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

Campbell v. Riley [1834] NSWSupC 63

succession - trusts, change in nature of property - trusts, sale of realty

Supreme Court of New South Wales

Dowling and Burton JJ, 19 April 1834

Source: Australian, 21 April 1834[1 ]

Campbell and another, v. Riley and others - Dr. Wardell for complainants and Mr. Wentworth for George Riley and five of the defendants infants applied in this case for a decree of the court, authorising a sale of the real estates of the late late [sic] Edward Riley, left by his will to devisees in trust for his children in equal shares, and for a division of the proceeds - they urged that no division of the land which could be equitable, could take place - that in the mean time till the infants gained full age some years would elapse, and the estates would be delapidated [sic], and the infants suffer great privations; that it would be for the benefit of all parties that a sale should be made, as the rental was by no means adequate to what would be the interest of the purchase money - The value of the property was perhaps forty thousand pounds, which was now totally unproductive - the only opponent to the application was the defendant Edward Riley, who claimed the whole real Estate as heir at law, but the question had been already decided on solemn argument before the court, that the will was sufficient to pass real property.  It was urged, that notwithstanding the reluctance which courts of equity had felt to change the nature of property belonging to a lunatic or to infants, yet still they would do it, on a proper case being made out.  It was further contended that it was very questionable whether the will did not authorise the devisees to sell.

Mr. Carter on behalf of E. Riley, defendant, and heir at law, contended that the Court could not direct the sale.  In this case there were cross limitations to the several children, and in case of a certain contingency liable to happen, an executory devise over to other parties.  In no case of strict settlement had the Court ever gone the length of changing the nature of the property, especially of reality to personality - and the only case in which it had ever been done at all, was in directing the sale of some given timber.

 

Dowling and Burton JJ, 19 April 1834

Source: Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3278, vol. 95

 

[p. 137] This was a bill filed on 10th Jany 1831 by the executors and Trustees of the will of the late Edward Riley Esq decd praying a decree of this Court to enable them to execute the trusts of the will of the testators.  On the 18th Nov. 1832[ 2] the Court made a decree agreeably to the prayer of the file, and referred it to the master, to draw upon decree conformably there to, subject to any right which Edward Riley, eldest son & heir at law of the testator, (then out of the jurisdiction of this court) might thereafter set up to dispute the validity of his fathers will. - No decree was in fact drawn up pursuant to the former directions of the Court, in order to give Edward Riley time to appear, and put in his answer to the bill if he should be so advised.  Since Nov. 1832 Edward Riley has returned to this Colony and he has craved, & obtained leave to put in his answer to the Bill.  Accordingly on the 22d Feb. 1834 he filed his [p. 138] answer, and on the 19th April 1834 the Bill and the answers of all the Deft came on for hearing before Dowling J. & Burton J. sitting in Equity in order to have the formed decree confirmed.

As all the defts excepting Edward Riley, are consenting to the prayers of the Bill, the stress of the argument arose upon his interests, as they were likely to be affected by directing a decree in pursuance of the prayer of the bill.

Edward Riley in his answer admits in substance all the matters charged in the bill by the Trustees as grounds for decreeing a sale of the estates for the purpose of the will but he goes on to deny ``that the said complainants have any right or interest either as devisees in trust under the will of the said testator, or under any other right or authority however to sell & dispose of the said real estates in the said fill mentioned, or that the other defts in the said Bill mentioned have any claim upon or are entitled to any part or share of the said estates.  And this deft further saith that [p. 139] he is the heir at law of the said Edward Riley deceased & as such entitled to the whole of such real estate for his own sole use & benefit," concluding with a prayer for reversing the former decree above mentioned, & that he might be decreed entitled to the whole of the real estates of the testator, & aloud his share of the personalty under the will be.

