High Court of Australia
H.C. or A. 1931. a
Sypyey, Mar. 25; April 2.
Gavan Dufly
C.J., Starke,
Dixon, Evatt, and McTiernan
SAYWELL AND OTHERS . DEFENDANTS,
PERMANENT TRUSTEE COMPANY OF NEW ) SOUTH WALES LIMITED AND OTHERS )5
HIGH COURT (1931. [HIGH COURT OF AUSTRALIA] APPELLANTS ; AND RESPONDENTS.
PLAINTIFF AND DEFENDANTS,
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
Will—Implied revocation by codicil—Appointment of trustee company—Intention implied to remunerate — Permanent Trustee Company of New South Wales
(Limited) Act 1888 (N.S.W.), sec. 13*—
South Wales Limited (Amendment)
Permanent Trustee Company of New ) Act 1918 (N.S.W.), sec. 18.*
A testator appointed his five sons to be the executors and trustees of his will, and declared that no executor or trustee of his will should at any time be entitled to charge or apply to the Court for payment of commission on either capital or income in respect of his duties or work done as such executor or trustee, By a codicil the appointment of the sons was revoked and a trustee company was appointed in their stead. 'The testator confirmed his will and earlier codicil in all other respects, no express reference being made
to the declaration prohibiting payment of commission.
*Sec. 13 of the Permanent Trustee Company of New South Wales (Limited) Act 1888 (N.S.W.), as amended by see. 18 of the Permanent Trustee Company of New South Wales Limited (Amend- ment) Act 1918 (N.S.W.), provides that "The Company shall be entitled to receive, in addition to all moneys properly expended by it, and charge- able against any estate of which the administration shall be committed to the Company, whether as executor
trustee," &c., "a commission 'at a rate to be fixed from time to time by the board of directors of the Company,
but not to exceed in any case two pounds ten shillings for every one hun- dred pounds of the corpus or capital value of any such estate, and five pounds for every one hundred pounds of the annual income of any such estate received by the Company . . . and such commission shall be payable out of the moneys in the possession of the Company representing the estate upon which the same shall be chargeable, and shall be accepted by the Company in full satisfaction of any claim to re- muneration for acting as such executor
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