In the matter of Leys [2000] VSC 164 (3 May 2000)

Last Updated: 12 May 2000

SUPREME COURT OF VICTORIA
COMMERCIAL & EQUITY DIVISION	Not Restricted

No. 6939 of 1999

IN THE MATTER of the Will of IAN HENRY LEYS, late of "Hyde Park", Burnbank, Victoria, Grazier deceased

DAVID CHARLES EDMONSTON and GEOFFREY ARTHUR FORSTER (who sue as Executors of the Will and Trustees of the Estate of the above named deceased.)	Plaintiffs
v
FRIENDS OF HENRY GEORGE INCORPORATED and Ors	Defendants

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2000
DATE OF JUDGMENT:	3 May 2000
CASE MAY BE CITED AS:	IMO Leys
MEDIUM NEUTRAL CITATION:	[2000] VSC 164

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WILL - devise of land - interpretation - incomplete description - extrinsic evidence - further devise of land in part false description - falsa demonstratio - devise of land subject to mortgage - gift to residue subject to payment of, inter alia, "all my just debts" - mortgage debt to be discharged out of property the subject of devise and not residue. Administration and Probate Act 1958 s.40

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Pascoe	Ian McMillan
The Second Defendant appeared on his own behalf
The Third Defendant appeared on her own behalf
The Fifth Defendant appeared on his own behalf

HIS HONOUR:

1. In these proceedings, which were commenced by Originating Motion, the plaintiffs as executors of the will and trustees of the estate of Ian Henry Leys, deceased, ("the testator") seek to have the court determine and answer a number of questions concerning the true construction of clause 6 of the will of the testator and also questions that have arisen in the administration of his estate.
2. The deceased died on 24 October 1997, leaving a will executed on 3 June 1993. Probate of the testator's will was granted to the plaintiffs by order on 4 May 1998. By clause 3 of the testator's will he made a number of specific monetary bequests to a person and organisations therein identified. By clause 4 of the will, the testator devised land therein identified, absolutely to the first plaintiff and Loretta Edmontson and further bequeathed chattels to them. By clause 5 of the will the testator devised land identified therein as "Crown Allotment 62B, 63A, 63B, 63B2 and 63C1 containing approximately 202 acres" to Graeme Walter Cheeseman and Jeanette Louise Cheeseman as joint tenants for their lives and upon their death to two named beneficiaries. By clause 6 of the will the testator provided -

"I give devise and bequeath my real estate known as 'Mine Plain' and 'Glen Heath' being 1 acre 1 rood 27 perches contained in Certificate of Title Volume 8614 Folio 327, one acre 1 rood 30 perches contained in Certificate of Title Volume 6937 Folio 226, 301 acres 2 roods contained in Certificate of Title Volume 6671 Folio 012, 5 acres 23 perches contained in Certificate of Title Volume 8477 Folio 525 together with allotment 62A containing 80 acres described in Certificate of Title Volume 4165 Folio 873 to Barry John Cheeseman and Alice May Cheeseman as joint tenants for their lifetime and upon their death to their children Simon Alexander Cheeseman, Russell John Cheeseman and Troy Roderick Cheeseman as tenants in common in equal shares."

3. Further, by clause 8 of the will, it was provided -

"Subject to the aforesaid I give devise and bequeath the residue of my estates both real and personal to my trustees upon trust to pay all my just debts, funeral, memorial and testamentary expenses and all probate estate, death and succession and other duties payable on or in connection with my will or estate including duties on property deemed to form part of my estate for the purpose of assessment and payment of duty and after payment thereof to hold the residue upon trust for The Henry George Foundation of 31 Hardware Street, Melbourne."

