the F.C. In re MARY KELLY. ANOTHER V. OTHERS. trust (inter alia) to pay her funeral and testamentary expenses (including succession duty) and her just debts. She then declared several trusts in favour of several daughters for life in respect CONNOLLY AND of different lands respectively. And the will then contained trusts of lands for several named grandchildren of the testatrix, which were expressed in similar form and of which following is an example :-" And as to my property in Boundary Street aforesaid being the half next to Charlemount House of the premises known as Royalton' together with the grounds buildings and premises thereof and also my said property No. 3 'Rock Eden' (subject to the aforesaid life interest therein) upon trust for my grandson William Connolly (child of my said daughter Matilda)." Of these lands, so devised by her, one portion, known as "Cooinda," together with the grounds, buildings, and premises thereof, was given upon trust for her grand-daughter Agnes Landy (wife of James Landy). .. The will then proceeded : And as to the rest residue and remainder of my property and estate upon trust for my said grandsons and grand-daughters herein before named in equal shares provided always and I declare that in respect of each of the properties hereinbefore devised in trust for a grandchild of mine my said trustees shall settle and assure the same property (and until such settlement shall themselves hold the same upon trust, subject to the modification hereinafter expressed in the case of my grandchild Agnes Landy) so that the net annual rents and income thereof shall be paid to and (after attaining the age of twenty-one years) collected by such grandchild during his or her life (or in case of a female for her sole and separate use and benefit without power of anticipation or alienation) or until he or she shall alienate or charge the said income or some part thereof or until some other event shall happen whereby if the said income belonged to him or her absolutely he or she would be wholly or partially deprived of the personal enjoyment thereof and in the event of the determination or failure of such grandchild's interest in the said income in his or her lifetime then the trustees of such property may during the residue of his or her life pay and apply such income or any part thereof in their absolute discretion unto or for the maintenance support or benefit of all or any to the exclusion of the others or other of the following objects namely the said grandchild and the children or child and remoter issue F.C. In re MARY KELLY. CONNOLLY AND ANOTHER v. PARROT AND OTHERS. of such grandchild in such shares and manner as the trustees may think fit and from and after the death of such grandchild or such earlier determination or failure of interest and subject to the discretionary powers lastly hereinbefore contained then in trust for the child or children and remoter issue per stirpes of such grandchild in equal shares if more than one and in default of such child or children or remoter issue then in trust for my other said grandchildren hereinbefore named (in equal shares) per stirpes and not per capita and with power in the trustees of such property to apply during minority the whole or part at their discretion of the income of the trust premises or of the income or the share or shares in the trust premises to which any person shall for the time being be entitled under the trusts hereinbefore mentioned for or towards his or her maintenance education or benefit or (if more than one) for or towards their common maintenance education or benefit and with power in the trustees to either so apply the same or pay the same to the parent or guardian of such person or persons for the purposes aforesaid without seeing to the application thereof and to accumulate the surplus (if any) of such income and to resort for the purposes aforesaid to any such accumulation and I declare that my said trustees may insert in such settlements or assurances and in the meantime may and shall themselves have and exercise all such provisions conditions clauses and powers as they may think fit for the leasing managing and preserving of the trust properties and for the better carrying out of the purposes aforesaid or otherwise howsoever I declare that if necessary through deficiency in my personal estate (after satisfaction of the specific and general legacies herein before mentioned) my said trustees may raise out of my real estate (distributing the burden thereof as equally as may be according to their respective values over the whole of my said properties) such sum or sums of money as may be required for the purpose of paying my funeral or testamentary expenses (including succession duty) or just debts I declare that the share or interest taken by any female under the provisions of this my will shall be so taken for her sole and separate use and benefit provided always and I declare that in respect of the properties herein before devised in trust for the said Agnes Landy her husband the said James Landy shall from her death (in case he shall survive her) be entitled for the residue of his life to receive the net annual rents and income thereof for his own use and benefit. In November, 1889, probate of the will was duly granted. The plaintiffs were the trustees of the will. The testatrix left real and personal estate in Queensland to the estimated value of £35,000. The value of the real and personal estate specifically devised and bequeathed was £34,900. The testatrix left her surviving several children, all of whom had since died. At the date of the will and at the death of the testatrix, all her grandchildren mentioned in the said will were unmarried, with the exception of Agnes Landy. Agnes Landy died on 2nd July, 1902, being survived by her husband, James Landy. There was no issue of the marriage. Agnes Landy was survived by all the other grandchildren of the testatrix and by certain great grandchildren of the testatrix. All the grandchildren of the testatrix were beneficiaries