A.C. or A. 1906. Savack Usiox Bank oF AUSTRALIA Lap. Wuitrraw t Ustoy Bank or AUSTRALIA Lro. H.C. or A, Pnfants—Salvage—Mortgage of vineyard for re-stocking and repairing) 1906. — Sypyey, May 8, 14. Griffith C.J., Barton and O'Connor J. COUSINS AND OTHERS. 5 B cg HIGH COURT of Cordelia Whitelaw, costs of a terlocutory proceedings. Solicitors for appellants, H. M. Lee; W. H. Ford, Melbo urn Solicitors for respondents, Blake & Riggall, Melbourne. — {HIGH COURT OF AUSTRALIA.) PLAINTIFFS, AND COUSINS AND OTHERS . 5 : . RESPONDE DEFENDANTS, ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. of settlor. oe The renovation of a vineyard of established reputation, given by a to his descendants with the intention that it should be enjoyed by such, is salvage such as will justify the Court of Equity in authorizing upon the inheritance for that purpose. i By his will a testator devised an estate comprising such a v "<together with the buildings and working plant thereon and connected with and used in the storing and manufacturing of profits for his life, and after his death in trust for his children in equal as tenants in common, During the tenancy for life the vineyard, careless management, deteriorated to such an extent that, unless m expended upon it for the renovation of the vines, it would shortly of any value as a vineyard. OF AUSTRALIA. "for life, that the Court of Equity should sanction a mortgage of the land for 'the purpose of raising money to restore the estate to a condition in which it be efficiently worked as a vineyard for the production of wine. Judgment of the Chief Judge in Equity: Cousins v. Cousins, (1906) 6 S.R. (N.S.W.), 301, varied, and cause remitted to Supreme Court. pPEAL from a decision of A. H. Simpson C.J. in Equity of the upreme Court of New South Wales. "This was a friendly suit instituted on behalf of certain infant s que trustent against the trustees of a will and the adult is que trustent to obtain the sanction of the Court of Equity the raising of a sum of money by mortgage of the trust estate, to be expended on the estate for its preservation. & H. Simpson C.J. in Equity refused the main part of the ation, but authorized the raising and repayment of a sum of £50 advanced for the harvesting of the previous year's vintage the estate: Cousins v. Cousins (1). _ The facts appear in the judgment. Harvey, for the appellants. This estate is only profitable as a ard, and is the sole source of income of the infants. The eme for which the sanction of the Court is desired is not an mbarkation upon a speculative business, but is necessary for the vation of the estate in the condition in which it was given the testator. It was given as a vineyard, to be used as such. jecessary repairs and improvements may be sanctioned by the ourt: Theobald on Wills, 6th ed., p. 411. If the raising of this ey is not sanctioned the land must be sold merely as agricul- land. The property of infants absolutely entitled may be for repairs: In ve Jackson; Jackson v. Talbot (2). have been sanctioned by the Court for replacing stock by drought: In re Walker; Walker v. Walker (3): m™ ve McIntosh (4); Newham, Harvey and Rich, Equity p . p. 407, and cases there cited; In re Hawker; Duff v. (5). What is asked for is strictly salvage: In re House- (4) (1902) 2 S.R, (N.S.W.) Eq., 247. (5) 76 L.T., 286; 66 LJ. Ch., 341. Held, on an application by the infant children, after the death of the tenant H.C. or A. 1906. —— Cousins v Covustns. H.C. or A. old; Household v. Household (1); In ve Montagu; Derbishi 1906. =o Covsixs Cousins. May 14. HIGH COURT il v. Montagu (2); Cockayne v. Harrison (3); In re New; In re Leavers; In ve Morley (4); In ve Willis; Willis v. Willis (5), [Grirrirn C.J. referred to Griggs v. Gibson (6).] There was no appearance for the respondents. Harvey asked to be allowed to appear for the guardian, so that he might be bound by the order of the Court. GrirrirH C.J. Ido not know that that can be allowed. He is not a party to the action, and if he desires to be heard he should apply in Chambers. If we decide that the Court has jurisdiction to make the order asked for we will refer the matter to the master to inquire whether the scheme is for the benefit of the infants. Cur. adv. vult. The judgment of the Court was read by O'Connor J. The main object of this suit, in which the plain- tiffs are four infants, being four of six tenants in common of an estate known as Bebeah Vineyard, is to obtain a declaration that for the purposes of effecting a salvage of the interests of the plaintiffs and the other tenants in common a sum of money may be raised by a mortgage of the estate and expended upon it. The defendants are the other tenants in common, who are swi juris. The learned Chief Judge considered himself bound by authority to hold that the facts did not establish such a case of salvage as would justify the Court in authorizing a charge upon the inherit- ance, but added that