King v Perpetual Trustee Co (Ltd) [1955] HCA 70

King v Perpetual Trustee Co (Ltd) [1955] HCA 70

The proper construction of the will required the division of the residuary estate per capita among the children of the named relatives, not per stirpes. The will provided for only one equal division among all children as a composite class, and there was no indication in the language of a double (stirpital) division.

Parties
Appellant: Patrick King; Appellant: Thomas King; Appellant: John King; Appellant: Michael King; Appellant: Edward King; Respondent: Perpetual Trustee Co. (Ltd.); Respondent: Mary A. Hill; Respondent: Shirley Irene Schell; Respondent: Daniel D'Arcy Sheehy; Respondent: Patricia Muriel Bray; Respondent: Patricia Margaret Ford; Respondent: D'Arcy Hubert Ford
Jurisdiction
Australia
Judgment Date
15 December 1955
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal allowed
Legal Topics
Construction of Wills, Residuary Estate, Per Capita and Per Stirpes Distribution
Wills and Estates Equity Construction of Wills Residuary Estate Per Capita and Per Stirpes Distribution

Case Brief

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Parties

Patrick King

Appellant

Thomas King

Appellant

John King

Appellant

Michael King

Appellant

Edward King

Appellant

Perpetual Trustee Co. (Ltd.)

Respondent

Mary A. Hill

Respondent

Shirley Irene Schell

Respondent

Daniel D'Arcy Sheehy

Respondent

Patricia Muriel Bray

Respondent

Patricia Margaret Ford

Respondent

D'Arcy Hubert Ford

Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether the residuary estate under the will of John O'Flaherty should be distributed per capita or per stirpes among the children of certain named relatives.

Ratio Decidendi

The proper construction of the will required the division of the residuary estate per capita among the children of the named relatives, not per stirpes. The will provided for only one equal division among all children as a composite class, and there was no indication in the language of a double (stirpital) division.

Court Disposition

Appeal allowed

Orders

  • Decretal order below varied by striking out the declaration for per stirpes distribution and substituting a declaration that the residuary estate is divisible amongst the beneficiaries per capita.
  • Costs of all parties to be paid out of the estate as between solicitor and client.