4. Further, by clause 9 of his will, the testator declared inter alia that the receipt of the treasurer or other proper officer for the time being of the said Henry George Foundation should be a full and sufficient discharge for his trustees.
5. The Henry George Foundation (Australia) is a trust formed by deed of trust dated 21 May 1928. There are some 21 trustees of the trust. On 28 April 1997, the first defendant, Friends of Henry George Inc, was incorporated under the Associations Incorporation Act 1981. William Pitt gave evidence to the court that he was a trustee of the Foundation and was the trustee authorised to have the management and conduct of these proceedings on its behalf. He gave evidence further to the court that the Friends of Henry George Inc had been formed and incorporated as the body to hold property and be registered as the proprietor of property of the trust and that such assets which had come from the executors of the will of the testator to the foundation as residuary beneficiary had been taken in the name of the incorporated body, the first defendant. Although Pitt was in attendance at the trial of these proceedings he otherwise sought to take no active part in the proceedings. The first defendant was not represented by a legal practitioner at the hearing of the proceedings. Troy Roderick Cheeseman referred to in clause 6 of the will of the testator was not made a defendant to the proceedings. The court was informed that he is a minor. On 11 October 1999 it was ordered that the fourth and fifth defendants, Simon Alexander Cheeseman and Russell John Cheeseman be appointed to represent Troy Roderick Cheeseman in the proceedings. On the trial of the proceedings the second defendant, Barry John Cheeseman; the third defendant, Alice May Cheeseman; and fifth defendant, Russell John Cheeseman, each appeared in person. The fourth defendant, Simon Alexander Cheeseman, did not appear, nor was he represented. Each of the second defendant, Barry John Cheeseman, and the fifth defendant, Russell John Cheeseman, took an active part in the proceedings, including making final submissions to the court.
6. The first and fourth questions set out in the Originating Motion and addressed to the court for its consideration and determination concerned the true construction of clause 6 of the testator's will. The second and third questions, which are questions addressed to the court in the alternative, are questions that have arisen in the administration of the estate of the testator. It is appropriate that I address the first and fourth questions first. By question 1, the plaintiffs seek determination of the question whether upon the true construction of clause 6 of the will of the testator the devise of the testator's the real estate known as "Mine Plain" is a valid devise of all the land contained in Certificate of Title Volume 4165 Folio 873, notwithstanding that the devise is not described by reference to the said title particulars or by any other means. By question 4, the plaintiffs seek a determination whether upon a true construction of clause 6 of the will, the devise of the "allotment 62A containing 80 acres", is a valid devise notwithstanding that part of the devise which describes the property as being that contained in Certificate of Title Volume 4165 Folio 873 is in error and that the property is in fact the whole of the land contained in Certificate of Title Volume 8579 Folio 414 and Certificate of Title Volume 9163 Folio 015.
7. I turn to consider question 1 first. In the affidavit of the first plaintiff sworn on 17 May 1999, the contents of which were confirmed by an affidavit sworn by the second plaintiff on 25 August 1999, the first plaintiff has deposed that the testator became registered as the proprietor of the whole of the land contained in Certificate of Title Volume 4165 Folio 873 in or about September 1987. The copy Certificate of Title exhibited to the affidavit of the first defendant confirms that he became the registered proprietor of that land on 7 September 1987. As appears from that Certificate of Title, the testator remained the registered proprietor of that land at the time of his death. The first plaintiff has further deposed that that land was known to the deceased and land owners within the surrounding area, of which he was one, as "Mine Plain" and that it was a property containing approximately 80 acres. In further oral evidence given to the court the first defendant swore that he was the nephew of the testator and had for a period leased the whole of the testator's property. He produced a parish map which he had marked up showing that which he said was the testator's property known as "Hyde Park", that portion of the land of the testator which was known as "Glen Heath", that portion of the land of the testator which he said was known as "Mine Plain" and again that portion of the deceased's land which he said was known as allotment 62A. He gave evidence that allotment 62A was an allotment within an area of land owned by the testator known as the "Douglas Land" which formed part of the land known as "Hyde Park". The area of land which he identified on the map as being that which was known as "Mine Plain", the first plaintiff said was part of the area of "Glen Heath". The witness said that as to the area which he had identified on that map as that known as "Mine Plain", locals in the area identified the paddocks and always referred to it as "Mine Plain". He further gave evidence that the area of land which was recognised and known as allotment 62A was opposite the allotment on which the house of Barry Cheeseman, the second defendant, was situated. That formed part of the Glen Heath property. The witness said that the size of that area of land known as allotment 62A was approximately 80 acres.
8. In an affidavit sworn by the second defendant, Barry Cheeseman on 8 November 1999 and filed in these proceedings he deposed, inter alia, that the testator had purchased the property known as "Mine Plain" on 27 March 1987 through a nominee. There was exhibited to his affidavit a copy of the Particulars of Sale dated 27 March 1987 describing the property sold as "Mine Plain at Talbert". The land referred to in those Particulars of Sale and being the subject of the sale was further described as being the land described in Certificate of Title Volume 4165 Folio 873.
9. From the evidence of the first plaintiff Edmontson and that of the second defendant, as referred to, I am satisfied that the land described in Certificate of Title Volume 4165 Folio 873 and in respect of which the testator became the registered proprietor on 7 September 1987 was land generally known as and known to the testator as "Mine Plain". I am satisfied that the land described in Certificate of Title Volume 4165 Folio 873 was not the land known during the life of the testator as "allotment 62A". That land was land situated to the north-west of the land known as "Mine Plain" and opposite the house occupied by the second defendant Barry Cheeseman. I am satisfied further that the land generally known as allotment 62A comprised approximately 80 acres.
10. In Brennan v Permanent Trustee Co of NSW Ltd [1945] HCA 17; (1945) 73 CLR 404, Dixon J at 414 said -

