Lucas v Hawkes [1920] HCA 59

266 HIGH COURT [1920,

[HIGH COURT OF AUSTRALIA.]

LUCAS x 3 ' e x 2 . APPELLANT ; DrrenDANT, AND HAWKES AND OTHERS . : 5 ¢ . RESPONDENTS.

PrarytirFs AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

H. C. or A. Will—Construction—Gift of income of fund to children until death of last survivor —

1920. Substitution of children of deceased child—Limitation of interest of such children. aches A testator by his will gave a fund to his trustees upon trust to divide the Sept. 24. income among all his children in equal shares, and in the case of any child (not being the last surviving child) who should die leaving issue his trustees

Knox CJ; were to hold the respective share of the income to which such child would Rich JJ. have been entitled, if living, in trust for the maintenance and education or

otherwise in the discretion of the trustees to be appropriated for the benefit of his grandchildren issue of such child so dying as tenants in common. He further declared that as soon as all his children should be dead his trustees should realize the fund and hold it upon trust for the issue then living of his children who being sons had attained or should attain the age of twenty-one years or being a daughter had attained or should attain that age or had married or should marry under that age as tenants in common, in a course of dis- tribution according to stocks and not to the number of individual objects. 'There was a gift over in the case of there being no issue living at the period of distribution.

Held, that on the death of a child of the testator and until the death of the last surviving child of the testator the children of such first-mentioned child took a life interest only in the income of the fund, and that on the death of one of the children of a deceased child of the testator the share of the income that would have been payable to him or her became payable to the personal representative of his or her parent.