McDonnell v Neil
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1951 |
| Year | 1951 |
| Date | 1951 |
| Court | Privy Council |
Will - Construction - Bequest of residue - On trust for testator's two daughters for life in equal shares with remainder in fee to their issue in equal shares - Trust of one moiety for each daughter with remainder to her issue.
A testator by his will, after making certain specific devises and bequests, devised and bequeathed the residue of his real and personal estate upon trust “for my said two daughters G. and E. for life in equal shares with remainder in fee to their issue in equal shares their grandchildren if any taking per stirpes”. At the date of the testator's will and of his death his daughter G. was a widow with three children, and E. was a spinster. Shortly after the testator's death E. married, and she had one child, a daughter. One child of G. predeceased her, leaving a son. Both the other children of G., who survived her, had children. E. died in 1937, and G. in 1948. An originating summons having been taken out to determine whether “the corpus of the residuary estate … is divisible equally per stirpes or per capita among the children of” G. and E. respectively:—
Held, that the residuary trust for the testator's two daughters for life in equal shares with remainder in fee to their issue in equal shares ought to be construed as meaning that on the death of either daughter the gift in remainder of the equal share of the corpus, of which she had enjoyed the income during her life, was to take immediate effect. The words “with remainder” meant “with remainder upon the determination of the precedent life estate”, and pointed as clearly as would the words “at the death” to the same point of time. Accordingly, on the true construction of the will there was a trust of one moiety for G. for life with remainder to her issue and a trust of the other moiety to E. for life with remainder to her issue.
APPEAL (No. 14 of 1950), by special leave, from a judgment of the High Court of Australia (May 5, 1949), reversing a judgment of the Supreme Court of New South Wales (December 3, 1948), on the construction of the will of William McDonald.
By his will, dated September 11, 1902, the testator, who died on June 11, 1904, and was survived by his two daughters, Grace McDonnell, a widow, and Emily, a spinster, after making certain specific devises and bequests, left the residue of his real and personal estate on trust “for my said two daughters Grace McDonnell and Emily Sarah McDonald for life in equal shares with remainder in fee to their issue in equal shares their grandchildren if any taking per stirpes”. At the date of the testator's will and of his death his daughter Grace was a widow with three children, and Emily was a spinster. Shortly after the testator's death Emily married, and had one child, a daughter, the present respondent. One child of Grace predeceased her, leaving a son. The two children of Grace who survived her both had children. Emily died in 1937, and Grace in 1948.
By an originating summons it was asked, inter alia, whether the corpus of the residuary estate was divisible equally per stirpes or per capita among the children of Grace and Emily respectively. The Supreme Court of New South Wales (Sugerman, J.) held that what the testator intended was a gift to the issue of his daughters in equal shares per capita, any question of stirpital division being postponed until the generation of grandchildren of the daughters.
An appeal against that decision by the daughter of Emily (the present respondent) was allowed by the High Court of Australia (Dixon and Williams, JJ., Latham, C.J., dissenting). The High Court held that the corpus of the residuary estate had been divisible since the death of Grace between the daughter of Emily us to one moiety thereof and the two children of Grace and the son of her predeceased child as to the other moiety. The children of Grace and her grandson now appealed.
1951. February 8, 12. Upjohn, K.C., and John H. Sparrow for the appellants. The real issue is whether the gift to the children of Grace and Emily is a stirpital division or a division per capita, that is, does the share go per capita amongst the children of Grace and Emily so that it would be divisible into four parts, or does it go per stirpes, the stirpes in this case for this purpose being Grace and Emily, so that the child of Emily takes one half and the remaining half is divided between the three children of Grace. Looking at the terms of the gift, it is one gift, and it goes over after the death of the survivor of Grace and Emily. On the death of Emily, Grace was entitled to the whole income for her life — the survivor takes the whole income; that has been held in a number of authorities: In re TelfairF1. The gift to issue on the death of the surviving life-tenant is not expressed to be per stirpes and is therefore per capita. The terms of the gift as a matter of language are “to their issue in equal shares”, and that can mean only one thing, you take all their issue and give the gift to them in equal shares. A stirpital division does not satisfy that test. Where there is a gift to their issue in equal shares, prima facie that is a gift per capita: Hawkins on Wills (2nd ed.), p. 149. It is a gift to their issue, meaning the issue of both of them. If it had been intended to give stirpitally it would have been easy to say “to their issue in equal shares per stirpes”. That was not said. The grandchildren come in and they alone take per stirpes; that necessarily means that the children are not going to do so.
Without doing violence to the language of this will the wording cannot be altered so as to make what as a matter of words is quite plain — that the gift to their issue does not mean a gift to the respective issue of the person dying. Even if that be wrong, and there is no gift over on the death of the survivor but a gift over on the death of each, it is still submitted that the words mean one thing only, it goes to their issue in equal shares — to the issue of both of them. In...
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