" ... To determine the meaning of the will, the language of the testator must be read in the sense which he himself appears to have attached to the expression he used, that is unless a rule of law gives some fixed operation. When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with that intention, though not sufficient to control it, such expressions must be discarded or modified. The language of the testator should be moulded to carry into effect as far as possible the intention which, in the opinion of the court, the testator has, on the whole will, sufficiently declared. That is the rule of interpretation expressed in the well known passage and judgment delivered in the Privy Council by Lord Kingsdown in Towns v Wentworth [1858] EngR 371; (1858) 11 Moore PC 526, at p.543 [1858] EngR 371; [14 ER 794 at p.800]. Further the court may take into account the circumstances in which the will is to be applied as they existed at the time it was executed."

11. On the evidence before the court I am satisfied that by clause 6 of his will the testator intended to devise to the second and third defendants for their joint lives and thereafter upon their death to their three named children, inter alia, that part of his real estate which was known to him and recognised by the name "Mine Plain". That is the land described in Certificate of Title Volume 4165 Folio 873. The fact that in his will the testator did not more particularly describe that land by reference to a Certificate of Title does not, in my view, cause that part of the devise contained in clause 6 to be invalidated and so the first question in the Origination Motion must be answered "yes".
12. Turning further to the fourth question, I am satisfied from the evidence of Edmontson that that piece of land owned by the testator during his life and which was generally known as allotment 62A was that identified on the parish map marked up and produced by him, being Exhibit P4. That area of land has as its western boundary the creek identified by Edmonston as Doctor's Creek and it is the area of land on that map marked J. Smith. The land was approximately 80 acres in size. On the evidence of Edmontson that land has as its southern boundary the road known as Browns Road. This land formed part of the land which Edmontson said was known as the "Douglas Land". He gave evidence that in addition to allotment 62A the other parts of the land known as the Douglas Land were allotments 63A, 63B, 63C, 62B and 62C1. When one has reference to the Certificates of Titles copies of which comprise Exhibit "DCE-11" to the affidavit of the first plaintiff Edmontson sworn on 17 May 1999 being Certificates of Title Volume 8579 Folio 414 and Volume 9163 Folio 051 that area of land identified by Edmontson on Exhibit P4 as being the land known as allotment 62A is to be seen as that on the map on the sheet annexed to each Certificate of Title and being identified with the mark "62A". That allotment as appears from such Certificates of Title is Crown allotment 62A of Parish of Caralulup, County of Talbolt. It comprises part of the land contained in each of those latter Certificates of Title not the whole. Allotment 62A as identified by Edmonston is not the land described in Certificate of Title Volume 4165 Folio 873. As referred to earlier the land described in that Certificate of Title is the land which is and was known as "Mine Plain". That area of land is situated to the south east of that being allotment 62A.
13. Counsel for the plaintiffs submitted to the court that in addressing question 4, regard should be had to the rule of construction - "falsa demonstratio non nocet, cum de corpore constat". In footnote 70 to paragraph 1112.2 in Law of Wills - Hardingham, Neave and Ford, the authors state that such rule "Literally ... means that a false description does not vitiate the document when the thing is described with certainty".
14. In Re Charleson [1968] VicRp 29; [1968] VR 252, Starke J referring to that rule of construction, as applicable to the provisions of a will, at p.255 said -

"It is a rule of construction that if of various terms used to describe a subject matter, whether a person or a property, some are sufficient to ascertain the subject matter with certainty but others have a description which is not true these other terms are not allowed to vitiate the gift. The false description must be superadded to what is otherwise clear."

15. In Re Purcell (1898) 24 VLR 478, a testator by his will directed that "the land section 82 in Seymour" should be held in trust for his sister for life remainder to her issue. The testator did not own nor was there in Seymour any land being section 82, however, he did own two pieces of land adjoining one another in Seymour, one of which being 82 acres, the other 31 acres. Oral evidence was admitted to show what land was intended by the gift. It was held that the testator's sister should take a life interest in the land comprising of 82 acres.
16. In Hardwick v Hardwick (1873) LR 16 Eq 168 the will of the testatrix contained two misdescriptions, one as to description of the parish in which land was situated and the other in respect of the occupation of the land. The Lord Chancellor (Lord Selborne) gave effect to that which he found was the intent of the testatrix by excluding the words of misdescription. At p.175 Lord Selborne said -

"It is perfectly certain that if all the terms of description fits some particular property, you cannot enlarge them by extrinsic evidence so as to exclude anything which any part of those terms does not accurately fit. On the other hand, I apprehend that if the words of description when examined do not fit with accuracy, and if there must be some modification of some part of them in order to place a sensible construction on the will, then the whole thing must be looked at fairly in order to see what are the leading words of description and what is the subordinate matter and for this purpose evidence of extrinsic facts may be regarded."

