Campbell v Glasgow [1919] HCA 57; (1919) 27 CLR 31 (5 November 1919)

HIGH COURT OF AUSTRALIA

Campbell and Another Defendants, Appellants; and Glasgow and Others Plaintiffs and Defendants, Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

5 November 1919

Knox C.J., Isaacs, Gavan Duffy and Rich JJ.

R. E. Hayes, for the appellants.

A. H. Davis, for the respondent trustees.

Owen Dixon, for the respondents Elys.

H. Walker, for the respondent McKay.

R. E. Hayes, in reply,

The following judgments were read:—

Nov. 5

Knox C.J. and

Gavan Duffy J.

The substantial question for decision on this appeal is whether a devise of real estate contained in the will of Robert Cust, deceased, conferred on Rosetta Campbell an estate for life only or an estate tail.

The relevant portions of the will are in the following words:—"I devise all my real estate unto and to the use of my said trustees upon the following trusts that is to say ... as to all that piece or parcel of land" (then follows a description of certain parcels) "Upon trust for my daughter Rosetta Campbell during her life and upon her death then as to the said lands and tenements and the rents and profits thereof Upon trust for her lawful issue and if more than one as tenants in common And if there be no lawful issue then I further direct that one-fourth part of the value of the said lands and tenements in the said trust is hereby devised to the lawful husband of the said Rosetta Campbell should such survive her death and the remaining three-fourths value of the said lands and tenements shall be equally divided between my said son Alfred William Barkly Cust and my daughters then surviving notwithstanding the bequests herein contained as regards my daughter the said Rosetta Campbell the same shall be subject to the condition that my wife the said Matilda Jane Cust shall during her life have the right to the free use and occupation of the house and ground known as Glencoe in Timor Street Warrnambool and also the rents and profits of the coach factory property in Fairy Street Warrnambool during her life as herein provided ... Providing always and I do hereby expressly declare and direct that if any of my said sons or daughters shall do or suffer any act or thing whereby his or her interests in the rents and profits of the lands hereinbefore mentioned shall be alienated or encumbered or shall by any means vest in any other person or persons other than such son or daughter to whom I have directed the same to be paid then the trusts hereinbefore contained in favour of such son or daughter shall as to the rents and profits which shall so vest in or become payable to any other person or persons thenceforth absolutely cease and the said rents or profits shall during the remainder of the life of such son or daughter be applied in the same manner as if such son or daughter were dead I devise my residuary estate to my said trustees upon trust to sell the same and pay the proceeds of such sale to my said son Alfred William Barkly Cust and my said daughters equally."

The testator died on 24th February 1901, and Rosetta Campbell died on 23rd November 1917 intestate, without having had issue, leaving her brother Alfred William Barkly Cust and her sisters Maria Jane Ely and Elizabeth Curtis surviving her. The will was made after the passing of the Wills Act 1890, sec. 26 of which is reproduced in sec. 26 of the Wills Act 1915. That section is as follows: "Where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will." The words are identical with those of sec. 28 of the English Wills Act.

