Perpetual Trustees Executors & Agency Co Ltd v Walker [1953] HCA 21

High Court of Australia Dixon C.J. Fullagar, Kitto and Taylor JJ. Perpetual Trustees Executors & Agency Co Ltd v Walker [1953] HCA 21

ORDER Appeal allowed. Order of Green J. of 3rd November 1952 varied (1) by substituting for the answer given to question 2 (1) (b) in the originating summons the answer The testator's widow is entitled to receive the annuity of £1000 while Huonden remains unsold whether she resides there or not; and (2) by discharging the answer given to question 3 (a). The costs of all parties of the appeal to be paid out of the residuary estate of the testator, those of the trustee as between solicitor and client.

Cur. adv. vult.

The following written judgments were delivered:—

April 28 Dixon C.J.

This is an appeal from an order of the Supreme Court of Tasmania made by Green J. upon an originating summons which raised questions concerning the meaning and effect of the will of Alan Cameron Walker deceased. The testator died on 12th December 1931, his will being dated 27th February 1930. He left a widow, his second wife, and a son and daughter by his first wife, both of whom attained full age. Included in his estate was his residence, which was situated in Macquarie Street, Hobart, and called "Huonden". At the time of his death he and his wife were living at Huonden. By his will he bequeathed all his household furniture and effects, silver, silverplated ware, pictures, glass, china and musical instruments to his wife absolutely. He devised his residence to his trustee upon trust for sale with power of postponement and directed that the net proceeds of the sale should be paid into his trust fund. He added a declaration that Huonden should not be sold without the written consent of his wife. He then empowered his trustee until the sale of Huonden to let the same for such periods not exceeding three years at the best rent the trustee could reasonably obtain, and he directed that after payment thereout of all rates, taxes, assessments, repairs, insurance premiums and other outgoings the trustee should pay the balance to his wife during her life without power of anticipation. But by the fifth clause of his will he went on to direct that until Huonden was sold, his trustee, instead of letting the same, should permit and suffer his wife if she should wish to do so to reside therein, she being responsible during her residence for the maintenance and upkeep thereof and for the payment of rates, taxes, land taxes and fire insurances and all other outgoings thereon. Next he devised and bequeathed all the residue of his real and personal estate to his trustee upon trust for sale and conversion and out of the proceeds thereof to pay debts, funeral and testamentary expenses, to invest the balance, which in his will he called his trust fund, and to pay the net income from such investments as his will afterwards set forth. Then followed a direction upon which much turns. It is cl. 7 and is in the following terms:—"While "Huonden" remains unsold and my wife resides there I direct my Trustee out of the income of my Trust Fund to pay to my said wife but without power of anticipation One thousand pounds per year by equal quarterly instalments but if "Huonden" be sold during the lifetime of my wife I direct my Trustee to increase such sum payable to her to One thousand one hundred and fifty Pounds per year". The will proceeded by the clauses which followed to dispose of the remaining income of his trust fund by dispositions in favour of his son and daughter and his son's children.