleming Clement Gregory one-third." Clause 10 provided that on 31st December 1915 and on 31st December in each succeeding year accounts should be taken, and the net profits (if any) should be divided. The event of death was provided for by two clauses (15 and 16), and the provision was twofold: first, "the surviving partner may if he so desires purchase the share of the deceased in the capital and assets of the partnership " in the manner specified, and "the price to be paid shall be the value thereof as standing in the books and disclosed by a balance-sheet to be drawn up for the purpose'"?; next, "if the surviving partner shall not exercise the option of purchasing the share and interest of the deceased . . . the partnership shall be wound up and the assets distributed as provided by the Partnership Act 1895 but each partner " (which, in this case, must read "the surviving partner ") " shall be entitled to bid at any sale of such assets by public auction." The contract, therefore, provided that the death of a partner inevitably (in the absence of any arrangement of those interested in his estate) involved the complete severance of the estate from the business. The survivor might purchase the interest either at a valuation or by offering at public auction the highest sum as the value of the joint property of the firm. But in any case the contract itself insisted on a sale of the deceased partner's interest. And a "sale" involves that the thing sold becomes thereby the property of the purchaser, and the price becomes the property—the new property—of the seller. Now, in November 1915 Fleming,' on service in England, made his will. After the clauses dealing with money due to him from the Army authorities and with insurance moneys, there comes the crucial provision, which says: " My share in the registered trading OF AUSTRALIA. Captain A. C. Gregory of Broome W.A. on condition that ys one-quarter of my share in the profits yearly to my mother id to my wife Alice during her life. This one-half to revert to y daughter Patricia on my wife's death or remarriage and in case e death of both to revert to my brother Captain A. C. Gregory. he other one-quarter to be retained by my brother Captain A. C. ." That was a direct gift to his brother Ancell of his 's) "'share in the registered trading company," but " on ion" that Ancell undertook the obligation of paying " one- ter of my share in the profits yearly " to the testator's mother, fenson, &e, The "share in the registered trading company " the one-third share in the capital, which at the instant of pposing he accepted the gift. The expression " my share in the its yearly " obviously refers to clause 6 of the agreement—the tor's share in the profits yearly being the one-third of the net its as ascertained by the yearly balance-sheet of 31st December hich he, while a partner, was entitled. Now, reading the whole of the will relating to the testator's share in the business, tural meaning is that Ancell is to take the share in the state hich it existed at the moment of the testator's death ; to take it, ly by authority of the will, as a gift; to step straight into the tator's shoes with respect to it, and, being thereby entitled to the stator's share of business profits yearly as provided for under es 6 and 10 of the partnership deed, to undertake to distribute share of profits yearly—which involves making them up as d by clause 10—among the testator's mother and widow (or hter) and himself in the stated proportions. That construc- involves the retention of the share in the assets of the business ly in the form existing at the testator's death, and involves i the return for the gift (called a condition) standing in the place the consideration that would be given if the contract were adhered ll be not purchase price but distribution of profits. '" Purchase was thus entirely eliminated from the scheme. Unless the are" is to be retained in its primary form so as to call into npany Gregory and Company of Broome W.A. I leave to my H.C. or A. 1920. ~ Drake- Brockman v. Grecory. Isaacs J Rich J. 580 HIGH COURT [1920. H.C. or A. operation every year clauses 6 and 10, the words in the will "my tl share in the profits yearly," which are on the face of them to be Draxe- constantly applied, would lose their force. It must be borne in Led ey mind that inasmuch as that share of profits is a share—as clause 6 Gregory. says—of "the net profits of the business," not of the testator's Teanos 3 capital share in the business but of the whole capital of the business, ich J. of both Ancell's share and Fleming's share, it is wholly inapplicable to interest arising from the investment of the proceeds of Fleming's share alone. That is even apart from the substitution of quite different terminology, which would be necessary to make " interest " equivalent to " share of profits," or to to make " profits in some other : "my share in the profits yearly" in this business " equivalent to particular business. The relevant section of the will contemplated Ancell continuing the same business; it did not and could not force that position on Ancell, but, judging by the words employed, the just conclusion is that the testator confidently expected it, and thought it sufficiently sure to build his arrangements upon, including his insurance moneys, which were clearly recommended to follow the fate of the business. That is one reason for holding that the share in its primary form, as it may be termed, is the true meaning of the phrase " my share in the registered trading company Gregory & Company." It need hardly be said that this reasoning involves the consequence that the gift to Ancell is so bound up with the obligation of the donee as to make the two inseparable so long as the business continues. The word " condition," though probably operating only as a trust, indicates the intention of the testator to attach the obligation to the gift to the extent that so long as the business continues and produces profits his mother and his wife or daughter shall share them, and that Ancell, taking as legatee, shall not enjoy the profits arismg by reason of the legacy to a greater extent than one fourth. In other words, whether Ancell takes the gift as a gift in the primary or the secondary form, his trust obligations are to operate. The Court cannot vary the — terms of a gift: Cujus est dare ejus est disponere (Brooke v. Garrod (1) ). But there is also another and equally cogent reason for holding that the secondary form of the share, as (1) 2DeG. & J., 62, at p. 66. 28 C.L.R.] QF AUSTRALIA. y with it any of the designated profit benefits to the mother or daughter of the testator. The second reason is this :—Assume, n that no profit benefits were given to the testator's mother, v or daughter, but that there was merely a gift of the share to ell, what in the events that have happened are Ancell's rights der the will with respect to that share? He was offered it as a He had the right, under the partnership deed, to obtain it y way of purchase. If he chose to accept it as a gift, it would at nee be his own property, and incapable of being the subject 0 { purchase by him. If, on the other hand, he chose to decline it as gift and acquire it by purchasing it, it would equally become his It is a natural and legal impossibility that a man should become either purchaser or donee of what is known to be already his pw property. Learned counsel urged that the purchase money was share in secondary form and could be taken as the gift. But esent case connotes the definite rejection of the gift. It is final, because the declaration of option under the contract is irrevocable re Blake ; Gawthorne v. Blake (1)). It does not matter with hat expectation he so acted ; the question really is, what did he doin fact? 'The rest is a matter of law (see per Kindersley V.C. in Frayne Taylor (2)). The case is entirely different from that put in argu- and supported by authorities—of a gift to A of property over n, A takes the property in its existing form ; if B does exercise his n, then that circumstance does not necessarily exclude A from g the property substituted for it. The result depends to some uch a case and the present is that A has there done nothing to refuse he gift, nothing inconsistent with his acceptance of the bounty ¢ d so far as he can obtain it. If, however, A were the devisee of a house over which he, and not a third person, had an option of se, and he, nevertheless, insisted on exercising the option, (1) (1917) 1 Ch., 18, at p. 23. (2) 33 LJ. Ch., 228, at p. 231. it may be called, cannot be held to pass to Ancell as legate, or to H.C. oF A. 1920, ~ Drake- BrockMaN Grecory. Isaacs J. Rich J. H.C. of A. 1920. ey Drake- BrockMan v. GREGORY. Isaacs J. Rich J. HIGH COURT (1920. that would necessarily connote rejection of the gift ; because it would be treating the property as not being his own, notwithstanding the testator's offer. Where a third person has the option—and it is the "third person " that is the important factor (see Weeding v. Weed- ing (1), Frewen v. Frewen (2) and In re Kerry (3) )—the devisee accepting the gift of the property as it stands at the testator's death accepts it as it is but subject to the possible transformation that may occur at a later date, and the law regards the date of exercise of the option as the date when conversion operates (per Lord Eldon in Townley v. Bedwell (4) and Chitty J.in In re Isaacs; Isaacs vy. Reginall (5) ). The option is not there the devisee's property ; the obligation of satisfying its conditions and parting with the con- sideration for it does not rest on him; he simply stands ready to receive from the estate whatever may come to the estate in respect of the property given, and, once received, that ends the matter. In the present case the option is his property ; but, being a right in respect of another person's property, he can