King v Perpetual Trustee Co (Ltd) [1955] HCA 70

High Court of Australia Dixon C.J. Williams, Webb, Fullagar and Taylor JJ. King v Perpetual Trustee Co (Ltd) [1955] HCA 70

ORDER Appeal allowed. Decretal order below varied by striking out the declaration therein contained and substituting therefor a declaration that upon the true construction of the will of John O'Flaherty deceased the plaintiff as trustee of his will should distribute the residuary estate amongst the following persons in equal one-thirteenth shares: Shirley Irene Schell, Daniel D'Arcy Sheehy, Patricia Muriel Bray, Patricia Margaret Ford, D'Arcy Hubert Ford, Patrick King, Thomas King, John King, Michael King, Brigid King, Edward King, Mary A. Hill, Perpetual Trustee Co. (Ltd.) as administrator of the estate of Thomas Flaherty deceased. Costs of all parties of the appeal to be paid out of the estate as between solicitor and client.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 15 Dixon C.J., Williams, Webb, Fullagar and Taylor JJ.

The only question that arises on this appeal is the true meaning of the residuary gift in the will of John O'Flaherty who died on 26th July 1937. The gift is in these terms:—"All the rest and residue of my real and personal estate I give devise and bequeath to my trustee upon trust to divide the same equally amongst the children of my sister Bridget King the children of my brother Patrick Flaherty the children of my niece Irene Sheehy and the children of my nephew James Patrick Ford in equal shares absolutely." Admittedly it is divisible among thirteen beneficiaries. They comprise the six children of the sister of the testator, Bridget King (the appellants here), the two children of his brother Patrick, the three children of his niece, Irene Sheehy, and the two children of his nephew, James Patrick Ford. These were all the children of these four praepositi living at the death of the testator. One of this class, Thomas Flaherty, has since died and Perpetual Trustee Co. (Ltd.) is the executor of his estate. The contest is whether these thirteen beneficiaries participate in the gift per capita or per stirpes. Myers J. held that they take per stirpes. It is contended for the appellants that they take per capita.