Wardell for the Plf.  The matter alleged by Edward Riley, in his answer has been already determined by this court after two solemn arguments on a special case in which it was held, that the lauded estates in question are vested by law in the Plf, as Trustees by operation of the testator's will[3 ] to the use of all the testators children by two venters, share & share alike.  There is therefore an end of that question, & it is not now open to reargument.  The only point is, not whether the Trustees have a right to convert the real estates into personalty, but whether they have made out a case to this court, to authorise a decree for that purpose.  All the other children of the testator are existing, and the only deposition arising to it is that Edward Riley takes an erroneous view of his own rights, for he admits as true, the proceeds of necessity urged by the Trustees, provided the have the legal estate in the real property. - There is little doubt that the Trustees, of their own authority, might sell the estates & convert them into personalty in execution of the Trusts to the uses of the will, but for more abundant caution they have thought it prudent to have the sanction of this court for their purpose.  Now it is clear, that upon a case of necessity being made out, for the benefit of the infants, this court will sanction such a proceeding[ 4].  Here there is a manifest necessity for the conversion of the real estates for the benefit of the infants, who are left destitute, [p. 141] although the property vested in the hands of the Trustees is abundant for their maintenance.  The only cases in which the Court has withheld leave, are where there has been no necessity made out, but otherwise whether it be the case of an infant or a lunatic the Court has sanctioned the conduct of the guardians or committees, in disposing of the property for the benefit of the infant or lunatic, where a necessity arises for so doing.  Brook v. Wright 1 Ves. Sen. 460 Exparte Bromfield 1 Ves. Jr. 462-3.  This principle has been acted upon in many cases.  But it is also a rule in Equity, that the Court will sanction a change in the nature of the property bequeathed to an infant, though the Executors have no authority to do so by the will.  1 Vernon. 437.  No doubt it is a general rule that guardians & trustees of an infant shall not alter [p. 142] the nature of the property, so as to change the right of succession but there are cases where the court will regard the interests of the living, to those of remote successors, provided a case of manifest necessity for the benefit of infants is made out.  This is laid down in Mr Fontblaques Equity.  Is it not a matter of necessity that these children should be fed, clothed and educated during their infancy!  Are they to starve, & derive no benefit from the provision made for them by their father?  The will itself, in effect authorizes the Trustees to sell, & they might perhaps do so without coming to this court.  Taking the will to be ambiguous in using only the words ``to pay & assign," the Court will, in order to effectuate the intention of the testator, supply the words ``to sell".  How are [p. 143] they to pay & pay & assign" unless the paid the proceeds to sell?  Supposing the words were ``to lay out invest & keep:-- they must sell ``today out".  No reason has been made out in Edmond Riley's answer to disturb the former decree of this Court & therefore it must be confirmed.

Wentworth for all the defts except Edward Riley, argued to the like affect in support of the bill.  The case from 1 Ves. Sen. is different from this.  In that case there was no necessity made out, nor was there any authority given to the Trustees for alterating the nature of the property.  Here there is a paramount necessity made out, & the Trustees have an authority to sell by operation of the words ``To pay & assign".  No prejudice can arise to any body by decreasing the Prayer of the bill.  All the devisees under the will are intended in the realization of the property into a productive form.  They have all [p. 144] and every of them benefit of survivorship.  If any of them die, before the youngest child shall attain majority, his or her share goes to the survivor.  So also the trustees ever are [?] interested.  The persons most acutely interested will be benefited by this proceeding.  What is for the benefit of the infants is also beneficial to the other devisees.

