Sumpton v Downing [1947] HCA 36

H.C. oF A. 1947. ad

Perrn, Sept. 9, 10.

Metuourse, : Oct, 6,

Latham €.5., Rich and Dixon JJ.

SUMPTON AND OTHERS . : é ' . APPELLANTS ; —

DOWNING AND OTHERS . i : ' . RESPONDENTS.

Will—Codicil—Construction — Gift of income of residuary estate, subject to prior

HIGH COURT [1947.

[HIGH COURT OF AUSTRALIA.]

DerrenDANtTs,

AND

PLawntirrs AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA,

life estate, to tiwo named persons during their lives and subject thereto gift of '

corpus of residue to such of the children of the two named persons as should be : living at their death absolutely—Per capita or per stirpes—Distribution of income: 4 after the death of one of the named persons and prior life tenant. " estate to his widow during her life or until her remarriage, directed his trustees after the death or remarriage of his widow to pay the income of his residuary estate to his sisters M. and B. in equal shares during their lives and subject thereto to hold the corpus of his residuary estate upon trust for such of the children of M. and E. as should be living at their death in equal shares abso- lutely.

There followed a substitutionary gift to take effect if any of the children of M. or E. should die in the lifetime of their parent leaving a child or children _ living at the death of M. or E. as the case might be. I. died childless before the testator's widow, who did not remarry, M. died subsequently to the — testator's widow leaving her surviving five children and two grandchildren, who were children of a deceased child of M. "

E A testator, having provided for payment of the income of his residuary q E

ss

ia

:

Held, (1) that the children and grandchildren of M. who were living at her 7 death were entitled to the whole of the corpus of the residuary estate, the grandchildren taking the share of their deceased parent; (2) that the half share of the income of the residuary estate accruing between the death of the testator's widow and the death of M., which would, but for her death, have been payable to E., passed into residue.