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Decisions of the Superior Courts of New South Wales, 1788-1899

Doe dem Wentworth, Ainslie v Collins (1831) NSW Sel Cas (Dowling) 974; [1831] NSWSupC 50

succession, interpretation of will - dower - Wentworth, D'Arcy, will of

Ainslie v. Collins

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 23 July 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 98] Testator devised real and personal estate to Trustees in Trust to pay weekly 3£ to M A. & if she left the Colony to remit the same for her life to wherever she should choose to reside free of the control of any husband or other.  As also the rents and profits of the Cottage and land in G. which she now inhabits and the piece of land adjoining [p. 99] the same which it is my will shall belong to and be enjoyed by her during the term of her natural life "remainder to his son D. for life & remainder to the issue of the latter:  Held that the trustees took the legal Estate in the land adjoining the Cottage for the life of MA. and that she could not grant a lease of the same to a stranger.

 

Source: Dowling, Proceedings of the Supreme Court of New South Wales, vol. 61, Archives Office of New South Wales, 2/3244

[p.111]

Friday 23d July, 1831

This was an ejectment for lands in Sydney.  At the trial before Stephen J & two assessors on the 5th April last, the following special verdict was found: -

The assessors find, that D'Arcey Wentworth Esq. died on the 7th July 1827 having duly made his will, as by law is required to pass real estates of inheritance, bearing date the 5th July 1827, whereby he devised [p. 112] inter alia as follows: - "Whereas I am possessed of extensive real estates which I am desirous of bequeathing to my children in such manner as that the same shall be enjoyed by them respectfully only for and during the period of their natural lives, in order therefore to limit the same strictly in entail to them my said children and to the several and respective heirs of their bodies respectfully, I do give and devise and bequeath the whole of my property real personal and mixed[.]  Wheresoever the same may be situate except as herein after is excepted unto my friend John Thomas Campbell, William Lawson, William Redfern Esqres. and unto my so William Charles Wentworth Esq[.]  Their heirs, executors, administrators & assigns according to the nature of the respective quality thereof, to have & to hold my said real, personal, & mixed estate to them my said trustees, the survivors of them, & the heirs, executors, administrators & assigns of such survivors.  In trust nevertheless to & for the uses intents & purposes following & to no other use intent or purpose whatsoever that is to say [p. 113] In trust, from & out of my personal property to pay unto the proper hands of my housekeeper Maria Ainslie the sum of 200£ in money currant in the territory at the time of my decease.  And in further trust to pay to the said Maria Ainslie free & clear from any husband or other person whatsoever, the weekly sum of 3£ in like current money for and during the term of her natural life, the same being in full compensation for all claims of any sort which she may have or suppose she has upon my estate.  And I do direct my said trustees in the event of the said Maria Ainslie wishing to quit the Colony to remit the said annuity of 3£ per week to her as circumstances will admit to wheresoever the said Maria Ainslie shall choose to reside.  As also the rents & profits of the cottage and land in George Street Sydney which she now inhabits the piece of land adjoining the same, which it is my will shall belong to & be enjoyed by her during the term of her natural life.  And upon further trust to allow my [p. 114] said son D'arcey Wentworth to possess and enjoy after the decease of the said Maria Ainslie the said cottage land & premises herein before devised to the use of the said Maria Ainslie for the natural life of the said D'Arcey Wentworth, and after his decease the same to go & descend to his issue in like manner as the Toongabbee estate herein before devised & bequeathed to him." -  That the said piece of land mentioned in the said will adjoining the said cottage premises was occupied by the said Maria Ainslie for  a short period after the decease of the said testator, till by an indenture of demise bearing date the 22nd September 1827 the same was leased by her to the deft William Collins for the term of eleven years commencing on the day of the date of the said lease at and for the sum of 25£ current money payable quarterly, who has occupied the same ever since.  That the said Maria Ainslie has continued unmarried & has ever since lived in this colony.  That the said piece of land is a [p. 115] real estate of inheritance.  The assessors find for the lessors of the plf if the Court should be of opinion that the legal estate was in them at the date of the demise laid in the declaration, but if the Court should be of opinion that the said Maria Ainslie is entitled to the legal estate then the assessors find for the deft.

The case was argued by Wentworth for the plf and S. Stephen for the Deft.