only exercise it on the basis that that property remains another's; he pays out the con- sideration to that other person by his representative, being under an- obligation to do so, not as representing the property purchased, but as the price for getting direct from the estate that property in its actual state. The payment is a real payment, and not a mere futile book-keeping entry. Since, therefore, in the case supposed, the only gift mentioned in the will is ignored, there is nothing that can be pointed to in the will entitling Ancell to claim from the estate money which, by the assumption, he is in the circumstances bound to pay to the executor, and has paid to the executor, as for property which, up to the time of the exercise of the option, was still the property of the executor, in trust for the next of kin, and was not up to that time the property of Ancell at law or in equity. The question, then, is, what attitude did Ancell in fact assume ? He was free to accept his brother's share as a gift, or to decline it as a gift with the accompanying responsibilities and to stand on his (1) 1 John. & HL, 424, at p. 430. (4) 14 Ves., 590. (2) 10 Ch. App., 610. (5) (1894) 3 Ch., 506, at p. 509. (3) 5 T.L.R., 178, at p. 179. OF AUSTRALIA. er words, did he in relation to his brother's share act as legatee, © as purchaser? His affidavit makes this quite clear. In par. 6 refers to the provision in par. 15 of the partnership deed: " On e death of one partner the surviving partner might purchase share of the deceased ' partner,' and the price to be paid should e the value thereof as standing in the books and disclosed by a balance-sheet to be drawn up for the purpose." Par. 7 sets out the hject of the originating summons. It says: "I desire that the ing to be attached to the last mentioned words should be ermined, and when so determined that some person should be pointed to draw up the balance-sheet and fix the price to be paid me to the estate." Par. 8 amounts to a declaration of election, because it says: " When the purchase price of the partnership is ed and the other assets of the estate collected I desire to pay or nsfer to some third person as trustee for the wife and daughter share to which they are entitled under the will," &c. We were old during the argument that the share had been purchased and, ough sixteen months had elapsed between the death and the xercise of the option, it was treated as a duly exercised option. the Supreme Court held that Ancell had " elected to purchase the hare" (see par. (b) of the formal order). The attitude of Ancell i s therefore not uncertain. He acted under clause 15 of the partner- made, and not as legatee by accepting the gift under the will. bought and paid for the share; he did not accept it as a gift accompanying obligations. He wishes, he says, to pay or er to a third person "the share" of the wife and daughter, it the " share of the profits yearly" to the mother and wife or hter. As, therefore, he does not take as legatee but disclaims e gift, the gift falls entirely, and, with it, the incidental obligations ich do not and could not exist apart from it. Ancell might just as have chosen to act under clause 16 of the deed as under clause If he had done so and a third person had purchased the whole s, how would any trust have arisen to pay income on the proportion of the price, to the mother, widow or daughter ? actual power of purchase free from those responsibilities. In H.C. or A 1920. _~ Drake- Brockman ca Grecory. Isaacs J. Rich J 584 HIGH COURT (1920. H.C. or A. Nor could it make any difference if, under clause 16, Ancell had eis bought. But, if so, the same reasoning must apply to clause 15. Drake- The judgment of the Supreme Court, therefore, in our opinion, is BROCKMAN rong; the appeal should be allowed, and the answer should be that Gexcory. the will does not prescribe how the purchase money shall go. The executor holds it in trust for the next of kin according to law. Appeal dismissed. Judgment of the Supreme Court affirmed. No order as to costs, except declare that executor is entitled to costs as between solicitor and client out of the estate. Deposit to be refunded. Solicitors for the appellants, Downing & Downing. Solicitors for the respondent, Stone, James & Pilkington. {HIGH COURT OF AUSTRALIA.} THE MINISTER FOR HOME AND TERRI- | . TORIES | PLAINTIFF ; TEESDALE SMITH AND ANOTHER . . Derenpants. H.C. or A. 1920, Arbitration—Submission—Award—Rule of Court—Iurisdiction of High Court. aS In respect of an arbitration the only authority for which is the agreement of Tuly 9. K the parties to it, the High Court has no jurisdiction to make either the sub- dah mission or the award a rule of Court. MELBOURNE, "i P ap ee A disputed claim for compensation in respect of land compulsorily acquired by the Commonwealth had arisen and, an application by the Minister for Starke 3. Home and Territories to the High Court to determine the claim having been