under the will, with the exception of one Blanche Clyde. All the grandchildren of the testatrix still survive, with the exception of Agnes Landy and Ivy Blanche Ewing. Ivy Blanche Ewing was the wife of F. A. Ewing, having been married about 18th December, 1907, and she died on 20th July, 1918, having made her will, by which she gave to her husband any money standing to her credit as a legatee in the estate of the late Mary Kelly. There was issue of that marriage three sons, who were all living, born in 1909, 1911, and 1913 respectively. Some of the grandchildren were unmarried, some were married and had issue, and some were married but had no issue. One great-great grandchild of the testatrix was born in 1918, and was still living. The plaintiffs herein were the registered proprietors as trustees in fee simple of the lands and premises in the will referred to as Cooinda." No settlement was at any time executed of any of the properties directed by the will of the testatrix to be settled and assured. The debts, funeral and testamentary expenses of the testatrix, and the legacies given by the will, had all been paid and satisfied, and the duty payable on the death of the testatrix, under and by virtue of The Succession Duties Act of 1886, had also been paid. The following questions of law were stated for the opinion of the Court: (a) What estate or interest do each of the grandchildren of the F.C. In re MARY KELLY. CONNOLLY AND ANOTHER. PARROT AND OTHERS. F.C. In re CONNOLLY AND testatrix in the said will mentioned take-(i.) In the properties specifically devised to them respectively by way of original gift; (ii.) on the death of another such grand child without children or remoter issue? (b) Do any, and if so, which of, the devises in the said will mentioned offend against the rule against perpetuities? If so, will the Court direct the trustees to frame a settlement of the interest comprised in the said devises so offending so as to permit of such interest vesting within the periods prescribed by law? (c) Are the persons who take "Cooinda" to be ascertained by reference to the date of the death of the said Agnes Landy or by reference to the date of the death of her husband, the said James Landy, or by reference to any and what other date? (ii.) Who are the persons entitled to "Cooinda" under the said will and for what interests? (iii.) Is there a power of sale with respect to "Cooinda"? If so, in whom is the said power vested? (d) (i.) What estate or interest do the children of Ivy Blanche Ewing take in the estate of the testatrix? (11.) Is there a power of sale in respect of the Elizabeth Street land devised to George Nolan? If so, is the said power vested? (e) (i.) What estate or interest do the children of a grandchild named in the said will take respectively on the death of their parent in the properties respectively specifically devised to their parent? (i.) Do remoter issue take in competition with their parents? (iii.) In what events do remoter issue take any and what interests under the said will? (f) Is there any intestacy as to any, and if so, what part or parts of the estate of the testatrix ? (g) Was the residue of the estate of the testatrix directed to be settled and retained by the trustees, or was the interest given absolutely to the grandsons and grand-daughters in the said will named? (h) Does the direction in the will of the testatrix directing payment of succession duty refer only to succession duties payable under The Succession Duties Act of 1886, or does such direction include the payment of duties now or at any time payable under The Succession and Probate Duties Act, 1892-1918 ? (1) By whom and out of what funds or fund should the costs of and incidental to this action and special case be paid? Hart, for the plaintiffs. Douglas, for the defendant representing grandchildren. Henchman and Fahey, for other defendants, representing great grandchildren. Gore, for the next-of-kin. Counsel referred to Hancock v. Watson (1), Hawkins on Wills, 2nd Ed., p. 95; Re Canney's Trust, Mayers v. Strover (2), Halsbury, Vol. 28, pp. 714-720, 754, 783; Bisset and Street on Wills, p. 188 ; Halsbury, Vol. 22, p. 341; Re Yates, Bostock v. D'Eyncourt (3), Jarman on Wills, 6th Ed., pp. 915, 1316, 1373, 1790; Pearson v. Stephen (4), Dick v. Lacy (5), In re Alexander, Alexander v. Alexander (6), In re Rawlinson, Hill v. Withall (7), Strahan and Kenrick Digest of Equity, 3rd Ed., p. 65; Sackville-West v. Tiscount Holmesdale (8), White and Tudor Leading Cases, 8th Ed., Vol. II., pp. 785-6; Gardiner & Co. Ltd. v. Dessaix (9), The Succession Act of 1867, s. 36; Halsbury, Vol. XXIII., p. 124; Farwell on Powers, 3rd Ed., pp. 613-615; Turner v. Sargent (10), Wise v. Piper (11), Theobald on Wills, 7th Ed., p. 730; Altson V. Equity Trustees, Etc., Co. Ltd. (12), Jones v. Ogle (13), In re Tinkler, Loyd v. Allen (14), In re Palmer, Palmer v. Palmer (15), In re Stoddart, Bird v. Grainger (16), In re D'Oyley, Vertue v. D'Oyley (17), In re Boxer, Morris v. Woore (18), Archibald v. Commissioner of Stamps (19), In re Sir E. Harvey's Estate (20), Re Miles, Miles v. Miles (21), Doe d. Comerbach v. Perryn (22), In re Ball, Slattery v. Ball (23), In re Ward, Partridge v. Hoare-Ward (24), In re Cobbold, Cobbold v. Lawton (25), Webb V. Hearing (26), Maddison Chapman (27), Byrne Commissioner of Stamps (28). V. The judgment of the Court was read by C.A.V. V. CHUBB J. We answer the questions submitted by the special case as follows: (a) (i.) A life interest in each case. (ii.) On the death of a tenant (1) [1902] A.C. 14. (2) 1910, 101 L.T. 905. (3) [1891] 3 Ch. 53. (4) 1831, 2 Dow. & Cl. 328. (5) 1845, 8 Beav. 214. (8) 1870, L.R. 4 H.L. 543. (9) [1915] A.C. 1096. (10) 1853, 17 Beav. 515. (11) 1880, 13 Ch.D. 848. (12) 1912, 14 C.L.R. 341. (13) 1872, L.R. 8 Ch. 192. (14) [1917] 1 Ch. 242, (15) [1916] 2 Ch. 391, at p. 398. (16) [1916] 2 Ch. 444, at pp. 447-8. (18) [1910] 2 Ch. 69. (19) 1909, 8 C. L.R. 739, at pp. 756-7. F.C. In re MARY KELLY. CONNOLLY AND ANOTHER V. PARROT AND OTHERS. Chubb J. |