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IN THE SUPREME COURT OF QUEENSLAND O.S. No. 1279 of 1989
IN THE MATTER of The Supreme Court Rules Order 64 Rule 1A
IN THE MATTER of the Will of DOUGLAS DAVENPORT LOGAN late of “Pineview”, Kilcoy in the State of Queensland, Grazier, deceased.
JUDGMENT - RYAN J.
Delivered the Fifteenth day of February, 1990.
Application has been made on the part of one Georgina Mary Logan, one of the executors and trustees of the will of Douglas Davenport Logan deceased, for the determination of certain questions arising on the construction of his will. The questions are based upon cl. 3(c) of the will.
Clause 3 commences with these words “I give devise and bequeath all my real and personal property of whatsoever nature or kind and wheresoever situate to my trustees upon Trust as follows”. There then follow cll. 3(a) and 3(b) which provide for pecuniary legacies to be paid to his daughter Rita Norma Garland and his son Wallace Byron Logan. Then cl. 3(c) is in these terms:
“As to one half of my share in the interest in the station property known as ‘Pineview’ Kilcoy including all lands, improvements and plant for my wife the said, Georgina Mary Logan absolutely AND I DECLARE that it is my wish that my said wife shall be able to use, occupy and enjoy and make as her home my said station property ‘Pineview’ during her lifetime or for so long as she shall desire free of rent, rates, repairs, insurance and other outgoings and that my other one half interest in such property shall not be sold during the lifetime of my said wife unless she shall consent thereto.”
Clause 3(d) provides for all the testator's share and interest in a property known as “Wairuna”, all his share and interest in a company Douglas Logan and Son Pty. Ltd.,
and all his share and interest in the property known as “Springfield” to be held upon trust to retain the same both capital and income during the lifetime of his son Donald Louis Logan and his granddaughter Kay Lenora West and to pay the same at the absolute discretion of the trustees for or towards the benefit of either of them and upon their death UPON TRUST for Donald Norman West, son of Kay Lenora West. Clause 3(e) provides that the one half of the rest and residue of his estate be held upon trust for his son Douglas Bruce Logan, and the other half be held on trusts which are set out in cl. 3(f).
I have been asked to determine whether —
(a) Georgina Mary Logan has the right to use, occupy and enjoy the whole of the real property known as “Pineview” for her lifetime free of rent, rates, repairs, insurance and other outgoings;
(b) Georgina Mary Logan is entitled to rent or lease the whole or any part of the said property “Pineview” and receive the entire proceeds thereof during her lifetime;
(c) Whether the words “and other outgoings” which follow the words “free of rent, rates, repairs, insurance” included payment for wages, fuel, oil, gas and electricity to the extent reasonably necessary to maintain the said property, improvements and plant.
“Pineview” has an area of approximately 12,000 acres. Improvements on it consist of a house, cold room, three sets of cattle yards, a barn, 4 horse stables, cow shed and bales, 2 married men quarters, single men quarters, double car garage, 2 saddle sheds, blacksmith shop, tractor shed, workshop with 2 car bay, fencing, 6 dams, 3 windmills, and 2 cement tanks and cattle yards. A business of graziers was carried on pursuant to a partnership agreement upon “Pineview” under the name of “Pineview Partnership”, the partners originally being the testator, Georgina Mary Logan, Douglas Bruce Logan and Rita Norma Garland. The
which a testator directed his trustees to stand possessed of his residence known as “Goodrest” and “the furniture and fittings thereon upon trust to use and occupy the same for a home for my said wife during her life”. He also created various life estates in the ordinary way. It was held that the widow did not have a life estate in “Goodrest”, and had no right other than to use and occupy it as a home. Cussen J. said (at p. 257):—
“The argument between the parties came to this: On the one hand it was said that the words ‘use and occupation’ had come by judicial construction to mean that a person having the right to the use and occupation had also the right to let the home and retain the rent. On the other hand it was contended that although these words prima facie confer such a right, they do not amount to more than an expression of intention, which can be controlled by the intention to be gathered from the rest of the will; that it is not a rule of law, but merely a rule of construction.”