Carter for Edward Riley.  Assuming that the will of the testator is sufficient to pass the legal estate in the lands in question to the trustees, in trust to the uses solvent in the will, this court has no process to direct the sale of the property in the way prayed by the bill.  In no case of a real estate under strict settlement, has the Court [p. 145] directed it to be sold for any purpose.-  Here the children take as tenants in common in fee, with crop limitations infer, and executing devises over.  It is a strict settlement.  The words are ``to all & every" of the children, as should be living at the time of the testator's decease.  Until the youngest child attains it the executing devise remains in full force.  Though there are the words, ``with benefit  of survivorship," yet the affect is the same as if it was a regular cross limitation.  It is impossible by any act of the court to get rid of the executory limitation over, to the testators father & mother, & his sisters.  Until the youngest child attains it the devises over remain in full force.  None of the children, whether of majority or infants, have yet had a vested interest in the property, & it may be that al the conditions will fail, so as [p. 146] to bring the devises over, into affect.  Here the executory devises over are not too remote. - Barnard & Wood Fearn. 468, & consequently on the authority of that case, the executory devise over in the present case is in full force.  It may be for the benefit of all the parties to sell the estate and have it invested, but still the court has no powers, to order the sale, under a strict settlement, with an executory devise over.- 

Then as to the conversion of the realty into personalty it will be found that the cases cited, relate to personalty & not to real property, in which the court has directed a sale & investment in another mode than that printed out by the Settlers.

[p. 147] Wardell in reply for the Plfs.  It is assumed on the other side that this property has not vested, which is a misapprehension.  The testator by his will has provided for several contingencies.  One of these is the event of all his children dying before 21 or before marriage, & then over.  But two of his children have attained 21, so that that event never can happen, & when their attaining majority the estates become absolutely vested.  The fact of one of the children attaining 21 cuts off the executory devises over.  All the children are to take share & share alike with benefit of survivorship.-  Suppose Edward Riley married and had a son, but died before the youngest child came of age:  What is to become of his share?  Would it not go to his son?  Would not the trust be performed, & are the [p. 148] trustees to come back & [?] their trust.  Here the estate is absolutely vested, of the remote executory devises over all out of the question.

Wentworth in reply on the part of the infants & George Riley.  The force of the argument on the other side, forms upon the question whether or not the Trustees have the power to sell.  If they have by the will a power of selling, the argument will not apply, & is of no force.  The follow of the argument is shewn by the very interpretation which has been put upon the will on the other side.  The will has been read to give the children a tenancy in common in fee with crops remainders.  Why if the absolute fee simple is in them & their heirs for ever; or if they are tenants in fee [p. 149] with crop limitation in fee, they have the absolute estate in fee & simple in them, & then there is an end of the question.  What is the meaning of an executing devise over?  If there were anything in the code to restrain the estates of the children, either to estates tail or for life, so that they had not the absolute estate.  The argument about executing devises over might have some weight, but if the whole estate is given them (as is admitted) their heirs & assigns as tenants in common there is an end of the question.  It is a delusion to contend that their devise over can restrain the Court from directing a sale of the lands.  It is clear that the children take an estate in fee.  There is no limitation to them in fact, for life, or any [p. 150] carving out of a portion of the interest.  The testator gives the estates to the Trustees upon trust ``to pay and assign the same unto Ann Riley his then wife, Edward Riley, & Geo. Riley his sons by a former marriage, & all & every of such children of his by his said wife Ann Riley as that be living at his decease, or born within the time after his decease, share & share alike in equal proportions to form their, his & her absolute use with benefit of survivorship."  It is clear from the will therefore that the children take the absolute fee simple.  It has now absolutely, excited by the death of Ann Riley the widow, in the two sons, who have attained majority, & in all the other children, with benefit of survivorship.  The devises over can never take effect.

C. A. V.[5 ]

[p. 151] This case which is one of deep importance to the parties, has been fully considered by all the Judges, and although His Honor the Chief Justice was not present at the second argument, yet my Brother Burton & myself have conferred with his Honor upon it, & having laid before him our sides of the argument he concurs in the decision.  I am about to pronounce, which is therefore to be taken as the unanimous decision of the whole Court.

Dowling J. - We are of opinion that the decree pronounced by this Court on the 10th November 1832 must be confirmed.  On the argument of this case on the 19th April last none of the grounds on which that decree was made, were brought under discussion, or questioned on general principles.  It seemed to be admitted (at least not disputed) on all hands, that trustees having power to sell an estate devised for the benefit of testators children on attaining majority or marrying, may under the sanction of the Court sell the estate during the minority of the children, if the necessity of so doing for the support & maintenance of the children be satisfactorily made out.  The only alteration in the circumstances of the present case, from the position in which it stood before the Court in 1832, is, that now Edward Riley the heir at law, has put in his answer and is before the Court.