By the order of the Supreme Court against which this appeal is brought it was declared that Rosetta Campbell took an estate for life only in the lands so devised in her favour. This decision was arrived at by a majority of the Judges sitting in the Full Court—the decision of Hodges and Cussen JJ. prevailing over that of the Chief Justice, who held the view that Rosetta Campbell took an estate tail under the devise in question. For the appellants it was contended that in this devise "issue" must be construed as "heirs of the body," that the rule in Shelley's Case is applicable, and that by force of that rule Rosetta Campbell took an estate tail. For the respondents it was contended that as words of distribution were attached to the gift in remainder to the issue of Rosetta Campbell, and as such issue, if taking as purchasers, would take an estate in fee simple by virtue of sec. 26 of the Wills Act, the case fell within the reasoning of the decisions in Lees v. Mosley[1] and Bradley v. Cartwright[2], and that the rule in Shelley's Case did not apply, and Rosetta Campbell took only a life estate. For the appellants reliance was placed on the statements of the law contained in the speeches of Lord Macnaghten and Lord Davey in Van Grutten v. Foxwell[3], particularly those found at pp. 667, 668, 684, 685; on the similarity of the devise in the present case to that which was the subject of decision in Roddy v. Fitzgerald[4]; and on the observations on the effect of the Wills Act in such cases made by Porter M.R. and Naish L.J. in Sandes v. Cooke[5]. With regard to these arguments it may be observed that in Van Grutten v. Foxwell[6] the words used were "heirs of the body," and that the will was made before the Wills Act; that in Roddy v. Fitzgerald the will was made before the Wills Act, and there were no words of limitation attached to the word "issue"; and that in Sandes v. Cooke there were no words of distribution among the issue. This distinction appears to us to be important, because the use of words of distribution applied to the issue, though not in itself sufficient to disturb the primâ facie meaning of "issue" as a word of limitation, does tend to show that the testator had in mind not the whole succession of his descendants but a more limited class. Moreover, the fact that Porter M.R. does not refer in his judgment to the opinions expressed in Jarman on Wills and Hawkins on Wills, which we refer to later, leads to the conclusion that those statements had not been brought to his notice, and they do not appear to have been cited in the Court of Appeal. It is, in our opinion, settled by the authorities that, although the primâ facie meaning of the word "issue" in a devise to A and his issue is "heirs of the body," "issue" is a more flexible word than "heirs of the body," and that its primâ facie meaning as a word of limitation yields more readily to the context of the will than that of the more technical term "heirs of the body." It seems that the reason for construing "issue" as "heirs of the body" was that in the case of wills made before the Wills Act a gift to "issue," without words of limitation attached, passed no more than a life estate, and consequently the only way of construing such a will so as to confer an estate which might pass to the whole issue in succession was to construe "issue" as "heirs of the body." Accordingly, if in a will made before the Wills Act the word "issue" had attached to it words of limitation such as "and their heirs" as well as words of distribution such as "as tenants in common," the reason for construing "issue" as equivalent to "heirs of the body" and applying it as a word of limitation no longer existed, for the words of distribution tended to show that the whole line of issue was not intended to take, and the words of limitation were sufficient to carry the fee simple to the issue if taking as purchasers, and consequently in such a case the operation of the rule in Shelley's Case was ousted. This appears to be the ground of the decision in the case of Lees v. Mosley[7], and the rule to be deduced from that decision may be stated thus: "Where words of distribution, together with words which are capable of carrying an estate in fee, are annexed to a gift to issue following a gift for life, the ancestor does not take an estate tail but an estate for life only."

But in the devise now under discussion there are no words of limitation attached to the word "issue," and consequently the rule in Lees v. Mosley[8] is not applicable unless the provisions of sec. 26 of the Wills Act can be used to supply the omission. It is suggested in the judgment of the Chief Justice that this cannot be done without violating the rule that before determining the legal effect of a devise the will must be construed according to established canons of construction, but we cannot agree that any canon of construction is violated by placing on the word "issue," when used in a devise contained in a will made since the Wills Act, the same meaning as would have been given to the expression "issue and their heirs" in a will made before the Wills Act. It cannot, we think, be disputed that, in order to ascertain whether words contained in a devise are capable of carrying an estate in fee to the devisees, regard must be had to the state of the law existing at the relevant time. Sec. 26 of the Wills Act, and the earlier enactments in the same terms which it replaced, in effect provide that in wills made after the passing of the original Act containing that provision a devise to a person without words of limitation shall be as effective to carry an estate in fee as would a devise to such person and his heirs if contained in a will made before that Act. Although the question now under consideration appears never to have been raised for decision, the view taken by us of the effect of sec. 26 of the Wills Act is supported by the opinions expressed in leading text-books (see Jarman on Wills, 6th ed., pp. 1950-1951, a passage which appeared originally in the 2nd edition published in 1855, and has been repeated in successive editions ever since; see also Hawkins on Wills, 2nd ed., pp. 235-236; and Leake on Property, 2nd ed., p. 140). Moreover, the inference may fairly be drawn, from the emphasis laid by Lord Cranworth in Roddy v. Fitzgerald[9] on the fact that the will then under discussion was made before the Wills Act, that he took the same view as that expressed in the text-books referred to above, and the statement of Lord Wensleydale in the same case at p. 883, commenting on the decision in Kavanagh v. Morland[10], points in the same direction. In our opinion considerable weight should be attached to the fact that although this opinion has been expressed in the leading text-book on wills ever since the year 1855, no case raising the question has come up for decision, and the only expressions of opinion to the contrary to which we have been referred are those contained in Sandes v. Cooke[11] and in Theobald on Wills, 7th ed., p. 422. For these reasons we are of opinion that the rule which we have described as the rule in Lees v. Mosley is applicable to the devise now under consideration, and that, applying that rule, the result is that Rosetta Campbell took only an estate for life under the devise in question. It was suggested that the decision in Lees v. Mosley could not be relied on since the decision of the House of Lords in Van Grutten v. Foxwell[12], but we can see no ground for this suggestion. In the will under consideration in Van Grutten v. Foxwell the expression used was "heirs of the body" and not "issue," and there were no words of limitation attached to that expression. There was no reason for dealing with the decision in Lees v. Mosley in that case, and we cannot see that the authority of the earlier decision was in any way impeached by the later.

