Dean v Cole [1921] HCA 46

REPORTS OF CASES

DETERMINED IN THE

HIGH COURT OF AUSTRALIA

1921-1922.

HIGH COURT OF AUSTRALIA.]

DEAN AND ANOTHER. i z : . APPELLANTS ; PrarntirF AND DEFENDANT,

AND

COLE AND ANOTHER .. é © S . RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Will—Interpretation—Absolute gift or trust.

By his will a testator appointed his wife executrix and another person gy ¢, op A, executor, and directed that his debts, funeral and testamentary expenses —_} 99], should be paid as soon as conveniently might be after his death. The will Seas) then continued :—"I give devise and bequeath unto my wife . . . all Sypney, my real and personal estate, but subject to the following conditions :—First, Nov. 7, 8,17. that out of my estate the sum of one thousand pounds and the further sum of

three hundred pounds with any bonus additions (being the value of a policy of *pox03" assurance on my life . . . ) shall be forthwith invested in the name of my @ayan Duty, Starke JJ.

executrix and executor for the maintenance and support of my son A.D., .. . provided that if it shall please God so to order that at any time he the said A.D. shall be . . - capable of managing his own affairs, then the above-named sums of money with all and every residue of interest shall be paid to the said A.D. on his arriving at the age of twenty-one years or subse- quently, provided further that should the said A.D. die incapable of managing

H.C. or A. 1921.

Dean v. Coxe.

HIGH COURT (1921,

his own affairs, then these aforenamed sums of money with any accrued" interest thereon shall be at the absolute disposal of my wife Second, with the exception of these two sums of money just before named, I give all and every portion of my real and personal estate to my wife . . . trusting to her that she will at some time during her lifetime or at her death divi in fair just and equal shares between my children J.D., 8.D., E.A.D. a (.E.D., or such of them as may survive, all such part and portion of my estat as she may be in the use and enjoyment of, but with this stipulation in the ¢ of each and every of my daughters (1) that they shall not marry without consent of my executrix and executor, whom I appoint as their guardii and (2) that when at any time they do marry care shall be taken by my executrix and executor that the portion given to each of my daughters shall so secured upon them by deed of settlement that the portion given is for sole use and enjoyment of each and such daughter as may marry and placi such portion out of the power use or control of each and every their respecti husband. My other two surviving sons W.D. and H.D. having been alrei provided for by me are to have no part nor share in my estate and are by my will excluded from all participation in the same."