(Before the Chief Judge, Mr. Justice
CONSTRUCTION OF WILL.
Mr. H. James, of Yass, one of the trustees of the will of the late Mr. Robert Alfred Barber, grazier, formerly of Yass, was plain- tiff in an originating summons taken out for determination of questions of construction of
By his will Mr. Barber left his real and personal estate on trust, for his wife and family. On the youngest child attaining 21 years he directed distribution of his personal estate. As to real estate, the trust was "to divide the same into equal shares or parts and to apportion one share or part to each of my sons for his own peculiar use and benefit during his life and from and after the de- termination of that estate or those estates or either of them by forfeiture or otherwise in their lifetime . . . in trust to hold the same to the use of the first and every other son of the bodies of my said sons severally and succes- sively according to their respective seniorities in tail male and in default of such issue to the use of my own right heirs."
Mr. Barber died in 1897, and his widow in 1928. He left five sons and three daughters. The remaining assets in the estate are an area of 851 acres at Waroo, and certain re- versionary interests under a settlement
executed in 1882.
The questions submitted for determination were—(1) whether Hamilton Hume Barber, a grandson of testator, was entitled to the whole of the real estate subject to the life estates of each of the living sons; (2) whe- ther any interest in the real estate would be taken by a son of Romaine Lance Barber, a surviving son, should a son be born to him; (3) whether any interest was taken in the real estate by the legal, personal representa- tives of the testator.
Argument had not concluded at the adjourn-
Mr. C. M. Collins appeared for the plaintiff trustee, Mr. F. W. Kitto for Hamilton Hume Barber, a grandson of testator, Mr. G. Lytton Wright for the legal personal representatives of the testator (all the foregoing instructed by Messrs. Elrington and Elrington, of Yass, through their Sydney agents, Messrs. Tress, Cocks, and Maddox), and Mr. J. M. Bruxner (instructed by Messrs. H. M. Wragge and Co., of Gunnedah, through their Sydney agents, Messrs. Pigott, Stlnson, Macgregor, and Palmer), for Romaine Lance Barber, co-
trustee with the plaintiff, and unborn chil- dren of the sons of testator.
INTERESTS IN A HOSPITAL.
Clydesdale v Nelson.
This case is reported in another column.
Mr. A. H. Ferguson (instructed by Messrs. Hilliard and Barry) appeared for plaintiff, and Dr. Louat (instructed by Mr. R. M. Duncan) for respondent.
(Before Mr. Justice Nicholas.)
MR. T. H. MACPHERSONS WILL.
The late Mr. Tertius Horatio Macpherson, by his will, devised and bequeathed his estate (about £18,000) upon trusts identical, except as to his life estate, with those contained m a settlement executed by him. By this he settled the whole of his property on trust for himself, and directed that after his death the income should be held on certain trusts until the death of the last surviving child of his daughter, his brother, and of another per- son, and that, subject to these, the trustee should hold the trust premises on trust as to half for the child or children of his brother, who should attain 21 years, and as to the other half for the child or children of his daughter by any husband other than her present hus-
In a judgment, given on July 26, his Honor held that the directions in the will to pay the income to certain persons, subject to one- half of the trust premises being upon trust for the child or children who should attain 21 years of his brother, were void for remote- ness. There then remained for consideration questions relating to the other half of the capital and to a gift of the whole of the trust premises. The first of these gifts was in the lollowing terms:—"Upon trust as to the other half for the child or children, if more than one in equal shares, of my said daughter by any husband other than her present husband, the said Douglas Bird, whether by or during the present or any remarriage." It was argued that this gift was void because it was depen- dent upon a gift which was itself too remote.
In the course of judgment his Honor said he did not think that the gift was ulterior to or dependent upon a prior void gift in the sense that these adjectives were used in Re Coleman (1936, 1 Ch.) and other cases. The gift of the second half of capital was, in his opinion, independent of the gift of income, although intended to take effect when pay- ments of income ceased, and, as the persons to take indefeaslbly vested interests must be born within the limits of the rule, he held that the gift was a good gift to the children of the testator's daughter by any husband other than her present husband.