Whether the effect of the Wills Act would be the same in the case of a will in which the expression used was "heirs of the body" and not "issue" is a question on which we think it is unnecessary to express an opinion at present. The decision being that Rosetta Campbell took only an estate for life, and the fact being that she died without having had issue, it is unnecessary to decide what persons would take under the gift to her issue. It is also unnecessary, in view of the opinion expressed above on the construction of this will, to decide what has been the effect of sec. 62 of the Real Property Act 1915 upon the construction of a devise to a person for life and on his death to the heirs of his body, or to a person for life and on his death to his issue.

In our opinion the appeal fails, and should be dismissed. The parties have agreed to the costs of all parties of this appeal being ordered to be paid out of the estate of the testator, and we see no objection to an order being made to that effect.

The order will be that the appeal be dismissed and the costs of all parties of the appeal be paid out of the estate of the testator, as between solicitor and client. Costs to be raised as ordered in Court below.

Isaacs J.

Whether Rosetta Campbell took in law an estate in fee simple, or merely a life estate, under her father's will depends on whether those who, according to the verbal terms of the gift, were remaindermen, were intended by the testator to take by descent or by purchase. That is the question in every case where the rule in Shelley's Case is involved. The crucial passage in the will refers to them as "her lawful issue," and the problem is: What did the testator mean by that expression? Did he mean the "heirs of her body" or her descendants in a particular sense? If the former, then Rosetta had an estate of inheritance; if the latter, she had an estate for life only.

There emerged from the argument three distinct contentions supporting the view that by "issue" the testator meant particular descendants. As this is, so far as I know, the first case in which two of those contentions have called for direct decision, I propose to deal with them separately. They are: first, that upon the language of the will itself—apart from any reference to the Real Property Act, sec. 62, or to the Wills Act, secs. 26 or 27, the word "issue" ought to be construed in the less comprehensive sense; next, adding to the actual words of the lawyer-drawn will the wellknown effect of sec. 62 of the Real Property Act, the same result is attained; third, failing the other contentions, the combined effect of the tenancy in common and sec. 26 of the Wills Act is to confer an estate in fee simple on particular descendants, and make them the stock of a new descent, leaving Rosetta a mere tenant for life. In considering all these contentions, it cannot too constantly be borne in mind that the inquiry always is: What is the testator's expressed intention? He may have expressed his intention in specific terms, or he may have expressed it elliptically; but, whether explicit or implicit, the intention given effect to must be the fair meaning of his own words.

The all-important consideration to bear in mind is that the quest in relation to this third contention is precisely the same as before, namely, the true meaning of the word "issue"; and it will be found in the end that the principal guide is found in the two cardinal principles stated by Lord Davey in the Indian case referred to, though in their application a subsidiary common law rule of construction of vital importance has to be applied.

Sec. 26 of the Wills Act is itself a statutory rule of construction. It occurs in Part II. of the Act under a general heading "Construction of Wills," and it declares that "where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple," &c., "unless a contrary intention shall appear by the will." Of course, the conditions predicated by the section must be satisfied; and whether or not they are satisfied is the real contest on this branch of the case. There is, in the first place, no inherent objection to the use of the word "issue" or even "heirs of the body" as indicating a "person" within the meaning of the section, because such devisees are individuals and therefore natural "persons" (Wills v. Palmer[32]; Cholmondeley v. Clinton[33]; and see Garland v. Beverley[34]). In Jesson v. Wright[35] Lord Eldon L.C. says: "Heirs of the body mean one person at any given time; but they comprehend all the posterity of the donee in succession." In Foxwell v. Van Grutten Lord Macnaghten says[36]: "Heirs of the body who take by descent are just as much human beings and just as much individuals as heirs of the body who take by purchase." The remainder, as observed in Challis on Real Property, 3rd ed., at p. 152, if taken by the heirs as purchasers, would be a contingent remainder of Fearne's fourth class, being a limitation in remainder to a person not yet ascertained or not yet in being; and see in that connection the judgment of Bayley J. in Doe d. Bosnall v. Harvey[37] and the observation of Lord Macnaghten in Foxwell's Case[38], as to the first in the line carrying off the whole estate or the whole share, as the case may be, leaving nothing for those who come after. Indeed, but for the rule in Shelley's Case, "heirs," it is conceded, would take by purchase even if the instrument be the same. But if the instruments be different, as if an estate for life be limited to A with remainder to the heirs of B, and A grant his estate to B, the heirs take by purchase. And if even by the same instrument the ancestor's estate be equitable, the trustees having the legal estate, but remainder to the heirs of A, the heirs take by purchase. These are commonplaces (Watkins on Descents, pp. 198, 202), but they show that "heirs of the body" are "persons." Then, do the "issue" take a devise so as to satisfy sec. 26 of the Wills Act? If "issue" retains its legal import, they do not. They take nothing in that case by purchase: the whole estate is in the ancestor, and there is nothing on which sec. 27 of the Wills Act can operate. But if on the true construction of the will "issue" has not that meaning, then the ancestor has only a life estate and there is a devise to the "issue." The question then is, has "issue" in this will a restricted meaning?