17. Examples of courts determining that which was a false description in relation to a gift in a will not vitiating the gift, but rather effect was given to that which was determined to be the intent of the testator are to be seen in Re O'Mullane (1955) VR 217 at 224 and Re Hackett [1966] VicRp 31; (1966) VR 232 at 237-8.
18. By clause 6 of his will the testator devised to the second and third defendants for life and thereafter absolutely to the three named children, parts of his real estate including "Allotment 62A containing 80 acres described in Certificate of Title Volume 4165 Folio 873". I am satisfied on the evidence of Edmontson that part of the real property owned by the testator at his death was that commonly known as allotment 62A and it was situated as identified by Edmontson by reference to the parish map, Exhibit P4, and also the maps on the sheets annexed to the Certificates of Title Volume 8579 Folio 414 and Volume 9163 Folio 015. To describe that land by reference to it being the land described in Certificate of Title Volume 4165 Folio 873 was a misdescription. The words in clause 3 describing the land as "Allotment 62A containing 80 acres" was the primary description of the land the subject of this gift. The title description was in my view subordinate to that description. I am satisfied that it was the intent of the testator to devise to the second and third defendants for life and thereafter to their three named children the land being Allotment 62A which land is part of the land, but not the whole described in Certificates of Title Volume 8579 File 414 and Volume 9163 Folio 015.
19. In my view, question 4 in the Originating Motion should be answered, "upon a true construction of clause 6 of the will the devise of "allotment 62A containing 80 acres" to Barry John Cheeseman and Alice May Cheeseman as joint tenants for their lifetime and upon their death to their children Simon Alexander Cheeseman, Russell John Cheeseman and Troy Roderick Cheeseman as tenants in common in equal shares is a valid devise of the property being Crown Allotment 62A Parish of Caralulup County of Talbot and being part of the land described in Certificates of Title Volume 8579 Folio 414 and Volume 9463 Folio 015".
20. I next turn to consider questions 2 and 3.
21. At the time of the death of the testator the land owned by him being "Mine Plain" and being the land described in Certificate of Title Volume 4165 Folio 873 was subject to a registered mortgage to Peter Lewis Finkelstein, Michael Lipschutz, Marcel Alter, Leon Freedman and Norman Freedman. It is necessary to give some short description of the circumstances in which that mortgage became registered over that property and the circumstances that have occurred with respect to the same subsequent to the death of the testator. In February 1995, solicitors practising under the name FLA Partners were the solicitors acting for the second defendant, Barry Cheeseman, in proceedings brought against him. On 10 February 1995, the testator entered into a written agreement with the solicitors, FLA Partners, to pay the legal costs of the second defendant, Barry John Cheeseman, as exceeded $55,000 but limited to no more than $90,000. It was provided by that agreement that to better secure the payment of the legal costs the testator agreed to mortgage to the solicitors his interest in the land comprised in Certificate of Title Volume 4165 Folio 873 and agreed to enter into a mortgage in favour of the solicitors. On 10 February 1995, the testator executed a mortgage over that land to the five persons to whom I have referred and who were then members of the firm FLA Partners. As appears by Certificate of Title Volume 4165 Folio 873 that mortgage was registered on 14 February 1995. In or about July 1996, by action No. 6185 of 1996 issued in this court by FLA Partners against the testator, FLA Partners sought an order for possession of the land or alternatively payment of the sum of $37,033.64 together with interest. In those proceedings the testator joined the second defendant, Barry John Cheeseman, as a third party. Those proceedings were still extant at the time of the death of the testator on 24 October 1997. On 8 May 1998, the plaintiffs as executors of the will of the testator were, by order, joined as defendants to those proceedings. On 26 June 1998, the proceedings between FLA Partners and the plaintiffs as executors of the will of the testator were settled, it being agreed that the present plaintiffs would pay to FLA Partners the sum of $26,000 in full and final settlement of the claim of FLA Partners inclusive of interest and costs.
22. It was provided by the terms of settlement in that proceeding that, "At the option of the defendants [the plaintiffs to these proceedings] of which written notice will be given to the plaintiff [FLA Partners] the plaintiff will at its own cost prepare a discharge or transfer to the defendants of the mortgage No. T554751H in respect of the property contained in Certificate of Title Volume 4165 Folio 873". In his affidavit, Edmontson has deposed that pursuant to the terms of settlement the plaintiffs paid to FLA Partners the sum of $26,000. From the evidence of Edmontson it appears that although that sum has been paid, at no time before the trial of this action have the plaintiffs taken a discharge or transfer to them of the subject mortgage.
23. In cross-examination by Barry John Cheeseman, Edmontson gave evidence that the decision to pay FLA $26,000 was made on legal advice, in order to clean up the estate and that he and the second plaintiff had decided that that would be the best way and that further, on legal advice, it was cheaper to pay FLA Partners $26,000 than to continue and go through the court case.
24. As to the third party proceedings in that action and being between the plaintiffs to these proceedings and Barry John Cheeseman, the second defendant to these proceedings, it was ordered by a Master of the court on 15 December 1999 that the proceedings be dismissed and that there be no order as to costs.
25. The matter to be addressed in considering questions 2 and 3 is whether the devise of "Mine Plain" being the land described in Certificate of Title Volume 4165 Folio 873 carries with it the obligation of the registered mortgage or whether that obligation does not follow the gift to the beneficiary but is to be paid out of the residue.
26. Section 40 the Administration and Probate Act 1958, which had its origins in the Real Property Act 1864 s.150, which in turn adopted the provisions of Locke King's Act 16 and 18 Vic., c.113., provides -

