Bruyn v Perpetual Trustee Co Ltd [1974] HCA 55

Bruyn v Perpetual Trustee Co Ltd [1974] HCA 55

In light of current usage and testamentary intention, the phrase 'children of George Rooke and Ernest Bruyn' includes the children of both nephews, so Ernest Bruyn's children who survived the testatrix are entitled to share in her residuary estate. The residue should be divided per capita among all beneficiaries, as nothing in the will or circumstances justifies division per stirpes.

Jurisdiction
Australia
Procedural Posture
Appeal / Judgment
Outcome
First appeal allowed; second appeal dismissed
Legal Topics
['construction of Wills' 'interpretation of Testamentary Disposition' 'distribution of Estate']
['trusts and Estates'] ['construction of Wills' 'interpretation of Testamentary Disposition' 'distribution of Estate']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ["Whether the phrase 'children of George Rooke and Ernest Bruyn' in the codicil refers to the children of both nephews or to George Rooke's children and Ernest Bruyn individually" 'Whether residual estate should be distributed per capita or per stirpes']

Ratio Decidendi

In light of current usage and testamentary intention, the phrase 'children of George Rooke and Ernest Bruyn' includes the children of both nephews, so Ernest Bruyn's children who survived the testatrix are entitled to share in her residuary estate. The residue should be divided per capita among all beneficiaries, as nothing in the will or circumstances justifies division per stirpes.

Court Disposition

First appeal allowed; second appeal dismissed

Orders

  • ['Decretal order of the Supreme Court of New South Wales varied; declare that children of Ernest Bruyn who survived Eva Clara Mitchell are entitled to share in her residuary estate' 'Second appeal dismissed' 'Costs of all parties of these appeals paid out of the estate; costs of first-named respondent as between...