Russell v Perpetual Trustee Co (Ltd) [1956] HCA 44

High Court of Australia Dixon C.J. Williams and Fullagar JJ. Russell v Perpetual Trustee Co (Ltd) [1956] HCA 44

ORDER Appeal allowed. Delete the declaration in the decretal order of the Supreme Court relating to the thirty-four two-hundredth parts of the residuary estate of the testator Albert Henry Nathan and in lieu thereof insert a declaration that in the events that have happened the trustee of his will now holds those parts in trust for the appellants as tenants in common in equal shares absolutely. Costs of all parties of the appeal as between solicitor and client to be paid out of the estate of the said testator.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 13 Dixon C.J. and Williams J.

This is an appeal from part of a decretal order made by Myers J. in a suit instituted by originating summons in the Supreme Court in Equity to determine certain questions relating to the construction of the will of the testator Albert Henry Nathan and of the appointments made thereunder by his widow Katey Nathan. The testator died on 20th November 1940. His widow died on 12th July 1948. The appellants are a nephew and two nieces of the widow.

The testator by his will dated 30th October 1936 directed his trustees to pay the income arising from his residuary estate to his widow during her life and after her death to stand possessed thereof upon trust for "such of the following persons namely such of my nephews and niece the said Harry N. Moss Victor Alfred Moss and Laura Woolf as shall be living at the death of my said wife also the children then living of any of my said nephews and niece who shall have predeceased my said wife also the brothers sisters nephews and nieces of my said wife who shall be living at the time of her death and also the children then living of any of the nephews and nieces of my said wife who shall have predeceased her as my said wife may by will or codicil appoint and in such shares subject to such restrictions and conditions and in such manner as my said wife may by any such will or codicil appoint" and in default or so far as such appointment should not extend upon the trusts therein mentioned. His widow by her will dated 22nd November 1946, after reciting the terms of this special power of appointment, expressed her intention to exercise it. She directed the trustees of the will of the testator to divide his residue into two hundred parts or shares and to hold the same upon the trusts that followed. These trusts consist of ten separate sets of trusts relating to various quotas into which the two hundred parts are divided for this purpose. The fourth of these sets of trusts, in which the appellants are interested, is the subject matter of this appeal. The trustees are directed to hold thirty-four of the two hundred parts upon trust: "(iv) As to a further thirty-four of such equal parts or shares upon trust (subject as hereinafter provided) for such of them Naida Russell Charles Russell and Lena Young (three of the children of my sister Rebecca Russell) as shall be living at the date of my death and if more than one as tenants in common in equal shares Provided that the share of each of the three named children of my said sister Rebecca Russell shall be held upon trust to pay the income of his or her share to him or her during his or her lifetime And upon the death of the same child to hold the said share upon trust for such of his or her children (living at the date of my death) as shall survive him or her and shall have attained or shall live to attain the age of twenty-one years and if more than one as tenants in common in equal shares".