[1938] EACA 186

### ORIGINAL CIVIL

#### BEFORE SIR JOSEPH SHERIDAN, C. J.

# IN THE MATTER OF THE ESTATE OF IVO MURRAY MURTON, DECEASED, AND IN THE MATTER OF THE WILL OF THE SAID DECEASED, AND IN THE MATTER OF THE TRUSTEE ORDINANCE, 1929,

#### Between

FREDERICK RAPER AS EXECUTOR AND TRUSTEE OF THE WILL OF IVO MURRAY MURTON, DECEASED, Plaintiff

and

### MRS. ELIZABETH MURTON, First Defendant

### MURRAY MURTON (A MINOR), Second Defendant

# GILIAN MURTON AND JUDITH MURTON (BOTH MINORS). **Third Defendants**

### Civil Case No. 92 of 1938 O. S.

Will—Construction—Vested or contingent interest—Trusts—Joint tenancy.

A testator disposed of his real and personal residuary estate to trustees for the benefit of the defendants by clauses 4 and 5 of the Will, which were as follows: -

"4. I hereby bequeath unto my Trustees all the residue of my estate with the exception of the proceeds of my life insurance policy absolutely on trust.

(a) To sell, call in or convert into money my property at such time or times and in such manner as they shall think fit and so that they shall have the fullest power and discretion to postpone the sale calling in or conversion of the whole or any part or parts of the said property during such period as they shall think proper and to retain the same or any part thereof in its present form of investment without being responsible for loss.

(b) To pay therefrom all my just debts testamentary and funeral expenses.

(c) Upon trust to invest at the sole and absolute discretion of my Trustees my property or the proceeds of the sale calling in and conversion of my said property in any security for the time being authorized by law or in first mortgages over immovable property or in the funds of a building society of good repute with power at their discretion to vary such securities and to apply the income therefrom in the manner following: $\rightarrow$

$(d)$ Upon trust to pay annually to my wife Elizabeth Murton so long as she remains unmarried one half of the net annual income of my estate. In the event of the marriage or death of my said wife, I direct my Trustees to apply the said one half net annual income for the benefit of my daughters Gillian and Judith.

(e) Subject to clause 4 sub-clause (d) hereof and the provisions contained therein upon trust to apply the income derived from my estate or so much as my Trustees may deem desirable for

the maintenance and education and benefit of my said son Murray Murton at such school or schools as my Trustees may approve and thereafter at Cambridge University if my son should so wish and funds are available.

(f) My Trustees shall stand possessed of my said property $f$ and the income thereof on trust for my said son Murray Murton until he attains the age of twenty-five with power to my Trustees in their discretion to apply any part of the capital of the said<br>property for the advancement of my said son during the subsistence of this trust as they may think fit.

(g) I hereby direct that my said son on attaining the age of twenty-five years shall stand possessed of my property and the income thereof one half share of such income unto my said wife and daughters pursuant to the terms and conditions contained in clause 4 sub-clause $(d)$ hereof and shall hold the capital and residue of the income of my said property upon trust for himself and I hereby further declare that my said son shall have full and unfettered power without being responsible for loss or alterations in investments and shall be at liberty to invest the capital moneys in any investments as in his uncontrolled opinion he shall think fit and shall have power of retaining any investment in its then present form.

(h) In the event of my son dying before reaching the age of twenty-one or of dying intestate before the age of twenty-five I direct my Trustees to realize my property and pay and make over the proceeds between and among my wife and daughters equally or where any such daughter has died among the issue of such deceased daughter such issue taking *per stirpes* their deceased parent's share.

5. I hereby direct my Trustees to hold upon trust for my said son Murray Murton the proceeds of my life insurance policy until my said son shall attain the age of twenty-five years with power to my son to dispose of the same by will upon attaining the age of twenty-one years. I further direct that during the subsistence of this Trust my Trustees shall have full and uncontrolled power of investing the proceeds of the said insurance policy in any of the investments authorized and or mentioned in clause 4 sub-clause (c) hereof and of applying any part or parts $\frac{1}{2}$ of the capital moneys and or interest arising therefrom in the advancement and education of my said son."