[p. 152] On the former occasion the Court was of opinion on the authority of Inwood v. Twyne[ 6] that we had as a court of Equity, power to make a decree for carrying the prayer of their bill into effect, all proper parties being before the Court.  The only difficulty we then had, was the absence out of the jurisdiction of the Court of Edward Riley the heir at law.  That difficulty has now been cured by his appearance & answer to the bill.  On his part - no dispute was made as to the necessity, for the benefit of the infants & the other defts (himself included) of selling the estate and investing the proceeds in real securities for their maintenance and education provided the estates were legally vested in the Trustees for the benefit of the younger children, but in his answer, it was insisted, that the estates in question were solely vested in [p. 153] him as eldest son & heir at law, & that neither the Trustees, nor his younger brothers & sisters had any right or interest in the property under the testators will.  This claim so set up has already been determined by the Court on the common law side, before all the then Judges, after two solemn arguments.  On the 30th September 1829[7 ] in ejectment for part of the law, brought by Edward Riley, the Court determined that the real estates in question vested in the Trustees to the uses declared in the Testators will; and that the heir at law took nothing but his share as one of the devisees.  The validity of the will was not brought under consideration in the present mode of processing, nor indeed, was any argument offered upon it on the hearing of the bill an answer.  If such an argument had been urged, we think the court could not have stopped it, & would have been bound to entertain it, as necessarily incident to the consideration of the case; but none was offered.  The only argument preposed upon the court on behalf of Edward Riley was, that assuming the will to attack upon the real estates of which the testator died seised, the terms of the settlement, put it out of the power of this Court as a Court of [p. 154] Equity to decree a sale of the estate for the purpose of converting it into personalty.  The will was defined to be a strict settlement on the children , with crop remainders, & with executory devises over to person still in being; and it was contended on the authority of Barnard v Wood Fearn.468. that however remote the devises over might be, the Court could not decree a sale of property so settled; and it was said that such an instance was never heard of.  The force of the argument so pressed upon us, would, of course, be irresistible in any case to which it was properly applicable; but we apprehend that it has been erroneously assumed, that this is a case falling within the operation of the principle contended for.  If there were any thing in the will shewing an intention on the part of the testator to carve one out only a limited interest in the first letters, either to them in fact, for life, or for any other interest, short of an [p. 155] absolute fee, then we admit, that the devise over would be an executory devise and the settlement so restricted, would prevent a sale, whereby the contingent remainder might be affected.  But the will must speak for it self, and it appears to us, that the terms of it are so plain, that the foundation of the argument so strongly pressed upon us completely fails.[8 ]

By his will the testator bequeathes to his trustees, ``all the estate and property of whatever nature & wheresoever situate which may belong to me at the time of my decease," upon trust, ``to pay and assign the same into Ann Riley my wife, Edward Riley & George Riley, my sons by a former marriage, & all & every such children of me the said Edward Riley & my said wife Ann Riley, as shall be living at my decease or born within due time after my decease whare & share alike in equal proportions to & for their, his & her absolute use with benefit of survivorship:" - ``And in the event of my surviving my said wife Ann Riley & my said sons Edward Riley & George Riley, and [p. 156] there shall not be any child or children of me the sd Edward Riley & of my said wife A. Riley, living at the time of my decease or born within due time after my decease, or if there shall be such[9 ] a child or children living at the time of my decease or born afterwards as aforesaid, but if they, he or she shall die before they he or she, respectively attain, their, his or her age of 21 years or become married" - then over etc. At the date of this will Edward Riley &George Riley the defts were not of age (which is of no importance), but both have now attained majority. The condition of dying before 21 or marriage does at all events not refer to the sons Edward & George mentioned by name.  They take absolutely whether of wife or not, having survived the testator.

