Maurice Gibbons Eagle Knight v Josiah Charles Eagle Knight [1912] HCA 36

86 HIGH COURT (1912.

[HIGH COURT OF AUSTRALIA.]

MAURICE GIBBONS EAGLE KNIGHT |

APPELLANTS ; AND ANOTHER "2 > ae

AND

JOSIAH CHARLES EAGLE KNIGHT ) RESPONDENTS, AND OTHERS J

CYRIL HENRY EAGLE KNIGHT AND Wars oe ANOTHER 5 « 4 é a AND :

JOSIAH CHARLES EAGLE KNIGHT ) Rardin AND OTHERS): co)::. Wiueon eal :

ON APPEAL FROM THE SUPREME COURT OF

TASMANIA. H.C. or A, Will—Interpretation—Gift to persons * surviving" the testator—Meaning of 1912. "survive." eee A testator, by his will, left the residue of his property to trustees upon is eas trust to divide it equally between such of the children of A. and of B., 'as oy, "shall survive me and live to attain the age of 21 years on their attaining such ae age." M RNE, : nen Held by Barton and Isaacs JJ. (Grifith C.J. dissenting) that the primary lite meaning of "' survive" is "outlive," that there was nothing in the context of Griffith C.J., the will to control that meaning and, therefore, that the children born during end the lifetime of the testator and who were living at his death were alone entitled

to share in the residue.

Per Grifith C.J. and Isaacs J.—The "rule of convenience" laid down in Andrews v. Partington, 3 Bro. C.C., 401, is to be applied only when it is necessary, that is, when the fund in question becomes actually divisible.

Dee

ion of the Supreme Court of Tasmania (MeIntyre J.) affirmed.

14 C.L.R.] OF AUSTRALIA.

CoNSoLIDATED APPEALS from the Supreme Court of Tasmania.

An originating summons was taken out in the Supreme Court of Tasmania by Marie Louise Steinbach aud Charles Horace Steinbach for the determination of the question (inter ulia) what person or persons were entitled to the residuary estate of Charles Eagle Knight, deceased, bequeathed by his will and codicil.

The material portions of the will and the material facts are stated in the judgments hereunder.