Sexton v Horton [1926] HCA 25

240 HIGH COURT (1926,

{HIGH COURT OF AUSTRALIA.)

SEXTON z 5 A : : . APPELLANT; RESPONDENT,

HORTON AND OTHERS . 4 : 5 . RESPONDENTS. APPLICANTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Real Property—Grant of equitable estate—No words of limitation—Estate in fee or for

1926. life—Deed of settlement—Interpretation—Intention of grantor. Roe By a deed of settlement made in New South Wales in 1865 the settlor granted

certain land unto A and his heirs to have and to hold unto and to the use of

Aug. 11, 12, 27. A and his heirs during the life of the settlor's wife in trust to allow her and her ave assigns to hold the same for her separate use without impeachment of waste, Isaaes Wigelas, and from and immediately after her decease to the use of the eldest son of the Bees settlor and his wife living at the time of her death, and in the event of there

being no such son then to the use of the wife, her heirs and assigns for ever.

Held, that according to technical rules of construction the settlement conferred upon the eldest son an estate for life, and not an estate in fee simple, in equity, and that the Court was not entitled to consider the intention of the settlor as gathered from other parts of the instrument.

In re Bostock's Settlement ; Norrish v. Bostock, (1921) 2 Ch. 469, followed. Hunt v. Korn, (1917) 24 C.L.R. 1, overruled.

Decision of the Supreme Court of New South Wales (Long Innes J.): Bx parte J. Horton, (1926) 43 N.S.W.\W.N. 160, reversed.

Apprat from the Supreme Court of New South Wales. By a post-nuptial settlement made in New South Wales on 28th November 1865 between William Arthur Evans, Mary Evans (his

38 C.L.R.] OF AUSTRALIA.

wife) and George Richards, William Arthur Evans granted unto H.C. or A.

George Richards and his heirs certain land in the City of Goulburn, to have and to hold unto and to the use of George Richards and his heirs during the life of Mary Evans without impeachment of waste, "and from and immediately after her decease to the use of the eldest son of the said William Arthur Evans and Mary Evans living at the time of her death and in the event of there being no 'such son then to the use of the said Mary Evans her heirs and assigns for ever." William Arthur Evans died on 2nd January _ 1890 having made a will dated ist February 1886, and his wife, ~ Mary Evans, died on 18th February 1873. Their eldest son living at the time of her death was William Arthur Evans jun., who on 3rd July 1896 granted the land by way of mortgage to Diana Elizabeth Charteris. This mortgage was assigned to Augustine Matthew Betts, who died on 15th September 1924 and whose executors were Ernest Augustine Betts and Selwyn Frederick Betts. By an indenture of marriage settlement William Arthur Evans jun. on 7th February 1898 granted the land in question to Frank Wall and his heirs to have and to hold unto Frank Wall and his heirs upon certain trusts including trusts in favour of his intended wife, Stella Elizabeth Horton, whom he afterwards married. John Horton was subsequently appointed to be trustee of this settlement. 'There was, at all material times, a hotel erected on the land, and on 13th October 1924 it was determined by the Licences Reduction Board, pursuant to the Liquor (Amendment) Act 1919 (N.S.W.), 'that the hotel should be closed and that the compensation money payable to the owner of the hotel should be £840.