Gilbert v Stanton [1905] HCA 1

R] OF AUSTRALIA. 47

(HIGH COURT OF AUSTRALIA.)

"YARTHA EVELYN GILBERT, LAVINIA KILMARTIN, ROSE ANN PALMER, ayp ALMA ELEANOR LOUISA STAN- TON,

PLAINTIFFS,

j . APPELLANTS ;

AND

- SARAH ANN STANTON, RHEUBEN STANTON, ALFRED STANTON, JOSEPH ROBERT STANTON, SUSAN ISABEL NICHOLLS, ROBERT HAR- VEY, ARTHUR DAVIES, THE TAS-| MANIAN LOAN GUARANTEE AND ) . Respoxpenrs. FINANCE COMPANY LIMITED, THE/ PERPETUAL TRUSTEES EXECUTORS AND AGENCY COMPANY OF TAS- MANIA LIMITED, ayp HECTOR ROSS (CURATOR OF INTESTATE ESTATES), | Drrenpanrs. '

ON APPEAL AND CROSS-APPEAL FROM THE SUPREME COURT OF TASMANIA.

Pover of appointment —Good faith— Fraud on power—Benefit to appointor. H. ©. oF A.

Notwithstanding the rule that the appointor under a power must at the time 1905. 'ithe exercise of that power, and for any purpose for which itis used, act with | —— '00d faith and sincerity, and with an entire and single view to the real purpose HBARt, aud object of the power, and not for the purpose of accomplishing or carrying M0" 1, 23, into effect any object beyond the purpose and interest of the power, when an Grigith C.J. Arrangement, in pursuance of which the appointment of a reversionary estate Sarton a1) ismade, is such that in substance the appointee gets the full value of the rever-

it, the fact that the appointor derives a benefit corresponding to the value this life estate is not sufficient to invalidate the appointment.

Gumeer axp 'Oriens

Sraxtox axp Orns.

HIGH COURT

By indenture of settlement, property consisting of about 247 y unimproved land was settled on S. A. S., a married woman, for lie restraint on anticipation, and with remainder to such of her children a, should appoint, and in default of appointment to her children abso § A, S. had four cons and six daughters In exercise of the pony, appointed at various times three several portions of the land to three of hs sons, leaving a portion of 35 acres unappointed, but her intention to this portion to her fourth son John William was well known to her By deed of Ist December, 1891, 8. A. 8. purported to mortgage the ren the whole of the property comprised in the settlement to one Harveyto an advance by him of £450, £135 of which was applied for the purpae paying off her debts, £280 for the purpose of erecting a now dwelling and further sums in improving, the 35 acres. In March, 1898, Harvey wi debt then amounted to about £440 asked for payment. At this time the acre block was under lease for a term of four years to John William and another at a rental of £120 per annum, but the rent was then in area the extent of about £130. On 16th April, 1898, S. A. S, exeouted a ded d appointment of the 35 acres in favour of her son J. W. An order of the Supreme Court was obtained on 28th April, 1898, removing the restraint anticipation, and on 3rd May, 1898, she and J. W. executed a mortgage infee to the defendants The Tasmanian Loan Guarantee and Finance Co, to sce £500 the receipt of which was acknowledged by both mortgagors, In a it to impeach the appointment as a fraud on her power, the Supreme Court of 'Tasmania held on the evidence that it was not proved that the appointmest was executed with a view to the giving of the mortgage.