For the plf it was contended that the trustees took the legal estate in the premises in question as appeared from the whole content of the will by which it was manifest that the trustees were to receive & pay over the rents & profits of the land to M. Ainslie.  Suppose she left the colony & thought proper to reside elsewhere, then this part of the will would be a nullity.  The devise over however is decisive because it shews that the trustees had still something to do, which is the true test in these cases in order to determine whether the trust is executed in the trustees or the devisee.

For the deft contrà.  It is clear that the exception in favour of M. Ainslie shews that the testator did not intend to devise all his lands to the trustees.  On the contrary the words of the devise to her shews that he meant to carve out of his property beyond the mere [p. 116] weekly allowance of 3£ out of his property, which, it is to be observed is to be remitted to her by the trustees if she should leave the colony; but this description does not extend to the rents & profits of the land, which negatives the idea that the trustees have any thing to do - the admitted test in cases where trustees claim the legal estate.  Now what other effect, then that M. Ainslie is to take the legal estate for life in this property can be given to these words: "As also the rents & profits of the cottage & land in George Street Sydney which she now inhabits and the piece of land adjoining the same, which it is my will shall belong to & be enjoyed by her during the term of her natural life."  It is clear from this, that she was to enjoy the rents & profits without the controul of the trustees who have nothing to do in the execution of this part of the trust.

The Court took time to consider of the case & now on this day judgement was given.

Forbes C.J.  Certainly the rents & profits of this house & land are by this will given in terms to M. Ainslie for her natural life.  This part of the will may receive two different constructions without doing any violence to any rule of law in such cases.  On the one hand if she chooses to occupy the house & land no one could disturb her, & [p. 117] she could maintain ejectment for an unlawful ouster.  On the other if she ceased to occupy and a stranger were let into possession the trustees might maintain ejectment.  Looking however to the whole context of the will, I think the intention of the testator may be more safely collected to be, to give the legal estate in the house & lands to the trustees of the rents & profits thereof to her through their hands.  In this point of view they would have a trust to execute - something to do, & consequently the legal estate must pass to them for this purpose.  I am of opinion therefore that judgement should be give for the plaintiffs.

Stephen J.  I am clearly of opinion that the trustees took the legal estate.

Dowling J.  As the intention of a testator is the polar star in constructing his will, if the intention can be clearly collected from the whole content the Court is bound to give effect to it however absurd the language or inartificial the mode of expression may be.  Courts of Justice ever strain repugnant words to give effect to intention where the intent can be plainly collected.  Now what was the testator's intention in this case?  He obviously intended to carve out of his property a provision for the [p. 118] remainder of the life of Maria Ainslie.  This he does out of two different finds, first his personalty & secondly part of his realty.  Out of his personalty she is to have a weekly allowance of 3£ which is to be paid to her whilst she remains in the Colony, & if she thinks proper to reside elsewhere, the trustees are to remit the same to wherever she removes, & this to be free & clear from any husband or other person whatsoever.  Now this part of the will & that which follows appear to me clearly to form part of the same sentence, & is controlled by the direction as to the security of the money to whatever place she may remove, for he goes on, not with "Item" or "also", or any word importing a heir and distinct devise, but "as also, the rents & profits of the cottage & land in George Street Sydney, which she now inhabits & the piece of land adjoining the same whichit is my will shall belong to & be enjoyed (what? - the rents & profits) by her during the term of her natural life."  Taking the whole context of this part of the will it is clear that he did not mean to give her the house & land themselves, but the rents & profits thereof, which are to be remitted to her by the trustees if she should think it proper to leave the Colony in like manner with the annuity.  If the house & land were given absolutely, why use [p. 119] the terms 'rents & profits'.  The testator clearly meant to protect her from the control of any husband or any other person, probably apprehensive that she might be imposed upon if the property was committed to her own care.  But the limitation over of the same house & land for life absolutely to D'Arcey Wentworth the testator's son, clearly shews what the testator meant by this part of the will giving M Ainslie the rents & profits of thereof during her life.  If we were to hold therefore that she took the legal estate we should be nullifying the limitation over.  Suppose she were to quit the Colony how could the trustees performed [sic] the trust of paying over or remitting unless they were to receive the rents & profits.  During her absence nobody else could have authority to receive them.  They are the conduit pipes through which the rents & profits must pass, before they reach her, & therefore as they have a necessary duty to perform in this, in order to give effect to the testator's intention, it appears to me that the trust is executed in them & not in Maria Ainslie.  For these reasons I am of opinion that we must give judgement for the lessor of the plf.

Judgement for the plf.

Published by the Division of Law, Macquarie University