Forsyth v Perpetual Trustee Co (Ltd) [1951] HCA 74

Forsyth v Perpetual Trustee Co (Ltd) [1951] HCA 74

The word 'receive' as used in clause 5 of the trust deed refers to entitlement to receive de jure upon the beneficiary attaining fifty-five years, not to actual receipt. Therefore, the beneficiary's interest vested absolutely upon attaining fifty-five years, and clause 5 does not operate in the event of death before the actual transfer, absent disentitlement or surviving lawful issue.

Parties
Appellant: Walter Wright Forsyth; Appellant: Mavis Baker; Appellant: Lorna Madge Kelso; Respondent: Burns Philp Trust Co. Ltd.; Respondent: William Kelso; Respondent: Perpetual Trustee Co. (Ltd.)
Jurisdiction
Australia
Judgment Date
13 December 1951
Procedural Posture
Appeal / Appeal From Decision of Supreme Court of New South Wales (equitable Jurisdiction)
Outcome
appeal dismissed
Legal Topics
Deed Construction, Protective Trusts, Vesting, Gift Over, Disentitlement, Interpretation of 'received' in Trust Deeds
Equity Trusts Property Law Deed Construction Protective Trusts Vesting Gift Over Disentitlement +1 more

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Parties

Walter Wright Forsyth

Appellant

Mavis Baker

Appellant

Lorna Madge Kelso

Appellant

Burns Philp Trust Co. Ltd.

Respondent

William Kelso

Respondent

Perpetual Trustee Co. (Ltd.)

Respondent

Procedural Posture

Appeal / Appeal From Decision of Supreme Court of New South Wales (equitable Jurisdiction)

Legal Issues

  1. 1 Whether under the proper construction of the trust deed the trust fund vested absolutely in William Edgar Forsyth upon him attaining fifty-five years, notwithstanding his death before actual transfer
  2. 2 Meaning of 'receive' in the context of the trust deed and gift over provisions

Ratio Decidendi

The word 'receive' as used in clause 5 of the trust deed refers to entitlement to receive de jure upon the beneficiary attaining fifty-five years, not to actual receipt. Therefore, the beneficiary's interest vested absolutely upon attaining fifty-five years, and clause 5 does not operate in the event of death before the actual transfer, absent disentitlement or surviving lawful issue.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed with costs
  • Perpetual Trustee Co. (Ltd.) holds the trust fund for Burns Philp Trust Co. Ltd. and William Kelso as executors of William Edgar Forsyth's will absolutely