Crane v Crane [1949] HCA 52

High Court of Australia Latham C.J. Dixon and McTiernan JJ. Crane v Crane [1949] HCA 52

ORDER Appeal dismissed. Costs of all parties to the appeal out of the estate; those of the trustees as between solicitor and client.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 22 Latham C.J.

This is an appeal from an order of the Supreme Court of South Australia (Napier C.J.) interpreting the will of the late Arthur Crane who died on 30th March 1932. The will contained a direction that the testator's trustees should stand possessed of his residuary trust moneys—"In trust to pay the income thereof to the guardian or guardians of the children of my brother George Joseph Crane for their education maintenance and support during their respective minorities and from and after the son or sons of the said George Joseph Crane respectively attaining the age of twenty one years and the daughter or daughters of the said George Joseph Crane respectively attaining that age or marrying under that age in trust for them absolutely share and share alike and if there shall be only one child then in trust for that one only. Provided always that if any child of the said George Joseph Crane shall die before coming into possession of his or her share under this will leaving a child or children him or her surviving who being a son shall attain the age of twenty one years or being a daughter shall attain that age or marry under that age then and in every such case the lastmentioned child or children shall take (and if more than one equally between them) the share which his or her parent would have taken under this will if such parent had attained the age of twenty one years."

At the time of the testator's death his brother G. J. Crane had three children, one of whom, a daughter, died before attaining twenty-one. One son attained twenty-one on 19th June 1939; the other son was born on 24th February 1929 and therefore has not attained the age of twenty-one years. The testator's brother, who was a widower at the time of the testator's death, married again and the appellant William Clement Crane was born on 9th July 1942. The first question which arose upon the will was whether the appellant was entitled to an interest in the income or the corpus of the residuary trust moneys.