Cox v Archer [1964] HCA 18

High Court of Australia Kitto, Taylor and Owen JJ. Cox v Archer [1964] HCA 18

ORDER Appeal allowed. Order of the Supreme Court varied by omitting the answers therein contained and substituting the answers: To Question 1: Yes; To Question 2: No. Order that the costs of all parties of this appeal be paid out of the respective estates of Emily Jane Cox deceased and Trevor Cox deceased.

Cur. adv. vult.

The Court delivered the following written judgment:—

March 23 Kitto, Taylor and Owen JJ.

The order appealed from was made upon the hearing of an originating summons for the construction of the respective wills of two deceased persons who were husband and wife. The wills were both executed on 17th June 1955. The testator and testatrix had been tenants in common of a farming property of some 1,500 acres, known as "Springbanks". On 16th June 1955, the day before the wills were executed, the spouses joined in conveying a portion of "Springbanks", comprising 615 acres, to a son, the present appellant, by way of gift. The son had lived and worked on "Springbanks" over a number of years, and since 1953, when the parents moved from "Springbanks" to a home at Longford, he and his family had occupied the homestead. The portion given to him he had held under lease from the parents since early in 1952, and he had farmed it on his own account ever since; but he had continued to work on the portion the parents retained and to assist in its management. There was only one other child, a daughter.

In this state of affairs the testator and testatrix executed mutual wills. Each will gave the whole estate to trustees, and after making some specific and pecuniary gifts directed the trustees to stand possessed of the real and personal estate not otherwise disposed of upon trust to sell, call in and convert into money the estate or such part thereof as should not consist of money, and out of the money produced by the sale, calling in and conversion and such personal estate as should consist of money to pay the funeral and testamentary expenses (including duties) and debts and legacies. Then the trustees were directed to stand possessed of the residue of the said moneys (thereinafter called the residuary trust fund) upon trust to invest it and pay the income to the other spouse for life, and from and after his (or her) death upon trust as to the capital and income for the daughter absolutely if (as happened) she should survive the testator (or testatrix).