In Re Hoppe (1961) V.R. 381, Pape J. considered a clause in a will by which the real and personal estate of the testator was given to trustees upon trust
“to permit my wife Danne Hoppe and/or my daughter Danette Hoppe to continue to reside in the home occupied by my said wife and daughter and self at my death or in any other home purchased or leased thereafter as may be deemed expedient etc.”.
It was held that this provision conferred on the widow and on Danette no more than a personal right to reside in the house or in such other house as may be acquired for them by the trustees, and that the will did not confer an estate in the land upon either the widow or Danette. Pape J. said (at p. 387):
“In this case there are indications in the clause that the testator intended to give no more than a personal right of residence. They are, firstly, that the right given is to ‘reside’ in the house, not to ‘use and occupy’ the house. These latter words point mere readily to the gift of a life estate, while words such as “the
right to reside” are indicative of a mere personal right to live in the house .... Secondly, the use of the words ‘in the home’ indicate, I think, that the testator's intention was that the widow should treat the house as a home and this fact has led both Cussen J. (as he then was) and Schutt J. to conclude that a mere personal right was conferred .... Thirdly, the right of the widow and Danette are not exclusively in the house at Toorak; their right of residence extends to any other home purchased or leased by the trustees ‘as may be expedient’.....”
In Re Anderson (1920) 1 Ch. 175, a testator by his will directed that the widow should, during life or widowhood, be entitled “to use and occupy” his residence “for her own personal use and occupation”. It was held by Sargant J. that on the construction of the will she was not entitled to let the house and receive the rent, but had only an option, liberty or licence to occupy the home personally. He referred to Rabbeth v. Squire 4 De G.&J. 406, where Lord Chelmsford L.C. decided that a gift by will of the joint use and occupation of lands did not require personal use and occupation but permitted the donees to let the house. But Lord Chelmsford L.C. pointed out that that was the effect of the gift of the use and occupation, and especially that there was nothing in the terms of the other parts of the will that would reduce that general right to a right of personal use and occupation.
The submission for the applicant was that there was nothing in cl. 3(c) which reduced the applicant's right to a right of personal use and occupation of the property. In particular, it was said that the words “enjoy and make as her home” were additional to and did not detract from the effect of the words “use and occupy”, which should be construed as giving her a life interest in the property. Accordingly, cases which indicated that the effect of a direction to trustees to permit a person to reside in a property was not to confer on that person a life interest in the property were not applicable. For the respondents it was submitted that, even if a binding trust was created, the conjunction of the words “enjoy and make as her home” indicated that the intention of the testator was that his
declaring a wish as requiring something to be done; they have no mandatory effect.
In my view, the wish expressed is that the other half interest in the property shall not be sold during the widow's lifetime unless she consents thereto, so that she may be able to use, occupy, enjoy and make as her home the property during her lifetime or for so long as she shall desire. The wish is not merely that she should be allowed to make the property her home; it is also that she be able to use, occupy and enjoy it, free of outgoings which would arise from her use, occupation, enjoyment and making of a home on the property. That seems to me to include payments for wages, fuel, oil, gas and electricity to the extent reasonably necessary to maintain the property, improvements and plant, but not the expenses involved in running a business upon the property.
Accordingly, I answer the questions as follows:
(a) Has Georgina Mary Logan the right to use, occupy and enjoy the whole of the real property known as “Pineview” for her lifetime free of rent, rates, repairs, insurance and other outgoings?
Answer: No.
(b) Is Georgina Mary Logan entitled to rent or lease the whole or any part of the said property “Pineview” and receive the entire proceeds thereof during her lifetime?
Answer: No.
(c) Whether the words “and other outgoings” which follow the words “free of rent, rates, repairs, insurance” include payments for wages, fuel, oil, gas and electricity to the extent reasonably necessary to maintain the said property, improvements and plant?
Answer: Yes, but they do not include expenditure for conducting a business upon the said property.
I order that the costs of the parties as between solicitor and own client be paid out of the estate of the deceased.
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