Adams v Perpetual Trustee Co (Ltd) [1964] HCA 31

High Court of Australia Kitto, Taylor, Menzies, Windeyer and Owen JJ. Adams v Perpetual Trustee Co (Ltd) [1964] HCA 31

ORDER Appeal dismissed with costs. Costs of the respondent Perpetual Trustee Company (Limited), so far as not recovered from the appellant, to be paid out of the estate of the testator.

Cur. adv. vult.

The following written judgments were delivered:—

May 15 Kitto J.

These appeals, from a decretal order made by Jacobs J. in the Supreme Court of New South Wales, raise a question of construction upon the will of one William Joseph Adams deceased. The will is a document of some length and no little complication, and it is modified by a codicil. The instruments were executed in December 1920 and February 1921 respectively, and the testator died in May 1921. He was survived by a son and three daughters.

The will contains a devise of a specific parcel of land upon trust for the son for life and after his death for his child if only one or his children if more than one in equal shares, and a separate specific devise and bequest in trust for each daughter. There followed provisions affecting in several respects the simplicity of the scheme, and then there came a declaration subjecting the shares or share (original or accruing) of each daughter to a trust as to the income for the daughter and after the decease of the daughter as to the principal and future income for the daughter's child if only one or children if more than one in equal shares. That I may call the initial trust. It was followed immediately by a provision, which I shall call the gift over, in these terms: "But in case of the death of any daughter of mine without issue then as to the principal and future income to hold such daughter's share in trust for my other children in equal shares and the child or children of any children of mine who shall then be deceased". The codicil, after revoking a provision made by the will as to the residuary estate, devised and bequeathed the residue upon trust for the testator's four children, subject to certain provisions which need not be mentioned. In proceedings which reached this Court in 1924 it was declared that the provision in the will for the settlement of the daughters' shares applied both to the lands specifically devised to the daughters and to their interests in residue.