Duncan v Equity Trustees Executors and Agency Co Ltd [1958] HCA 36

99 C.L.R.] OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

DUNCAN . : - E n 4 APPELLANT ;

DEFENDANT, AND

EQUITY TRUSTEES EXECUTORS AND

AGENCY COMPANY LIMITED AND RESPONDENTS. OTHERS 3 ste 6 PLAINTIFF AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

with trusts engrafted on interest—Failure of engrafted trusts—Accruer clause making specific provision on such failure—Whether rule in Lassence v. Tierney excluded—Nature of rule.

The rule in Lassence v. Tierney (1849) 1 Mac. & G. 551 [41 E.R. 1379] or Hancock v. Watson (1902) A.C. 14 is no more than a rule of construction, the application of which may always be excluded by the terms of the will or deed in question. There can be no occasion for the application of the rule unless trusts are engrafted upon an antecedent gift absolute in the first instance and there is a failure of these trusts. Where, however, the will or deed provides in terms for what is to happen in the event of a failure of the engrafted trusts the operation of the rule is excluded. Thus the rule cannot prevent an accruer clause from taking effect according to its tenor.

Decision of the Supreme Court of Victoria (Lowe J.), reversed.

Appeat from the Supreme Court of Victoria.

Alison May Duncan appealed to the High Court of Australia

from a decision given by Lowe J. on 6th March 1958 answering questions raised by an originating summons wherein the Equity Trustees Executors and Agency Company Limited (as the surviving executor of the will of William James Woodmason, dec'd. and as administrator of the estate of Phyllis Ada Bell Woodmason, dec'd.) was plaintiff and Edna Elizabeth Bell Barrow, Winifred Jemima Bell Taylor and the appellant (as representing herself and all the

VOL. XCIX—33

Will—Construction—Gift of absolute interest to each beneficiary in his share in estate H.C. or A.