Butler v Trustees Executors and Agency Co Ltd [1906] HCA 11

OF AUSTRALIA. 435

(HIGH COURT OF AUSTRALIA.)

BUTLER . z - E ' APPELLAN'

DEFENDANT, . AND

THE TRUSTEES EXECUTORS AND ) AGENCY CO. LTD. AND OTHERS § PLAINTIFFS AND DEFENDAN'

RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Will—Construction—Gift of fee on attaining 21—Gift over in event of dying under H.C. or A. 21, or unmarried, or without male issue— Or" read as ** and." 1906. =

MerourNe,

March 28, 29.

A testator by his will directed that, upon his eldest son T. becoming 21, the whole of his estate should belong to and be vested in him, and should such son die before becoming 21, or unmarried or without male issue, his said estate

should belong to and be vested in his second son B., and should his second son righ 0.J.,

Barton and' O'Connor JJ.

B. die before becoming 21, or unmarried or without male issue, his said estate should belong to and be vested in his third son C., with a similar provision in respect of the fourth son D., and a gift over if D. should die before becoming 21, or unmarried, or without male issue.

Held, that the will showed that the provisions under which B. or C. or D. 'was to inherit were to be determined before A. attained 21, and therefore that when A, attained 21 he took an absolute interest.

The rule as to the circumstances in which the disjunctive meaning of the word "or" may be controlled by the context considered.

Decision of Full Court (The Trustees Bvecutors and Agency Uo. Ltd. v. Butler, (1905) V-L.R., 650; 27 A.L-T., 63), affirmed.

Aprnat from the Supreme Court of Vietoria,

By his last will 'Tobias Butler devised and bequeathed to trustees therein named all his real and personal estate, after pay~ ment of his debts and funeral and testamentary expenses, upon trust for the benefit and support of his wife and children, express- ing his will to be that the income should be paid to his wife