The gift was followed by the words "subject as aforesaid upon trust as to the whole of the trust premises for the children of Peter Dunn who shall attain the age of 21 years, in equal shares." It was contended that this gift was void because, although the children of Peter Dunn who should attain the age of 21 years must be ascertained within the limits prescribed by the rule, the gift was ulterior to and independent on gifts of income and capi- tal which were themselves bad. His Honor on this point said that, in his opinion, the gift to the children of Peter Dunn was a residuary gift, and therefore included gifts which had failed through operation of law or otherwise.
Mr. F. W. Kitto (instructed by Messrs. Maund and Kelynack) appeared for the trustees of the settlement; Mr. R. S. Murray prior (instructed by Mr. Nathan J. Payne), Mr. G. Amsberg and Mr. Malor (instructed by Mr. J. H. Yeldham), Mr. David Wilson (in- structed by Messrs. Minter, Simpson, and Co.), and Mr. M. L. Hardie (instructed by Mr. Robert Lloyd) for various defendants.
LATE MRS. KIRBY'S WILL.
On the application of Mr. E. F. McDonald (instructed by Mr. Vincent Brady), leave was given the Returned Soldiers' League to inter- vene at the hearing of the summons taken out by the Perpetual Trustee Co., as trustee of the will of the late Mrs. Elizabeth Kirby, and to which the Attorney-General for New South Wales is defendant.
The questions arising are as to the validity of the trusts under which Mrs. Kirby dis- posed of her residuary estate, amounting to about £130,000. She left this for the relief of necessitous returned soldiers, their widows, children, and grandchildren by a scheme of settlement on virgin land within 50 miles of the G.P.O., Sydney. Doubts have arisen, for reasons which have already been published, as to whether it is practicable to give effect to these trusts.
DISTRIBUTION OF UTHER ESTATE.
The Court was engaged during the greater part of the day in further consideration of questions arising in administration of the
trusts of the will of Mr. Reuben Uther, who died in 1880.
The estate had been administered for over 50 years on the basis of the trusts for sale of real estate and distribution being valid, but it was recently held that the trusts failed for infringement of the rule against perpe- tuities. The material questions for argument yesterday were as to the liability of overpaid beneficiaries to recoup the estate. Two aspects of this general question were, first, in respect of cases where beneficiaries having
direct interests had been overpaid, and, se- condly, where the beneficarles having interests derived from subsidiary wills and settlements claimed under such instruments. One in- stance was that of a son of one of testator's daughters, who was the sole executor and legatee of his mother, and payments had been made to him as a beneficary under the head will, which should have been made to his mother's estate.
His Honor held that this lastmentioned beneficiary was in no better position, so far as recoupment went, than if he had been a claimant directly under the head will, and that the same principle applied to all other children of testator's daughters, who had received payments originally made to them as direct beneficaries. Thus all such bene- ficaries will now be required to bring into ac- count payments going to subsidiary estates in which they were interested before receiving a share of the remainder of the residuary estate not yet distributed.
Further questions remain for argument next week.
Mr. R. K. Manning (instructed by Messrs. E. S. Dunhill and Barker) appeared for the plaintiffs and the various defendants were represented by the following:—Mr. Mason K.C., and Mr. E. W. Wickham (instructed by Mr. C. M. P. Horan), Mr. Weston, K.C., and Mr. H. W. Moffltt (instructed by Messrs. Hawdon and Hawdon, of Gloucester, through their Sydney agent, Mr. Aubrey Halloran), Mr. F. W. Kitto (instructed by Messrs. Hawdon and Hawdon, of Gloucester), Mr. J. F. Molloy (in- structed by Messrs. Holdsworth, Summers, and Garland), Mr. Bonney, K.C., and Mr. David Wilson (instructed by Messrs. E. S. Dunhill and Barker), Mr. R. S. Murray-Prior (instructed by Messrs. E. S. Dunhill and Barker); and Mr. Dudley Williams, K.C., and Mr. J. K. Emerton (instructed by Messrs. W. A. Glider, Son, and Co.).