Hedger v Kiel [1949] HCA 56

High Court of Australia Latham C.J. McTiernan and Williams JJ. Hedger v Kiel [1949] HCA 56

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

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 6 Latham C.J.

By his will Frank Owen Hedger, who died on 6th July 1939, after providing for certain legacies, gave all his real and personal estate not otherwise disposed of by the will to his trustees upon trust to sell and convert into money. The income of these residuary trust moneys was given to his wife Martha Maud Hedger for life. From and after the death of his wife he directed his trustees to stand possessed of the trust funds upon trust to divide them into three equal parts or shares. As to the first of such shares he directed his trustees to stand possessed thereof "upon trust for such person or persons at such ages or times and in such manner as my wife the said Martha Maud Hedger by will appoints." The will contained provisions to take effect in default of, and subject to any appointment of, the said third share.

The wife of the testator survived her husband and died on 24th July 1948, leaving a will made on 16th November 1932; that is, the will of the wife was made before that of her husband. By her will the widow devised and bequeathed all her property of whatsoever kind and wherever situated to her trustees upon the trusts therein declared. The question which arises is whether by this disposition she effectively exercised the power of appointment given to her by her husband's will so as to dispose of the one-third share of the proceeds of conversion of her husband's residuary estate.

The Wills Probate and Administration Act 1898-1947 N.S.W., s. 23 (3), provides as follows:—" a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner shall be construed to include any personal estate, or any personal estate to which such description extends (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention appears by the will." The question which arises for determination is whether the power of appointment given to the widow is a "power to appoint in any manner she may think proper." In order that the section should become applicable, there must be no limit in respect of objects of the power. If certain persons or a class or classes of persons are excluded as objects of the power, the power is not a power to appoint in any manner the donee of the power may think proper: if, for example, the power is a power to appoint only to living persons, there is no power to appoint to unborn persons or to corporations, corporations not being capable of life or death in the ordinary meaning of those words (In re Byron's Settlement [1] ; In re Jones [2] ). Sugerman J., in proceedings by way of originating summons in the Supreme Court of New South Wales, held that the power given to the widow was a power to appoint in any manner she might think proper.