Rogers v Rogers [1916] HCA 23

296 HIGH COURT [191

H.C. or A. assistance of the person entitled to sue, though of course that 1916. Bruce The result is that when Mrs. Tyley invokes the assistance of the

b. Tyury.

person may lend his name if he chooses, as Mr. Tyley did here.

Statute she is met by the answer that her case is not within its

Gavan Duffy J. 5 it is her husband and not herself.

Appeal allowed. Judgment appealed from set aside and judgment entered for defendant.

Solicitor for the appellant, F. Villeneuve Smith. Solicitors for the respondents, McLachlan, Napier & Browne.

BL.

(HIGH COURT OF AUSTRALIA.]

RUSSELL AUBREY ROGERS e "i APPELLANT 3 DEFENDANT,

AND

GEORGE ALBERT ROGERS AND OTHERS Responvenrs. PuaintirF AND DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Will—Interpretation—Absolute gift—Gift over—Outting down absolute gift—Remote- 1916. ness—Res judicata.

Se By his will a testator gave all his property real and personal to his three

Sypnry, named sons, whom he appointed his executors and trustees, with directions April 6, 7. for payment of his debts and certain legacies and for the carrying on of his Griffith 0.3., business, and a direction as to the amount of the drawings thereout by the

Lele nae youngest of such sons until he attained the age of 25 years. He then declared and Rich JJ.

that the residue of his estate "is to become the property of" the same three

provisions, and that, if either of the plaintifis is entitled to judgment, —

CLR.) OF AUSTRALIA.

charge all existing liabilities at the time of my decease." He next directed that should any of those three sons die unmarried one-half of his share should remain to capital account for the benefit of the other two sons, and that the other half _ should be paid at the convenience of the remaining trustees to those interested in the deceased son's will, if any, and if he left no will then that the whole of his _ share should go to capital account. He further directed that if any of those three sons should die married with issue, the eldest son of such son might have the - option of being educated for filling a commercial position by the remaining trus- tees until he should reach the age of 16 or 17 years, after which he might with the sanction of the remaining trustees commence his commercial training with _ a view of fitting himself for filling his father's position with half the interest of the other trustees after he should have reached the age of 25 years and applied himself to the business to the satisfaction of the remaining trustees. The testator also directed that during the widowhood of such deceased son's wife his trustees should pay her a weekly sum for the support of herself and her other children, if any.