Ainslie v Trustees Executors and Agency Company Limited [1922] HCA 45

122 HIGH COURT

(HIGH COURT OF AUSTRALIA]

AINSLIE AND OTHERS . 5 "i . APPE DEFENDANTS,

AND

THE TRUSTEES, EXECUTORS AND | AGENCY COMPANY LIMITED AND REsPONDEN' OTHERS | ]

PLAINTIFFS AND DrrenDANTs.

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

H.C. or A. Will—Construction—Devise of land—Power to trustees to raise money on land on 1922. that fails—Charge on land or exception from devise—Duty of trustees to

eee money.

ater 3 A testator devised certain land to trustees upon trust to permit one of hi "Woo 13, daughters to receive the rents and profits for life, with remainder to such of

. children as she should by deed or will appoint, and in default of appoint ee upon certain trusts for her children, He directed that out of the rents Starke JJ. profits of the land the trustees should raise a certain annuity for each of

grandchildren, children of another of his daughters. He also directed that on the death of each of these grandchildren his trustees should have power to raise a certain sum of money by way of mortgage of the land, and should holé such sum on certain trusts for the children and grandchildren of such child, and that in default of issue of such grandchild attaining a vested inter in such sum of money it should fall into his residuary estate. The will tained a general residuary devise and bequest. The gifts of the sums of to the grandchildren of the testator's two grandchildren were void for re ness, and the direction that those sums of money should fall into the testat residuary estate consequently failed.

Held, that, assuming that the power given to the trustees to raise such su

31 C.L.R.)] OF AUSTRALIA.

by the testator to be a charge upon the land and not an exception from the H.C. or A.

devise of the land ; and therefore that, on the death of one of those two grand- children of the testator without ever having been married, the sum directed to be raised in favour of his children and grandchildren sank into the land directed to be charged for the benefit of the devisees of the land, and the trustees were under no duty to raise such sum.