Crawford v Crawford [1974] PNGLR 30

• Jurisdiction: Papua New Guinea
• Judge: Frost SPJ
• Judgment Date: 03 October 1972
• Citation: [1974] PNGLR 30
• Docket Number: In re Crawford Decd
• Court: Supreme Court
• Year: 1974
• Judgement Number: No704

Full Title: In re Crawford Decd; Crawford v Crawford [1974] PNGLR 30

Supreme Court: Frost SPJ

Judgment Delivered: 3 October 1972

1 Wills

2 Provisions for equal sharing of estate by 3 daughters approved; condition giving trustee absolute discretion re payments while one remains married void; never legally married to the man; other sisters' benefits discretionary until age 25

3 WILLS—Construction—Condition—Termination of marriage—Corpus to vest only if marriage terminated—No existing marriage—Not contrary to public policy—Expression "permanently separated" void for uncertainty—Condition of no effect since presupposing a non–existent state of affairs.

4 WILLS—Construction—Vested or contingent interest—Absolute discretionary power in trustees to pay income during infancy and until attain 25 years—Interest vested in law but postponed in possession.

A Testator devised and bequeathed the residue of her estate upon trust to divide the same into three equal parts and to transfer one–third part to each of two named daughters on attaining 25 years, with absolute discretionary power to the trustees to pay income from each third share "during infancy . . . and thereafter until they attain 25 years". As to the remaining one third part the Testator provided by clause (f):—

"To pay in my trustees absolute discretion the income of the remaining one–third share to my daughter Elizabeth Ann Simler during her lifetime unless and until my said daughter should become permanently or judicially separated or divorced from her husband or should become a widow whereupon I direct my trustee to transfer the said one–third share to Elizabeth Ann Simler."

At the date of the Testator's death her daughter Elizabeth Ann Crawford was unmarried and had not been married, though she had lived with Mr Simler as man and wife for some time.

On a special case to determine the estates and interests taken by each of the three daughters;

Held

(1) There being no subsisting marriage which the provision in paragraph (f) of the will might tend to disrupt it could not be said to be contrary to public policy; public policy is contravened only if some real mischief can be caused by the provision.

In re Johnson's Will Trusts; National Provincial Bank, Ltd v Jeffrey and Others [1967] 1 Ch 387 distinguished.

(2) The expression "permanently separated", involving as it does a repugnancy, that part of the provision should fail for uncertainty.

In re Allen decd; Faith v Allen [1953] 1 Ch 810 per Evershed MR at 817, 818 and In re Caborne [1943] 1 Ch 224 at 230 applied.

(3) As, to give effect to the condition would mean that it could only operate in a manner not contemplated by the testator, there being in fact no marriage which could be affected or terminated, and possibly so as to defeat her intention, the circumstances justified the application of the principle that if a condition presupposes a state of affairs which does not exist, it should be taken to have no effect. Accordingly the condition failed and Elizabeth should take absolutely.

Yates v University College of London (1873) 8 Ch App. 454 applied.

(4) The direction as to income was sufficient to confer upon each daughter an interest, vested in law but postponed in possession, in a one third share of the residue: the direction to pay the income in the meantime even though discretionary being sufficient indication that any part of the income unpaid was to be transferred with the corpus to the daughter entitled.

Dictum of Jessel MR in In re Parker (1880) 16 Ch D 44 at 45 and In re Geering decd [1964] 1 Ch 136 applied.

Special Case

In this action the executors of the will of the testatrix and the three daughters as beneficiaries of the residuary estate concurred in stating in the form of a Special Case for the opinion of the Court questions of law involved in the construction of the will of Marjorie Rose Crawford deceased. The matters so to be determined were the estates and interests in the real and personal estate of the testatrix taken by each of her three daughters. The relevant provisions of the will are set out in the reasons for judgment.

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Frost SPJ: By her will dated 10 January 1969, after providing for the appointment of executors and trustees and also a gift of personal effects and furniture to the testatrix's husband with a direction to distribute these between her three daughters or the survivor of them in equal shares, the testatrix devised and bequeathed the residue of her estate to the use of her trustee upon trust to sell call in and convert the same into money etc and stand possessed of the proceeds to:

"(a) Pay all of my just debts and funeral and testamentary expenses . . .

(b) Divide the residue of my estate of three equal parts (sic).

(c) To transfer one–third part to my daughter alison jane crawford upon her attaining the age of 25 years.

(d) To transfer one–third part to my daughter prudence margaret crawford upon her attaining the age of 25 years.

(e) During the infancy of the said alison jane crawford and prudence margaret crawford and thereafter until they attain the age of 25 years I direct my trustees to pay in their uncontrolled discretion the income from their respective shares to the said alison jane crawford and prudence margaret crawford.

(f) To pay in my trustees absolute discretion the income of the remaining one–third share to my daughter elizabeth ann simler during her lifetime unless and until my said daughter should become permanently or judicially separated or divorced from her husband or should become a widow whereupon I direct my trustee to transfer the said one–third share to elizabeth ann simler.

(g) I direct that if the said elizabeth ann simler shall fail to attain the vested interest in such one–third share then upon her death my trustee shall stand possessed of one–half of the said one–third share as an accretion to the share of alison jane crawford and the other one–half of the said one–third share as an accretion to the share of prudence margaret crawford."

Each of the three daughters (whom, for convenience, I shall refer to by their first names) who are the defendants to the action, survived the testatrix who died on 15 May 1969. Alison is a minor; Prudence has attained 21 years but not 25 years of age.

The main difficulty that has arisen in the construction of the will is due to the facts as stated in the Special Case, that "the person in the will named as Elizabeth Ann Simler was, at the date of the deceased's death, and at all material times, Elizabeth Ann Crawford", and that Elizabeth Ann Crawford "at the date of the deceased's death, and at all material times, was unmarried and had not been married". It was common ground before me that the testatrix's mistaken belief that Elizabeth was married to Mr Simler was due to the facts that Elizabeth let it be known that they were married, and that they were living together. Evidence filed on behalf of Elizabeth, which I have looked at without objection by the parties, indicates that they were not married because Mr Simler was married to another woman. At the date of the testatrix's death, that marriage had been dissolved by decree nisi, which became absolute after her death, but Elizabeth and Mr Simler have not since married. A child had been born to them whilst the testatrix was living. Since the latter's death they have continued living together, and a second child was born to...