ROTTON V. CLIVE & OTHERS

ROTTON V. CLIVE & OTHERS

The word 'surviving' in the trust's gifts over refers to those surviving the propositus (the deceased child beneficiary, not the testator); gifts to grandchildren in these circumstances are by way of substitution and only apply to issue of a child who predeceased the propositus at the relevant time. The estate or issue of a child who predeceased the propositus does not participate in the division of shares which go over, and accrued shares are divided among children and qualifying grandchildren surviving at the time, according to the general tenor of the will.

Parties
Appellant; Executrix of Gilbert D'arcy Rotton (deceased): Annie May Rotton; Appellant; Daughter of Gilbert D'arcy Rotton: Sheila D'Arcy Rotton; Respondent; Trustees of the Will: Perpetual Trustee Co. (Ltd.) & Ors.
Jurisdiction
Australia
Judgment Date
20 December 1951
Procedural Posture
Appeals From a Decretal Order in Equity (originating Summons) / Judgment on Appeal
Outcome
Appeal of Annie May Rotton dismissed. Appeal of Sheila D'Arcy Rotton allowed.
Legal Topics
Construction of Will, Distribution of Estate on Death, Vesting of Interests, Substitutional Gifts
Trusts and Estates Succession Law Construction of Will Distribution of Estate on Death Vesting of Interests Substitutional Gifts

Case Brief

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Parties

Annie May Rotton

Appellant; Executrix of Gilbert D'arcy Rotton (deceased)

Sheila D'Arcy Rotton

Appellant; Daughter of Gilbert D'arcy Rotton

Perpetual Trustee Co. (Ltd.) & Ors.

Respondent; Trustees of the Will

Procedural Posture

Appeals From a Decretal Order in Equity (originating Summons) / Judgment on Appeal

Legal Issues

  1. 1 Whether the estate or issue of a child who predeceased another beneficiary is entitled to participate in an accruing share when gifts over occur under a will
  2. 2 Construction of survivorship and substitutional gifts for grandchildren under the terms of the will
  3. 3 Interpretation and application of the phrase 'according to the tenor of this will' in relation to gifts over

Ratio Decidendi

The word 'surviving' in the trust's gifts over refers to those surviving the propositus (the deceased child beneficiary, not the testator); gifts to grandchildren in these circumstances are by way of substitution and only apply to issue of a child who predeceased the propositus at the relevant time. The estate or issue of a child who predeceased the propositus does not participate in the division of shares which go over, and accrued shares are divided among children and qualifying grandchildren surviving at the time, according to the general tenor of the will.

Court Disposition

Appeal of Annie May Rotton dismissed. Appeal of Sheila D'Arcy Rotton allowed.

Orders

  • Declarations in decretal order under appeal set aside.
  • Declare (in lieu) that upon the true construction of the will and codicil of Gilbert Henry Rotton deceased, and in the events which have happened, the share in the net capital corresponding to Isobel Lilian Scholes' income upon her death became divisible in equal shares between Sheila D'Arcy Rotton, Norman Blackdown...