Marks v Trustees Executors & Agency Co Ltd [1948] HCA 38

High Court of Australia Latham C.J. Starke, Dixon, McTiernan and Williams JJ. Marks v Trustees Executors & Agency Co Ltd [1948] HCA 38

ORDER Appeal dismissed. Appellant to pay respondents' costs of appeal.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 6 Latham C.J.

I agree with the reasons for judgment of my brother Williams.

Starke J.

Since the order made by Fullagar J. on the originating summons in this case the survivor of "the said four persons" mentioned in the will—Elizabeth Leveson, a daughter of the testator—has died. And there is some confusion in the reasons for judgment between "the said four persons"—the children of the testator and the children of those persons—the grandchildren of the testator. But the reasons are just as effective if the appropriate substitutions are made.

In my opinion the learned judge rightly construed the terms of the will in question here. I agree with his reasoning and can add nothing useful to what he has said.

The appeal should be dismissed.

Dixon J.

I have had the advantage of reading the reasons of Williams J. and I agree in them.

McTiernan J.

In this case I agree that Fullagar J. correctly interpreted the word "vested" in the clause, the subject of controversy, to mean "vested in interest." I have read the reasons of my brother Williams for interpreting the word "vested" in this way. I agree with them and think it is not necessary to add anything.

The appeal should be dismissed.

Williams J.

The question that arises for decision on this appeal is whether the learned judge below was right in declaring that the one-fifth part or share in the Property Trust Fund referred to in the will of Lawrence Benjamin, deceased, and therein directed to be held upon trust for the children of Lawrence Abraham Benjamin vested absolutely and indefeasibly in Colin Bentley. Colin Bentley, who died on 14th December 1945 over the age of twenty-one years without having had issue, was the only child of L. A. Benjamin the son of the testator who died on 26th December 1932, having changed his surname from Benjamin to Bentley. Under the trusts of the will of the testator L. A. Bentley had a special power of appointment over the corpus of this one-fifth part amongst one or more of his children by deed or will which he purported to exercise by his will. But it was not an effective exercise, so that we are solely concerned with the trusts in default of appointment. These trusts operate from the date of an event which has happened pending the appeal, namely the death of the last survivor of the four of the children of the testator (including L. A. Bentley) who were interested in the income of the fund.