Smidmore v Smidmore [1905] HCA 58

Smidmore v Smidmore [1905] HCA 58

The court held that the will and codicil, properly construed, create an estate for the son for life determinable on attempted alienation, with a valid gift in remainder to his children or remoter issue who attain 21 or die under that age leaving issue; the words suggesting otherwise are to be read as surplusage or rejected as inconsistent, and the trustees’ power to pay the son’s wife after forfeiture is valid. There is no uncertainty or infringement of the rule against perpetuities as to prevent the trust in favour of issue taking effect.

Parties
Plaintiff/appellant: Francis Paul Smidmore; Plaintiff: Blanche Rose Lennon Smidmore; Respondent/defendant: Joseph Sarsfield Smidmore; Respondents/defendants: Other Defendants (not individually named)
Jurisdiction
Australia
Judgment Date
19 December 1905
Procedural Posture
Appeal / On Appeal From Supreme Court of New South Wales (equity Division), Decision of A.h. Simpson C.j. in Eq.
Outcome
Order of Chief Judge in Equity varied: declared there is a valid trust in favour of the children or remoter issue of the plaintiff; costs of the appeal to be paid out of the estate.
Legal Topics
Testamentary Construction, Restriction on Alienation, Rule Against Perpetuities, Interpretation of Wills, Trust for Issue/remoter Issue, Dependent Relative Revocation
Wills and Estates Equity Trusts and Trustees Testamentary Construction Restriction on Alienation Rule Against Perpetuities Interpretation of Wills Trust for Issue/remoter Issue +1 more

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Parties

Francis Paul Smidmore

Plaintiff/appellant

Blanche Rose Lennon Smidmore

Plaintiff

Joseph Sarsfield Smidmore

Respondent/defendant

Other Defendants (not individually named)

Respondents/defendants

Procedural Posture

Appeal / On Appeal From Supreme Court of New South Wales (equity Division), Decision of A.h. Simpson C.j. in Eq.

Legal Issues

  1. 1 Construction of will and codicil—whether a gift in remainder to issue is void for uncertainty or as infringing the rule against perpetuities; whether the disposition for the son and his issue is valid; effect of attempted alienation by the son; validity of trustees' power to pay income to the son's wife after forfeiture.

Ratio Decidendi

The court held that the will and codicil, properly construed, create an estate for the son for life determinable on attempted alienation, with a valid gift in remainder to his children or remoter issue who attain 21 or die under that age leaving issue; the words suggesting otherwise are to be read as surplusage or rejected as inconsistent, and the trustees’ power to pay the son’s wife after forfeiture is valid. There is no uncertainty or infringement of the rule against perpetuities as to prevent the trust in favour of issue taking effect.

Court Disposition

Order of Chief Judge in Equity varied: declared there is a valid trust in favour of the children or remoter issue of the plaintiff; costs of the appeal to be paid out of the estate.

Orders

  • Order as to there being no valid trust in favour of the children or remoter issue varied to declare valid trust in their favour.
  • Order as to validity of trustees’ power to pay income to wife in case of forfeiture stands.