It having been decided by a Court of law that this will attaches upon the real property acquired subsequently to the making of the will & before testator's death, the question is what estate did the wife & children take in the real property in question at the time of the death of the testator - was it an estate tail - or for life - or for any more limited period?  Clearly not upon the death of the testator, it became absolutely vested in the wife and children share & share alike as tenants in common in fee, with benefit of survivorship, to take effect and become divisible when the youngest [p. 157] child became of age or married, if he or she should so long live.  The wife being now dead, she is out of the question.  The children have survived her, & her heirs have lost all benefit of survivorship.  Upon her death her share became vested in all the children but the ultimate measure of their respective share is to depend upon what number of survivors there may be, when the younger living child shall be 21 or become married.  The two sons title is as all events indefeasible.  The infants shares still remain vested in the trustees in trust for them, until they shall respectively attain 21 or become married with benefit of survivorship to each now as to the devise over, it is clear that the contingency upon which it is to take affect can never happen.  The devise to the wife & the children, by the two venters, is to take effect upon the death of the testator, if he does not survive them.  The wife and all their [p. 158] children were living at his decease, and one of them at least, Edward Riley had then attained 21 though that is really of no importance for the contingency of dying before 21 or marriage does not apply to him or his brother George.  The contingencies therefore upon which the estate was to go over has not happened.  - The estate is absolutely vested - & can never be devested, so as to make the wife operate on the contingent remainders.  As therefore the estates given to the children are vested in them respectively as tenant, in fee, with benefit of survivorship it only remains to reconsider, whether this is a case in which the Court has power to decree a sale of the estates for the benefit of all the parties now interested under the will.

[p. 159] This question resolves itself into two branches.  First.  Whether the trustees can sell during the minority of the infants; & secondly, whether supposing they can, it is in their power to convert realty into personalty.  These questions mainly depend upon the terms of the will & the powers given to the trustees, coupled with authorities applicable to the case.

By the first branch of the will, without adverting to what follows.  The trustees, upon the death of the testator, are to ``pay & assign" the property unto the wife, & the children of the two venters, share & share alike in equal proportions, to & for their, his, & her absolute use.  Now resting here, the power of paying & assigning, by all reasonable, nay necessary intendment, imports a power of selling the property; for otherwise how are the trustees to pay over & assign to each devisee his & her share of the testators bounty?  The testator must have had in his contemplation the power of selling his property whatever it might consist of, unless indeed, he left no [p. 160] convertible property, & simply bequeathed cash, which is not protruded.  Then if the Trustees had the power of selling, which we think cannot be reasonably disputed, the question is whether they can sell during the minority of the children for the benefit of the latter.  This depends upon the nature of the property and the circumstances in which the infants are placed.  The bill alleges that the property is of very considerable value, but from the nature of it, & the manner in which it is tied up by the testator's will, it is at present wholly unproductive, really of no benefit to the children & that the children by reason thereof are subjected to great privations & hardships.   This is not denied by the answer of Edward Riley.

