ABIGAIL AND ANOTHER V. PERPETUAL TRUSTEE COMPANY (LIMITED) AND OTHERS

ABIGAIL AND ANOTHER V. PERPETUAL TRUSTEE COMPANY (LIMITED) AND OTHERS

On the true construction of the will and codicil, the appellants acquired vested interests in the whole remainder of the estate in the proportions identified, not only as to two-thirds but as to the whole corpus, with postponement of possession until the specified age and life tenants' deaths, and thus the declaration of contingent interests should be set aside.

Parties
Appellants: Ernest Robert Abigail and Gloria Smedley; Respondents: Perpetual Trustee Company (Limited) & Others
Jurisdiction
Australia
Judgment Date
08 May 1947
Procedural Posture
Appeal / Judgment After Appeal From Supreme Court of New South Wales in Equity
Outcome
Appeal allowed
Legal Topics
Construction of Wills, Vesting of Interests, Presumption Against Intestacy
Succession Law Trusts and Estates Construction of Wills Vesting of Interests Presumption Against Intestacy

Case Brief

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Parties

Ernest Robert Abigail and Gloria Smedley

Appellants

Perpetual Trustee Company (Limited) & Others

Respondents

Procedural Posture

Appeal / Judgment After Appeal From Supreme Court of New South Wales in Equity

Legal Issues

  1. 1 Whether the interests in the remainder of the estate under the will of Ernest Robert Abigail are vested or contingent upon the attainment of age by the beneficiaries
  2. 2 Proper construction of the relevant will and codicil provisions regarding the destination of corpus and income

Ratio Decidendi

On the true construction of the will and codicil, the appellants acquired vested interests in the whole remainder of the estate in the proportions identified, not only as to two-thirds but as to the whole corpus, with postponement of possession until the specified age and life tenants' deaths, and thus the declaration of contingent interests should be set aside.

Court Disposition

Appeal allowed

Orders

  • Declarations in the decretal order under appeal set aside and replaced: appellants hold vested interests in the whole proceeds of sale in the stated proportions.
  • Answered question 1(a), and 4(a) and (b) in the affirmative; question 5 to the effect that the appellants are entitled to one-third of the income of the estate since attaining 21 years until distribution, in the designated proportions.