Cock v Aitken [1908] HCA 32

Cock v Aitken [1908] HCA 32

The unapplied portion of the £800 annuity given by will for the maintenance of Alice Smith, not so applied by the trustees, forms part of the corpus of the residuary estate of the testator, and thus forms corpus of Lucy Smith's estate, not income payable to the life tenant.

Parties
Appellant: Charles Matthew Germain Cock; Respondent: William Aitken; Respondent: John Noall; Respondent: Emily Elizabeth Cock; Defendant: John Matthew Vincent Smith; Defendant: National Mutual Life Association of Australasia Ltd.
Jurisdiction
Australia
Judgment Date
09 June 1908
Procedural Posture
Appeal / On Appeal From Supreme Court of Victoria
Outcome
appeal dismissed
Legal Topics
Will Interpretation, Trusts, Annuities, Residuary Estate, Income and Corpus Distinction
Wills and Estates Will Interpretation Trusts Annuities Residuary Estate Income and Corpus Distinction

Case Brief

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Parties

Charles Matthew Germain Cock

Appellant

William Aitken

Respondent

John Noall

Respondent

Emily Elizabeth Cock

Respondent

John Matthew Vincent Smith

Defendant

National Mutual Life Association of Australasia Ltd.

Defendant

Procedural Posture

Appeal / On Appeal From Supreme Court of Victoria

Legal Issues

  1. 1 Whether unapplied portions of a discretionary annuity are income or corpus under a will
  2. 2 Whether portions not applied for the annuitant become part of the residuary estate as income or corpus

Ratio Decidendi

The unapplied portion of the £800 annuity given by will for the maintenance of Alice Smith, not so applied by the trustees, forms part of the corpus of the residuary estate of the testator, and thus forms corpus of Lucy Smith's estate, not income payable to the life tenant.

Court Disposition

appeal dismissed

Orders

  • The judgment of Hodges J. is affirmed. The sums representing unapplied portions of the £800 annuity are to be treated as corpus of Lucy Smith's estate, not income. Appeal dismissed with costs.