he would not be sorry if the opinion of a higher Court should be obtained. The jurisdiction of the Court which is invoked is the jurisdie- tion to administer the real estate of infants for their benefit. This jurisdiction is not conferred by Statute, but is exercised by the Court as a delegate of the Sovereign in his capacity of parens: patriv. Nor is it limited by any Statute. "At one time it was thought," as said by Chitty J.in In ve De Teissier's Settled Estates (1) 27 Ch, D., 553. (4) (1901) 2 (2) (1897) 2 Ch., 8. (3) (1902) 1 CI (3) LR. 13, E (6) 21 W.R., SIB. LR. OF AUSTRALIA. mse it was for the benefit of the infant. That notion was y Lord Langdale M.R. in 1843. It has been held that the Court nnot charge the real estate of an infant for the purpose of ivancement: Re Swanston (3). Practically the exercise of the iction of the Court, so far as regards expenditure upon the te itself, is by the effect of judicial decision now limited to s where such exercise is necessary for the preservation of the tate, or, as it is sometimes put, to cases of salvage: Zn re fontagu; Derbishire v. Montagu (4). 'Tt is, in our opinion, necessary in each case to consider 'the nature of the property in question. In the present case the Court is asked to exercise its jurisdiction in the case of a _ vineyard. By the will of the testator this estate "together with the buildings and working plant thereon and everything connected _ with and used in the storing and manufacturing of wine" was vised to trustees upon trust to permit the plaintiffs' father to ave the use and enjoyment and receive the rents and profits for ife, and after his death in trust for his children in equal as tenants in common. The vineyard in question had an ment during the tenancy for life, it has fallen into such a ition that unless money is expended upon it for the renova- n of the vines it will soon cease to have anything more than is called in America "prairie value." We think that in he diseretionary exercise of this branch of the parental jurisdic- m of the Court regard may be had to the intention of the itor: In ve Corkers (5). And we think that it was the this intention cannot be etfectuated without raising a sum of ey by creating a charge upon the estate, we think that the Jurisdiction of the Court may properly be exercised for that rpose. The value of a vineyard, as is well known, often (1) (1893) 1 Ch., 153, at p. 163, (2) 6 Beav., 9 (8) B1Sol. J, that the Court could order the sale of an infant's estate, H. 0. oF A. 1906. - depends upon the particular quality of the soil, which HIGH COURT [ be unique; and when a vineyard has an established reputation, the name and reputation are an essential part of the propert) Suppose that in the case of such a vineyard, the soil of which possesses special qualities, the whole of the working plant, and perhaps the vines themselves, should be destroyed by some unforeseen calamity, it would be essential to the con-— tinued existence of the property as the testator intended it to be enjoyed that they should be restored. Whether the faets of any particular case bring it within the rule is a matter to be deter- mined on the evidence. In Griggs vy. Gibson (1) the Lords Justices allowed a sum to be raised on the security of the inheritance for the purposes of rebuilding a mansion in which the testator intended his children to reside, and of suitably furnishing it. We think that the renovation of a vineyard of established reputation, given by the testator to his descendants with the evident intention that it should be enjoyed by them as such, falls within the principle of salvage, and that, upon the evidence, this ~ is a case in which the desire of all the parties (including the adult children) may be fulfilled. The application should formally be made by the guardian of the estate of the infants. We think, therefore, that there should be a declaration that it is proper and desirable that such a sum should be raised upon the security of the land as is necessary for the purpose of restoring the estate to a condition in which it may be efficiently worked as a vineyard for the production of wine, and that with this declaration there should be a reference to the Master to inquire what sum or sums. is or ave necessary to be raised for that purpose, and on what conditions: Conway y. Fenton (2). The judgment appealed from should be ried accordingly, and further consideration reserved, with liberty to apply. The cause will be remitted to the Supreme Court to do what is right in pursuance of this judgment. The appellants' costs of appeal may be raised out of the estate in the same manner as the costs of suit, as directed by the judgment. Order of Chief Fudge in Equity varied and cause remitted accordingly. (1) 21 W.R., 818. (2) 40 Ch. D. use ppt P AUSTRALIA. 1203, appellants, A. B. Shaw by Shaw & Macdonald, # ©. oF Av respondents, R. H. Levien. bee CA. W. Cousixs cA Cousins. END OF VOI. Ul.