It is contended on the part of the Defts that the cases relied upon by the Plfs counsel where a conversion of the property was sanctioned by the Court, were cases where the conversion was of personalty into realty.  No [p. 161] doubt in the case of Inwood v Twyne[ 10] the change was from personalty into realty.  That is to say the trustees had purchased with the personalty of the infant, his mothers jointure arising out of law, she having become embarrassed; & the Court held that as that measure was for the benefit of the infant son, their conduct was justifiable.  But in the present case, the testator by his will, in its very terms, contemplated that at some time or other the trustees must sell his estates for the purpose of division amongst the persons interested under his will.  They are to pay & assign their shares.  The property of which the testator died seised, is from its very nature incapable of a division in remaining the children share & share alike.  It consists of a Capital Mansion - extensive farms & houses & buildings.  Such property is incapable of an equal partition in specie; & therefore in order to effectuate the [p. 162] beneficial intention of the testator it is necessary that at some time or other, it shall be sold, & the proceeds divided share & share alike among the children.  The only question is whether this can be done during the minority of the infants.  That it is necessary to be done for the benefit of the adults as well as the infants seems, on all hands, to be conceded.  Then had the Court power to direct such a sale, or to sanction the conduct of the Trustees in so doing?  In determining this question we must be governed by the decision of the High Court of Chancery in England.  The strongest case cited against he prayer of the bill is Brook v Warth[11 ] but it appears to us that that case does not touch the present.  That was the case of a Copyhold house entailed on the infant in succession. The house was burnt down by [p. 163] accident.  Towards rebuilding the house, a sum of 96£ was collected by briefs, and laid out by the Trustees towards rebuilding the house.  That case  is distinguishable from this in two particulars, - first, that was an estate tail - & secondly there was no necessity for the change of property.  But the Lord chancellor there said ``the infant was under guardianship & his estate ought to be taken care of, & applied according to the nature of it; & the Court will always take care it shall be so, & will not suffer his real property to be changed into personalty during his infancy, or his personalty into realty, in order that the persons who are to come into succession, may find the property in the same state without being altered by those who have not power to alter it."  Before I advert more particularly to the cases tending to shew that the court has the power to decree a sale, I shall notice what [p. 164] is said by an eminent Equity Lawyer upon the subject.  Mr. Fontblanque in his Treatise of Equity Vol. 2. 4th Ed. 167. Says - ``In considering the power of a Trustee to change the nature of a Trust estate, it may be material to distinguish those cases in which the Cestui que trust is sui juris, from those in which he is not sui juris.  In those cases in which the cestui que trust is sui juris, I take it to be clear that the trustee cannot change the nature of the estate, as by converting money into law, & land into money; at least so as to bind & exclude the cestui que trust from remedy against the trustee personally.  But in those cases in which the cestui que trust is not sui juris, it is very frequently necessary to the interests of such a cestui que trust, that the Trustee should be armed with such a power: and the true criterion in such cases is, whether the interest of the [p. 165] cestui que trust required the conversion.  In the 1st Vol. of the same work p. 88. The author reviews the cases in which the power has been so exercised with the sanction of the Court.  He particularly dwells upon Inwood v. Twyne[12 ] Lord Winchelsen v. Norcliffe[13 ] Rook v. Worth[14 ] & Exparte Bloomfield[15 ]

I have already adverted in general terms to the nature of the question in Inwoode Irvine.  In giving judgment the Lord Chancellor Northington said -

``The question is, whether the jointure estates shall go to the real or personal representatives.  It was said in argument, that the nature of the infants estate cannot be changed.  It is a matter of convenience, & of there was any such rule laid down by the Court I would acquiesce in it; but in my opinion it is otherwise.  The court has often changed it for the convenience of the infant.  Guardians and Trustees may change the nature of infants estate under [p. 166] particular circumstances, and the court would support their conduct, if the Court would do it under the same circumstances.  They cannot do it wantonly, but where it is manifestly for the convenience of the infant."  The Court keeps a strict hand over them to prevent partiality, but it is too hard to say that the Court would not permit trustees or guardians to do it in any case, where it is manifestly for the advantage or convenience of the infant.  The Court has done it in many cases, in making compositions, and often contrary to the directions of the donor or testator; as where money is directed to be laid not in free hold land, the Court has for convenience ordered part to be laid out in leasehold.  The Court has no more right to change the nature of the infants' estate than Trustees, or Guardians have. [p. 167]  The case of Lord Winchelsea v. Norcliffe[ 16] is in point to shew the sense of the Court of the power.  It is there said, -- ``the Court might do it by decree".  Here it is sought to be done by an order, but that makes no difference.  It is there said the Trustees cannot do it at their will & pleasure.  I subscribe to that opinion, that they cannot do it wantonly, but the Court will support them where it is manifestly for the benefit of the infant."

