Forsyth v Perpetual Trustee Co (Ltd) [1951] HCA 74

154. HIGH COURT [1951.

(HIGH COURT OF AUSTRALIA.]

FORSYTH AND OTHERS . ; . . APPELLANTS ; DrrenDants, AND

PERPETUAL TRUSTEE COMPANY (LIMI- TED) AND OTHE! PLaAIntiFE AND Drve

hr ESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES,

H. ©. or A, Deed—Construction—Settlement—Protective trusts—Subject to prior disentitlement

1951. absolute gift of trust fund to beneficiary on attaining age of fifty-five years—Gift Syd over in event of beneficiary dying " without having received the absolute transfer Sypnny, of the trust fund . . . and leaving no lawful issue "—Death of beneficiary er: a after attaining fifty-five years but before actually receiving gift—No prior dis- ae entitlement or lawful issue—Destination of trust fund—* Received "—Bene- Se ficially received de jure. aia The trustee of a deed stood possessed of a trust fund upon trust for W.

until ho attained the age of fifty-five years, upon certain protective trusts, provision being made for the disentitlement of W. if certain things were done or happened prior thereto. If not disentitled, the trustee was directed, upon W. attaining that age, to transfer to W. the trust fund for his own separate use. If W. became disentitled or died before attaining that age, the trust fund was to be held in trust for W.'s surviving lawful issue, but eived the absolute transfer of the trust

"should he die without having re fund . . . and leaving no lawful issue" then the trustee was to hold

the trust fund upon other trusts, W. attained the age of fifty-five years 'and remained entitled to the trust fund, but three months later he died without

issue, and, owing to a long illness, before the trust fund had been transferred

to him,

Held that the word " receive" was used by the settlor in the senso of

ve de jure", therefore the trust fund was held by the trustee of the