Practitioners drafting or construing wills should note that words such as 'in equal shares' prima facie create a tenancy in common, and that a gift over per stirpes (to each beneficiary's own children) confirms rather than displaces that construction.
Later decisions that cite Epple v Stone
Epple Defendant, Appellant; and Stone and Another Plaintiff and Defendant, Respondents.
H C of A
On appeal from the Supreme Court of Victoria.
23 March 1906
Griffith C.J., Barton and O'Connor JJ.
Agg and Hayes for the appellant.
Weigall and Mackey for the respondent Hilda Beatrice de Garis.
Hayball for the trustee, respondent.
Hayes in reply.
Griffith C.J. delivered the judgment of the Court.
Griffith C.J.
Barton and O'Connor JJ.
After the full debate this matter has received at the bar, we are not able to entertain any serious doubts as to the construction of this will. It has often been said that a case on one will is of no value for the construction of another will, except so far as the two wills are identical, or so far as the case lays down some principle of construction. In none of the cases cited were the terms of the will exactly the same as those of the will now under consideration, but a principle is laid down in one of them, and I think that principle has been followed in all of them. I for my part cannot find the conflict between those decisions which the writers of text books have found.
In this case the testator devised and bequeathed certain properties to his trustees "upon trust to hold the same during the lives of my two daughters ... and the survivor of them," during which period the trustees were "to receive the rents profits and income thereof." The will then goes on to provide for the trusts during that period, viz.:—"Upon trust to pay the same to my said two daughters in equal shares during their respective lives and the life of the survivor of them for their own use and benefit respectively free from the debts and control of their respective husbands."
The principle to be applied in construing a gift of that sort is laid down in Pearce v. Edmeades[1]. The Lord Chief Baron after expressing an opinion, deferred his judgment until the following day, when he laid down this principle:—"It has been settled by a series of decisions, that the words respectively, in equal shares, when not controlled by other words in a will, shall be taken to indicate the nature of an estate or interest bequeathed, and shall constitute a tenancy in common. But when these words are combined with, or followed by others which would make a tenancy in common inconsistent with the manifest design or the subsequent bequest of the testator, they may be taken to indicate not the nature, but the proportion of the interest each party is to take." The subject matter in contest in that case was a gift very much the same as that in the present case. It was a gift of an annuity to be paid to two grandchildren "during their respective natural lives in equal shares," with a gift over after the death of both of them. The Lord Chief Baron, after laying down the above principle, went on to inquire whether the primâ facie meaning of the words that constitute a tenancy in common, viz., "during their respective natural lives in equal shares" was controlled by the manifest design of the testator as shown by the rest of his will. He pointed out that "the corpus of the residue is not to be divided or possessed by the legatees till after the decease of both" grandchildren, and then he says:— "It is clear, therefore, that the mass of the property is to be divided amongst the children who might survive both the parents, per capita and not per stirpes. This would be quite inconsistent with a tenancy in common of the parents." The Lord Chief Baron did not rely upon their being a gift over, but upon the circumstance that the gift over was to the children of both who might survive both, per capita and not per stirpes, which he says is quite inconsistent with a tenancy in common of the parents. The inquiry was whether there was anything inconsistent with a tenancy in common, and he found something quite inconsistent with it. Therefore he held that there was not a tenancy in common, but a joint tenancy with a right of survivorship.
Applying that rule to the present case, we look to see whether there is in the rest of the will anything to control the primâ facie construction of the gift as a tenancy in common. First, it is said, there is the declaration that the interests of the two daughters are subject to a restraint upon anticipation, and, secondly, that the receipts alone of the daughters shall be a sufficient discharge to the trustees. I find myself unable to see how those matters can affect the question whether the estate was given to the daughters as tenants in common or not. Then the will goes on: "I direct my trustees so soon as may be after the death of the last surviving of my said daughters to sell and convert into money the whole of my said trust estate ... and I direct that my trustees shall stand possessed of the proceeds to arise from such sale and conversion upon trust to divide and pay the same equally between all my grandchildren being the children of my said two daughters." Stopping there, it would be exactly like Pearce v. Edmeades[2]. But the will did not stop there; it went on: "Each of my said daughters' shares going to her own children only." That is treating the shares of the daughters as independent halves which they held independently of one another, and providing that the share of each of his daughters is to go to her children only. There is nothing more in the will to control the primâ facie meaning of the words. There is, it is true, a gift of residue "unto my two daughters ... in equal shares and proportions for their own use absolutely free from the debts and control of their respective husbands," with an alternative gift if the daughters or either of them should die before the testator. But that only confirms the view that the testator intended his property to be divided into two halves for all purposes. It however does not throw much light one way or the other.
The case of Pearce v. Edmeades[3] laid down exactly the same principle that had been laid down by Lord Thurlow in Armstrong v. Eldridge[4]. But is said that some subsequent cases are inconsistent with this view. All those cases turn upon the particular words of particular wills. The case apparently most against the respondents is Cranswick v. Pearson[5], decided by the Court of Appeal in Chancery in 1863. But in that case the learned Judges expressly rested their decision upon the particular words of the will, and did not profess to lay down any rule of construction. The last case before the Court of Appeal on the subject is Bryan v. Twigg[6] before Sir John Rolt L.J., a most eminent Judge. In that case the learned Lord Justice dealt with the argument that it is material to see whether there is a gift over in order to determine whether words primâ facie importing a tenancy in common must receive a contrary construction. He said[7]:—"In some cases, where a gift of income to a class has been followed by words referring to survivorship, the Courts have shown an inclination to construe the gift as creating a joint tenancy, or a tenancy in common with benefit of survivorship; but it is important to observe, that in many of the authorities the duration of the annuity was one of the points to be decided, and I think that where the duration of the annuity is not clearly defined a gift over on the death of the survivor is material, but is immaterial where the duration of the annuity has already been distinctly marked out as extending till the death of the survivor."
In the present case the duration of the trust of the income is expressly defined to be "during the lives of my two daughters ... and the survivor of them." Then follow the words which primâ facie, and if uncontrolled, would give the daughters a tenancy in common. Those words are "to pay the same to my said two daughters in equal shares during their respective lives and the life of the survivor of them." The words "in equal shares" import a tenancy in common, and there is nothing in the other words to cut down that construction. For these reasons we have come to the conclusion that the construction put on the will by the learned Judge of the Supreme Court is consistent with all the cases, and that the appeal should be dismissed. The case of Chatfield v. Berchtoldt[8] cited by Mr. Mackey in which James V.C. applied the principle of Bryan v. Twigg[9], appears to be absolutely indistinguishable from the present case.
As to costs we think that the appellant and respondents should each pay their own costs. Those of the trustees as between solicitor and client should be paid in the same manner and out of the same fund as was directed in the order of the learned Judge of the Supreme Court.
Appeal dismissed.
Solicitors, for appellant, Major & Armstrong, Melbourne.
Solicitors, for respondents, Gibbs, Heales & Davidson, Melbourne; Braham & Pirani, Melbourne.
[1] 3 Y. & C. (Ex.), 246, at p. 252.
[2] 3 Y. & C. (Ex.), 246.
[3] 3 Y. & C. (Ex.), 246.
[4] [1791] EngR 39; 3 Bro. C.C., 215.
[5] 9 L.T., 275.
[6] L.R. 3 Ch., 183.
[7] L.R. 3 Ch., 183, at p. 185.
[8] 18 W.R., 387.
[9] L.R. 3 Ch., 183.