The doctrine of this case, as laid down by the Ld. Ch. Northington, as well as that of Ld Winchelsea v. Norcliffe, is recognized and acted upon in Exparte Bromfield[17 ] where the committee of a lunatic cut down & sold growing timber, part of the realty and attending the inheritance, and that case was decided upon the like principle which would be applicable to the necessities of an infant.  In that case it was said ``The principle of all the cases is, that where the property of [p. 168] an infant or lunatic, is concerned the Court will not permit a wanton change of the circumstances of the property to change the rights of his representatives after his death.  But for that, it must be a wanton change, or what is considered an equivalent to that, as if there is not a sufficient necessity.  In giving judgment the Lord Chancellor admitted the general rule, but said it might be done on pressing occasions & for the lunatics benefit, & he approved of the doctrine of Ld. Winchelsea v. Norcliffe in l.R Kennon & he quoted, & acted upon the judgment of Lord Ch. Northington in the latter case. - So much for authorities.

After a careful consideration of the present case, it appears to us, under the circumstances appearing on the Bill & answers, that this is a case in which the Court might to decree a sale of this property [p. 169] in execution of the Trusts.  Such a decree is agreeable to the manifest intention of the testator, and certainly to the equity of the case.  It is quite manifest that the testator meant to divide all the property he possessed at the time of his death, immediately share and share alike amongst his wife & children by both venters.  He could not have intended to leave his wife & the two sets of children destitute until it should be determined who should be the longest liver of the children, before the attainment of majority or marriage.  If such had been his intention why was his wife's marriage settlement made to merge in the property devised by his will?  It would have been a fraud on the wife, if her maintenance were to be suspended until the contingency happened, of all her children dying under age or before marriage.  Such could not, & obviously was not the intention of the testator, for by the very first clause, the property is devised to them in trust, immediately to pay & assign [p. 170] the property to the wife & children, upon his death. But if such intention were not manifest by the will, still on grounds of Equity, the children are not to be left destitute, during the most important period of their lives.  A case of necessity has been made out, - the sale is for the benefit of all the children, & we think that this is a case in which the court is bound to interfere.  We therefore direct that the bill and answers be referred to the Master to report thereon in order that a decree may be drawn up conformably to the prayer of the bill, and agreeably to the trusts of the wife.

 

Forbes C.J., Dowling and Burton JJ, 2 June 1834

Source: Australian, 6 June 1834[18 ]

 

Campbell and another v. Riley and others.-  This was a bill filed by the trustees and executors under the will of the late Edward Riley Esquire, praying a decree of the Court to enable them to sell the real estates devised by the testator, for the benefit of his widow, the two sons of a former marriage, Edward and George Riley, and the infant children by the last marriage.  By the will of the testator, made in 1815, he devised all his estate and effects of what nature or kind soever he should possess at the time of his decease to his trustees and executors, in trust, to pay and assign the same unto his widow, his two sons by a former marriage, share and share alike, with benefit of his surviving his widow and the children by the two mothers, or in the event of the children by his last marriage dying under age, or before marriage, then he gave the same estate and effects, in trust, for the benefit of his father and mother, and his sister.  The testator died after having made a codicil to his will appointing new executors.  At the time of the making of this will, which was executed at Calcutta, he was not possessed of any real estates; but at the date of the codicil he had acquired the valuable property called Woolloomoolloo, Raby, land on the Surry Hills, and several houses in Sydney.  After his death his eldest son and heir at law, Edward Riley, claimed the whole of the real estates on the ground that the will was not sufficient to convey the real estates to the trustees, and in 1829 he brought an ejectment to recover possession of a house in George street to try the validity of his father's will; and a case being reserved for consideration, the Judges, after two arguments, held that the will and codicil were sufficient to pass the real estates to the trustees to the uses of the testator's will.  The bill filed by the trustees was heard before the Court about two years since, and a decree was then made authorising the trustees to sell the estates for the benefit of those interested under it, subject to any opposition which might be made by Edward Riley, the heir at law, who was then out of the jurisdiction of the Court, and could not be served with the subpoena.  Since then Edward Riley had returned to the Colony, and had put in his answer to the bill, in which he admitted all the charges contained in it, as to the necessity of converting the real estates by sale, for the purpose of equally distributing the proceeds for the benefit of the devisees; but insisted that he, as heir at law, was entitled to the whole of the real estates, as well as his share of the testator's personalty.  The bill charged that the freehold property in question was of such a nature that it was incapable of being partitioned amongst the devisees, share and share alike, agreeably to the testator's will; and that by reason of the mode in which the property was tied up, the children of both mothers were deprived of the benefit of the testator's bounty until the youngest child should attain majority or become married - an event which might not take place for many years to come, and therefore prayed a decree of the Court to enable the trustees, in the mean time, to sell the property, and vest the proceeds in such real securities as would enable the infant children to be properly supported during their minority.  At the last hearing of the bill and answer, the only point made on behalf of Edward Riley was that the testator's will was a strict settlement, with contingent remainders over to persons in being, and that the Court could not, without prejudice to the remainder men, decree a sale for the purpose of convening the property into personalty.  The second son, George, and the infant children by the late Mrs. Riley, were consenting to the prayer of the bill, and it was admitted by all that it was necessary for the benefit of all parties, that the property should be sold with a view to give effect to the intention of the testator, if the Court should be of opinion that it had power to decree such a sale.

