High Court of Australia
Trustee Co SWLR 18
65 C.L.R.] OF AUSTRALIA.
{HIGH COURT OF AUSTRALIA.] MATTHEWS . A ' , : ' 5 . APPELLANT ; DEFENDANT, AND WILLIAMS AND OTHERS i i iE . RESPONDENTS.
PuarintirFs AND DEFENDANTS,
ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.
Will—Construction—'"' Issue"»—Whether restricted to children—Descendants of two
stocks.
By the will of M., who died in 1867, the period of distribution of his residuary estate (called his "' trust estate ") was fixed as at the death of his last surviving child. The general plan of disposal of the trust estate provided, until the death of the last-surviving child, for the division of the income amongst M.'s children, substituting upon the death of each up to the last survivor, the children of the deceased's child as the recipients of the share of income which their parent otherwise would have received. The will then declared that when and so soon as the whole of his children should be dead the trustees should call in investments and sell the trust estate and should hold the trust estate "upon trust for such of the issue then living of any child or children of mine who being a son or sons have attained or who shall attain the age of twenty-one years or being a daughter or daughters have attained or shall attain that age or have been or shall be married as tenants in common in a course of distribution according to the stocks and not to the number of individual objects the issue of deceased children taking by substitution as tenants in common the respective shares only which their deceased parent would if living have taken and should there be no child or children issue of any or either of my children living at the period of distribution of my trust estate then I give devise and bequeath the same unto my nephews and nieces sons and daughters of my two sisters" (naming them) "in equal shares and proportions as tenants in common and not as joint tenants." The testator was survived by seven children the last of whom died on 5th April 1940. Each of the seven surviving children had children (grandchildren of the testator) who
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