The decisions already referred to establish that words of distribution alone will not restrain the force of either the word "issue" or the term "heirs of the body." The reason is that, so long as those terms on a proper construction retain their primary import, the law requires descent and in succession, and any personal provision or direction to the contrary is repugnant, and therefore void, and must be disregarded (per Lord Macnaghten in Foxwell's Case (Second Appeal)[39]). If, however, inconsistent expressions are found which, on a true reading in accordance with accepted methods of construction, alter the meaning of the terms themselves, so that they no longer retain their primary import, the matter is changed. Nothing could more clearly or forcibly contrast the two positions than the luminous judgment of Cockburn C.J. in Jordan v. Adams[40]. So long as "the fatal words," as he terms them, remain, the law inexorably fastens on them its own consequences, regardless of the testator's personal intention; but if, by some explanatory context, the testator clearly shows he did not mean those words in a "fatal," but in a popular, sense, that intention is given effect to.

But while this statement of the position is perfectly clear, it presupposes that the Court has determined whether the terms in question are or are not to have their primary meaning, notwithstanding the presence of the inconsistent expressions; and the real difficulty here arises as to the principle to be applied in distinguishing the cases where they should, and those where they should not, be allowed to alter the primary import of the term used. A clue is found in the reason for making the word "issue" in a devise the primâ facie equivalent of "heirs of the body." Wood V.C., in Jackson v. Calvert[41], and Lord Parker (then Parker J.), in In re Coulden; Coulden v. Coulden[42], state that reason. Once the Court found the testator's main purpose was to benefit the whole line of issue, then, notwithstanding the absence of any words of limitation which would give effect to it, the Court, to effectuate that predominant intention, read the word "issue" as itself a word of limitation, and so gave to the ancestor an estate in fee tail. This was, indeed, nothing more than applying to the word "issue" the same consideration as, in adopting the rule in Shelley's Case, had been applied to the word "heirs" or "heirs of the body"—namely, the controlling influence of the main purpose of the testator at a time when in no other way that purpose could have been effectuated (see Challis, at p. 167, note). But though the reason affords a clue, it does not completely solve the problem. So far the word "issue" was, by virtue of the principle of "main purpose," placed as high as "heirs of the body." So far the word "issue" is elevated quite apart from and unaffected by any words of modification, and the two expressions are primâ facie on precisely the same level, and are words of limitation.

It is in the further use of the principle, when it is sought to depose the word "issue," that I think the real key to the problem is found. And if it is the key as to "issue," it must be as to "heirs of the body," which for this purpose is interchangeable. After the Courts had accepted "issue" as equivalent to "heirs of the body" whenever by the use of that word the testator's main purpose of benefiting the issue indefinitely appeared in a will—that is, whenever the word "issue" was used without any explanatory context showing clearly it was used in a more restricted sense than the whole line of descent—the Court, true to the principle it had adopted, disregarded any repugnant but minor provision (see Doe d. Blandford v. Applin[43]). As Lord Redesdale said in Jesson v. Wright[44]: "It has been argued, that heirs of the body cannot take as tenants in common; but it does not follow that the testator did not intend that heirs of the body should take, because they cannot take in the mode prescribed." And see Doe d. Bosnall v. Harvey[45]. The main purpose being that the whole line of descent should take, that must be preserved; the minor purpose, namely, taking concurrently, being impossible, must give way, because unless it gave way the main purpose could not stand.