Plaintiff as trustee brought an originating summons praying for. inter alia, declarations as to the construction and effect of the said clauses 4 and 5 of the will.

Held $(24-3-39)$ .—(1) That on the true construction of clause 4 (d) the third defendants took as joint tenants and not as tenants in common;

(2) That the trust of the residuary estate and income thereof in favour of the second defendant as declared by clause 4 of the will is subject to the trusts of one moiety of the net annual income of the residuary estate as declared in clause 4 $(d)$ in favour of the first and third defendants;

(3) That the effect of sub-clauses (f) and (g) of clause 4 is to constitute the second defendant as sole trustee of the residuary estate if and when he shall attain the age of twenty-five years with the consequent<br>obligation on the plaintiff to transfer the same to the second defendant as such trustee if and when the second defendant attains the age of twentyfive years:

(4) That the beneficial interest of the second defendant in the capital of the residuary estate under clause 4 $(f)$ and $(g)$ is a vested interest vesting from the date of the testator's death subject to being divested as provided for in clause 4 $(h)$ if the second defendant fails to attain the age of twenty-one years;

(5) That the beneficial interest of the second defendant under clause 5 in the proceeds of the life assurance policy is a vested interest vesting from the date of the testator's death to which the second defendant is entitled on his reaching the age of twenty-one years.

## Harrison for the Plaintiff and First Defendant.

Archer for the Third Defendants submitted that the daughters take as joint tenants under clause 4 $(d)$ . There is nowhere any evidence of an intention to divide the property and there is no ambiguity which could cause the Court to favour a tenancy in common.

He referred to 28 Hailsham, p. 789, article 1422 and 24 Hailsham, p. 207, article 393.

Brian Figgis for the Second Defendant on the point as to whether the second defendant's beneficial interests were vested or contingent referred to In Re Ussher. Foster v. Ussher (1922, 2 Ch. 321); Boraston's Case, 3 Co. Rep. 16; Hanson v. Graham, 6 Ves. 239; Phipps v. Ackers, 9 Cl. & F. 583, and Whitter v. Bremridge, L. R. 2 Eq. 736.

Archer.—As to clause 5 of the will, the gift there is contingent only. The second defendant on attaining twenty-one is given power to dispose of the property by will only, which is inconsistent with an intention to vest the capital before he attains twenty-five.

**Brian Figgis.**—The clear intention was to set apart the insurance money for the benefit of the second defendant. The conclusion of clause 5 is inconsistent with a contingent and only consistent with a vested interest.

JUDGMENT.—Arising out of the construction of certain terms in the will of one Ivo Murray Murton different questions have been submitted to the Court for determination.

The first question is whether the trust of one-half of the net annual income of the residuary estate after the death or marriage of the first defendant (Mrs. Elizabeth Murton) in favour of the third defendants (Gillian Murton and Judith Murton) (declared by clause 4 (d) of the said will) would after the death of either of the third defendants enure wholly for the benefit of the other of them or would in such event become a trust of one-quarter only of such net annual income for such other of them. Clause 4 $(d)$ of the will. reads: —

"Upon trust to pay annually to my wife Elizabeth Murton so long as she remains unmarried one half of the net annual income of my estate. In the event of the marriage or death of my said wife I direct my trustees to apply the said one-half net annual income for the benefit of my daughters Gillian and Judith".

Shortly the question I have to determine here is whether in the events stated the daughters would take as joint tenants or tenants in common. In 28 Halsbury's Laws of England, page 789, paragraph 1422, it is stated: $-$

"Where property is given to several persons concurrently the question whether these persons take as joint tenants or tenants in common depends on the context of the whole will; they prima facie take as joint tenants".

The context of the relevant portion of the will in this case clearly points to their taking as joint tenants. There is nothing to suggest a tenancy in common. I accordingly decide on this first point that the daughters would take as joint tenants.

