Buick v Equity Trustees Executors and Agency Co Ltd [1957] HCA 65

97 C.L.R.] OF AUSTRALIA. 599

(HIGH COURT OF AUSTRALIA.]

BUGLE 5 , é : 5 : 8 APPELLANT ; DEFENDANT,

AND

EQUITY TRUSTEES EXECUTORS AND R : AGENCY CO. LTD. AND OTHERS ae ee PLAINTIFFS AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Will—Construction—Meaning of "'issue"—Whether "children" or "lineal 4.0, or A.

descendants" —Gift to class—Whether rule of convenience applicable to close 957, class and prevent gift from being bad for remoteness. Ww MxLpourne,

Dispositions of residue contained in a will were as follows :—" I give devise and bequeath all my real estate and the residue of my personal estate to my 'Trustees upon trust to pay a one-third of the net income arising therefrom to my wife during her life and the balance of the remaining two-thirds of the net income to be divided between my children in equal shares and on the

June 3, 4;

death of my said wife the income shall be paid to my children in equal shares and on the death of any of my children the portion of my real and personal vided between the

estate to which such deceased child was entitled shall be issue of such child per stirpes on each of such issue attaining the age of twenty- 'one years provided that if any child of mine shall die in my lifetime leaving issue who shall survive me and who being male shall attain the age of twenty- one years or being female shall attain that age or marry under that age such issue shall take and if more than one equally between them the share which their his or her parent would have taken of and in my residuary estate if such parent had lived to attain a vested interest."

Held by Dixon C.J. and Kitto J., Fullagar J. dissenting, that issue as used in the will meant all lineal descendants and not simply children of the testator's

children. Held further by Dizon C.J. and Kitto J. that the class consisting of lineal