Hetherington v Hetherington [1926] WSLawRp 1; [1921-1929] WSLR 15 (11 October 1926)

[1921-1929] WSLR 15

HIGH COURT OF WESTERN SAMOA

HETHERINGTON AND OTHERS

v.

HETHERINGTON AND OTHERS

HIGH COURT. Apia.
1926. 11 October.
WOODWARD C.J.

Will construction - interpretation of words in residuary clause-intention of testator-gift to a class -beneficiaries to include grandchildren alive or en ventre sa mere at death of deceased.

The deceased by his last Will dated 1st May 1925, after making a number of devises and bequests proceeds-

"I give devise and bequeath all the rest residue and remainder of my real and personal estate not hereby otherwise disposed of to my said trustees upon trust to divide the same in equal shares among my grandchildren the children of my daughters Miranda, Sophia, and Priscilla and the children of my son Harry share and share alike my trustees in their absolute and uncontrolled discretion to choose their own time for settlement."

He died on 15th March 1926. At that date he had twelve grandchildren answering to the description given in the residuary clause and these with one child born to his daughter Sophia within a month after his death, are the plaintiffs.

The plaintiffs, 13 grandchildren of the testator, pray judgement-

(1) That the only grandchildren entitled to benefit under the clause are such of the children of Miranda, Sophia, Priscilla and Harry as were alive or en ventre sa mere at the death of deceased or alternatively pray judgment specifying the grandchildren so entitled.

(2) That the plaintiffs or other grandchildren so entitled take in equal shares irrespective of the families to which they respectively belong.

(3) Interpreting the words "my trustees in their absolute and uncontrolled discretion to choose their own time for settlement."

Held: 1. That the first alternative as stated in the first clause of the prayer correctly designates the grand children entitled; such grandchildren, alive or en ventre sa mere, to be ascertained as at the death of the testator.

2. As to the second clause of the prayer, that a distribution per capita, rather than per stirpes, is intended by the testator; the names of the parents being used only to describe the grandchildren to be benefited.

3. That it is a cardinal rule of interpretation that the intention of the testator as declared by him and apparent in the terms of the Will must be given effect to; that the meaning of the words "my trustees in their absolute and uncontrolled discretion to choose their own time for settlement" refer to the enjoyment and not to the vesting of the residuary gift.

Klinkmuller, for plaintiffs.
Baxter, for defendants.

Cur. adv. vult.

WOODWARD C.J.: The plaintiffs are 13 grandchildren of the late Mr H.J. Moors being the children of Miranda Hetherington and Sophia Hellesoe his daughters and of Harry William Moors his son.

The defendants are the executors and trustees of the deceased's will and one of his daughters Priscilla Muench who is married but childless.

The deceased by his last will dated 1^st May 1925, after making a number of devises and bequests proceeds-

"I give devise and bequeath all the rest residue and remainder
"of my real and personal estate not hereby otherwise disposed of
"to my said trustees upon trust to divide the same in equal shares
"among my grandchildren the children of my daughters Miranda,
"Sophia, and Priscilla and the children of my son Harry share and
"share alike my trustees in their absolute and uncontrolled
"discretion to choose their own time for settlement."

He died on 15th March 1926. At that date he had twelve grandchildren answering to the description given in the residuary clause and these with one child born to his daughter Sophia within a month after his death, are the plaintiffs.

The plaintiffs pray judgment-

(1) That the only grandchildren entitled to benefit under the residuary clause are such of the children of Miranda, Sophia, Priscilla and Harry as were alive or were en ventre sa mere at the death of deceased or alternatively pray judgment specifying the grandchildren so entitled.

(2) That the plaintiffs or other grandchildren so entitled take in equal shares irrespective of the families to which they respectively belong.

(3) Interpreting the words "my trustees in their absolute and uncontrolled discretion to choose their own time for settlement".

As to the first clause of the prayer, I am satisfied that the first alternative there set out correctly designates the grandchildren entitled. The gift in the residuary clause is to certain grandchildren as a class or group and the question which arises is the point of time at which that class is to be ascertained. Of the rules for ascertaining that point of time, I apply the first, viz. - if no period of distribution is named the class is ascertained at the death of the testator. It appears to me that in the present case there is no period of distribution named. Counsel for the trustees has, in fairness to possible grandchildren yet to be born to the parents named in the residuary clause, suggested that, by using the words "my trustees in their absolute and uncontrolled discretion to choose their own time for settlement", the testator has, in view of the possibility of future grandchildren left it to the trustees to fix the date of distribution. I do not think that that is the meaning of those words. If the testator had in view future grandchildren, I think he would have made definite provision for them and not left it in the power of his trustees, however much confidence he had in them, to include some and exclude others equally entitled to his bounty. Other consequences contrary to the apparent intention of the testator can easily be imagined from the interpretation suggested. Guided by the cardinal rule of interpretation of wills, viz. - that the intention of the testator as declared by him and apparent in the terms of his will must be given effect to, I prefer to read the words in question as referring to the date of the payment or delivery of the shares in the residue rather than as referring to the date of vesting of these shares. The will shows elsewhere that the testator had in mind the possible inconvenience from a financial point of view of an immediate settlement with his beneficiaries, and also the advisability of postponing the enjoyment of gifts to certain of these grandchildren from motives of prudence. The same consideration I think caused him to use the words in question with the intention not of leaving the class of donees to be fixed by his executors, but of conveniencing his executors and enabling them to protect the objects of his bounty during their youth. As to the child born after the testator's death the rule is that in a gift to persons of a named relationship to the born or living at a particular time (whether this qualification is expressly made by the words of the will or, as here, impliedly made under the rules for the ascertainment of the class) the description includes a person of that relationship then en ventre sa mere if afterwards born alive (Halsbury vol. 28 p. 740). This child is therefore entitled under the residuary clause with the other grandchildren.

As to the second clause in the prayer of the claim the only circumstance which might seem to indicate a distribution per stirpes rather than per capita among the grandchildren is the use of the names of their respective parents. It has been stated by Counsel that there are other grandchildren of another daughter of the testator who had been already provided for by him in his lifetime. This explains the use of the names of the parents and satisfies us that they are used only by way of description of the grandchildren intended to be benefited and that a distribution per capita is intended.

As to the third clause the meaning of the words "my trustees in their absolute and uncontrolled discretion to choose their own time for settlement" has been indicated above. It refers to the enjoyment and not to the vesting of the gift. It empowers the trustees to postpone that enjoyment at their discretion. I am not asked to determine what the limits of that discretion in point of time may be.

Judgment: (1) On the first clause of the prayer in accordance with the first alternative there set out.

(2) On the second clause as prayed.

(3) On the third clause that the words have reference to the enjoyment and not to the vesting of the residuary gift.

(4) That the costs of both parties to the action be paid out of the estate as follows:-

Plaintiffs' counsel £10.10.0.

Defendants' counsel £7.7.0.