The next question I am asked to answer is whether the trust of the residuary estate and the income thereof for the second defendant Murray Murton until attaining the age of twenty-five (declared by clause 4 $(f)$ of the said will) is or is not subject to the trusts of onehalf of the net annual income of the residuary estate in favour of the first defendant and third defendants (declared by clause 4 $(d)$ of the said will). The answer to this question turns upon the construction to be placed upon clause 4 (e) of the will which states: $-$

"Subject to clause 4, sub-clause $(d)$ hereof, and the provisions contained therein upon trust to apply the income derived from my estate or so much as my trustees may deem desirable for the maintenance and education and benefit of my said son-Murray Murton at such school or schools as my trustees may approve and thereafter at Cambridge University if my son should so wish and funds are available"

The answer to the question here raised is ves. The meaning of clause 4 (e) appears to me to be perfectly clear.

The next and third question is whether the combined effect of paragraphs $(f)$ and $(g)$ of clause 4 of the said will and/or of any other provision therein contained is or is not to constitute the second defendant as sole trustee of the residuary estate with the consequent obligation on the plaintiff (the executor and trustee of the will) to transfer the same to the second defendant as such trustee if ' and when the second defendant attains the age of twenty-five years.

Clauses 4 (f) and (g) of the will respectively read: $-$

"( $f$ ) My trustees shall stand possessed of my said property and the income thereof on trust for my said son Murray Murton until he attains the age of twenty-five with power to my trustees in their discretion to apply any part of the capital of the said property for the advancement of my said son during the subsistence of this trust as they may think fit".

"(g) I hereby direct that my said son on attaining the age of twenty-five years shall stand possessed of my property and the income thereof one-half of such income unto my said wife and daughters pursuant to the terms and conditions contained in clause 4, sub-clause $(d)$ hereof and shall hold the capital and residue of the income of my said property upon trust for himself and I hereby further declare that my said son shall have full and unfettered power without being responsible for loss or alterations in investments and shall be at liberty to invest the capital moneys in any investment as in his uncontrolled opinion he shall think fit and shall have power of retaining any investment in its then present form".

Here again I find the answer to be yes.

The next question I am asked is whether the beneficial interest of the second defendant in the capital of the residuary estate (under clause 4 (f) and (g) of the said will) vests in him at any time or age before his attaining the age of twenty-five years, and if so, at what time and age. The answer to this question in my opinion must be yes and in saying so I am fortified by the decision of Astbury J. in the case In Re Ussher, Foster v. Ussher (1922) 2 Ch., page 321. For all practical purposes the terms of the will under consideration in that case were similar to the terms in the will in the present case, and as the headnote states: -

"It was held following Fox v. Fox (1875) L. R.19 Eq. 286, 290 and In Re Williams (1907) 1 Ch.180, 183, which in a Court of first instance are binding authorities that the defendant Ussher took a vested interest at the testatrix's death and on attaining twenty-one was entitled to an immediate conveyance and transfer".

So I hold that the minor Murray Murton on reaching the age of twenty-one years is entitled to have conveyed to him the property which he has been bequeathed under the will to which I have already referred. In other words I hold that the minor Murray Murton's interest is a vested interest vesting from the date of the testator's death subject to being divested as provided for in sub-clause 4 $(h)$ of the will if the minor Murray Murton fails to attain the age of twenty-one years.

The next and final question I am asked to decide at this stage is whether the beneficial interest of the second defendant in the proceeds of the life insurance policy (under clause 5 of the said will) vests in him at any time or age before his attaining the age of twenty-five years and if so at what time and age. It seems to me that the true construction of the will read as a whole is that this also is a vested interest to which the second defendant is entitled on his reaching the age of twenty-one years and I say so on the authority to which I have already referred, the case of In Re Ussher (supra), and I am reinforced in this view by the concluding words of clause $5$ which confer upon the trustees during the minority of the second defendant the power "of applying any part or parts of the capital moneys and or interest arising therefrom in the advancement and education of my son".

Costs as between solicitors and client of the parties will be payable out of the estate. The originating summons will stand over generally with liberty to apply.