The Court was now clearly of opinion first, that the estates in question absolutely vested in the trustees, upon the death of the testator, for the benefit of the two sets of children, and that the contingency on which the property was to go to the persons in remainder not having happened they took the estates in fee; and secondly, that a case of necessity having been made out the trustees were authorised, on the authority of several decided cases, in selling the property, and applying the proceeds to the use of the children agreeably to the directions of the testator's will.  It was accordingly referred to the Master to make his report in order to enable the Court to direct a decree pursuant to the prayer of the bill.

 

Notes

[1 ] See also Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/2378, vol. 95, p. 97 (although much of it is in shorthand).

[2 ]  Marginal note in manuscript:  See Vol. 78. p. 139.

[3 ]  Marginal note in manuscript:  See Ante Vols. 22 & 26.

[4 ]  Marginal note in manuscript:  Inwood v. Twyne  Ambler 419. 2 Edn [?] 148.

[5 ] Curia advisari vult: the court wishes to be advised, or wishes to consider its decision.  This means that the judgment was not delivered immediately.

[6 ]  Marginal note in manuscript:  Ambl. 419.

[7 ]  Marginal note in manuscript:  Vol 26. p. 68.

[8 ] Marginal note in manuscript: Note the will.

[9 ]  Marginal note in manuscript:  id est ``Children of A Riley, - not Edward & Geo. Riley Sons by the former wife.

[10 ]  Marginal note in manuscript:  Ambler. 419.

[11 ]  Marginal note in manuscript:  Ves. Sen. 460.

[12 ] Marginal note in manuscript:  Ambler. 419.

[13 ] Marginal note in manuscript:  Wern. 436.

[14 ] Marginal note in manuscript:  1 Ves. Sr. 460.

[15 ] Marginal note in manuscript:  1 Ves.Jr. 463.

[16 ] Marginal note in manuscript:  1 Ver. 435.

[17 ] Marginal note in manuscript:  1 Ves Jr. 455.

[18 ] See also Sydney Gazette, 3 June 1834; Australian, 3 June 1834.  For other proceedings, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3281, vol. 98, p. 70.  On succession, see also Perkins v. Macdonald, Australian, 6 June 1834.

On 18 October 1834, Mr F. Stephen moved for a rule to show cause why Robert Campbell sen. should not be attached for contempt for not filing accounts in the estate.  Several thousand pounds had been in his hands as executor for many years, said Stephen, and the two legatees for whom he acted could not gain an accurate account of the estate.  The rule was granted.

Published by the Division of Law, Macquarie University