Lord Kenyon, in Doe d. Candler v. Smith[46], where the phrase "heirs of the body" was used, says: "It is a rule of construction in cases of this kind, settled by a variety of decisions, but particularly by that of Robinson v. Robinson51 Burr., 38. first in this Court and afterwards in the House of Lords, that where it appears in a will that the testator had a general intention and also a secondary intention, and they clash, the latter must give way to the former." In Jarman, 6th ed., at p. 1891, the principle is thus stated: "To make expressions of this nature the ground of such an interpretation" (that is, to cut down the legal import of the expression "heirs of the body") "is to sacrifice the main scope of the devise to its details." The principle of Candler's Case establishes for this class of case what I may call the line of demarcation. Where even before the Wills Act the major purpose could stand along with the minor purpose of the testator, effect was given to both. That is the basis of the cases which establish that where in addition to words of distribution there are found words of limitation carrying the fee to the issue, the issue then take as purchasers. In Roddy v. Fitzgerald[48] Crompton J., with whom Lord Wensleydale agreed, said: "It is still necessary for the purpose of vesting such estate in the issue that there should be some such words" (that is, "to the issue and their heirs" or "estate") "or necessary implication as, in the construction of a will, can by the rules of law vest the fee in the issue." But before the Wills Act, in the absence of some words of limitation or their equivalent, the issue as purchasers could not take the fee. They would take for life only. And, said Wood V.C. in Kavanagh v. Morland[49]: "In looking at a will of this kind" (similar to the present will), "I must first consider whether, by the original gift to the issue, they take an absolute interest; in which case there would be no necessity to imply an estate tail in the parent in order to prevent the gift over taking effect until a complete failure of the issue." The Wills Act, sec. 26, however, completely alters the situation. Where it applies, the will is to be "construed," that is, it is to be read as meaning, just as much as if the testator expressly said so, that the fee simple should pass to the devisee.

If then the "issue" or the "heirs of the body" can be regarded as "persons" (and I have shown that they can), and if there be no contrary intention—that is, if the will itself expressly or (apart from the debatable construction in controversy) impliedly makes no other disposition of the fee simple, so that the "issue" can take it if the section be applied, and if there be words of distribution which are repugnant to the ordinary incidence of an estate tail, as there are in the present case—then in the case supposed there is no reason, so far as I can see, why the Court, for the very purpose of deciding whether or not "issue" has its primary import, should not consider whether, as Lord Kenyon says, there is a "clash" of intention, general and secondary, or whether a possible construction should not be adopted by which effect is given to the full intention of the testator, both his main intention and his subordinate intention, on ordinary principles of interpretation.

The effect of the section was common knowledge when the will was made, and that is a material aid to arriving at a testator's intention. In this respect the present case is the converse of Foxwell's Case; and a few words of Lord Macnaghten on the second appeal[50] are very much in point. He said:—"At the date when this will was made a gift of lands, tenements, and hereditaments to a designated person was a gift for life merely, and not a gift in fee. It is difficult to suppose that the person who drew the will was ignorant of an elementary rule of law which at that time was common knowledge with all lawyers, good, bad and indifferent." And the learned Lord regarded this as an aid to the construction of the will.

So here, the same reasoning, with the circumstances and, therefore, the effect reversed, assists in gathering the intention of the testator. But his intention as to what? Simply as to the meaning he attached to the word "issue."

That this is a legitimate consideration equally applicable whether the expression be "issue" or "heirs of the body" appears clearly from the direct references by various Judges to the Wills Act in Roddy v. Fitzgerald[51] and indirectly by Jessel M.R. in Morgan v. Thomas[52], and by Lord Macnaghten in the passage above cited from Foxwell's Case and by Lord Davey in the same case[53].

I agree with what the learned Chief Justice has said as to the importance of the observations in Jarman for so long a period. Applying the section, as I have stated, I simply read its provision into the will for the purpose of construction, as well as of legal effect, as if the testator had said the "issue" should have the fee simple, and then, considering the effect of that provision together with the words of distribution, I arrive at the conclusion as a matter of interpretation of the word "issue." In accordance with the Privy Council rule I ask myself whether I am judicially perfectly clear—by the demonstrative force of the context—that "issue" is not used in its primary legal sense, but in a restricted sense indicated by the testator. I answer that it is restricted, and means the particular descendants existing at the death of Rosetta Cameron, and that the gift to them is an original gift and not a gift by descent, and that she took a life estate only.

I therefore agree that this appeal should be dismissed.

Rich J.

I have had an opportunity of reading the judgments just delivered by the Chief Justice and Isaacs J., and agree with them.

Appeal dismissed. Costs of all parties to the appeal to be paid out of the estate of the testator as between solicitor and client. Costs to be raised as ordered in the Court below.

Solicitors for the appellants, A. G. Proudfoot & Turner, for J. S. Tait, Warrnambool.

Solicitors for the respondents, C. H. Lucas for W. H. McMahon, Warrnambool; W. Rogers Thomson for Molesworth, Warrnambool; Courtney & Dunn for Dunne, Warrnambool.