"40. Charges on property of deceased to be paid primarily out of the property charged

(1) Where a person dies possessed of or entitled to or under a general power of appointment (including the statutory power to dispose of entailed interests) by his will disposes of an interest in property which at the time of his death is charged with the payment of money whether by way of mortgage charge or otherwise (including a lien for unpaid purchase money) and the deceased has not by will deed or other document signified a contrary or other intention the interest so charged shall as between the different persons claiming through the deceased be primarily liable for the payment of the charge; and every part of the said interest according to its value shall bear a proportionate part of the charge on the whole thereof.

(2) Such contrary or other intention shall not be deemed to be signified -

(a) By a general direction for the payment of debts or of all the debts of the testator out of his personal estate or his residuary real and personal estate or his residuary real estate; or

(b) By a charge of debts upon any such estate -

unless such intention is further signified by words expressly or by necessary implication referring to all or some part of the charge.

(3) Nothing in this section shall affect the right of a person entitled to the charge to obtain payment or satisfaction thereof either out of the other assets of the deceased or otherwise.

27. In Re Cockcroft (1883) 24 Ch D 94, Kaye J at p.98 identified the three statutes known as the Locke King's Act and being 17 and 18 Vict. c.113, (1854), 30 and 31 Vict. c.69 (1867) and 40 and 41 Vict. c.34 (1877) and at p.98 and 99 he said -

"The object of these enactments was to subject any real estate of a testator or intestate to all the encumbrances upon it in exoneration of the personal estate or other real estate and to prevent the heir or devisee from being able to insist that the personal or other estate should be applied to discharge them. The former rule of administration, which entitled him to claim such exoneration, was fixed when personal estate was comparatively of small value or account and the law favoured greatly the heir or the devisee of the real estate. That law has been relaxed by degree first by subjecting real estate to the payment of the debts of the deceased and more recently by statutes which have made it primarily liable to all legal and equitable charges expressly in exoneration of the personal or other assets."

28. In Griffith's Probate Law and Practice in Victoria, 3^rd Ed, the learned author in his notes to s.40 of the Administration and Probate Act at p.73 states -

"The object of the legislation is to subject charged property to all charges upon it in exoneration of the general estate".

29. On his own behalf and representing Troy Roderick Cheeseman and it appeared on behalf of the defendants other than the first defendant, the fifth defendant Russell Cheeseman submitted to the court that by the terms of clause 8 of the will and in particular that part which provided that the residue of the estate of the testator both real and personal was devised and bequeathed to the trustees upon trust, "to pay all my just debts ... " was a statement of intention by the testator that the obligation with respect to the mortgage over the property "Mine Plain" was to be discharged out of residue. In his final submissions to the court, counsel for the plaintiffs submitted in substance that the submission of the fifth defendant had no regard to sub-s.(2) of s.40 of the Administration and Probate Act. On behalf of the plaintiffs it was put that whereas the plaintiffs had paid to the mortgagees the sum of $26,000 entitling them to have the mortgagees provide a discharge of the mortgage or a transfer of the mortgage to them, that latter step had not been undertaken pending the determination of these proceedings. It was contended that in the circumstances there still remained to be answered the question of whether the obligation to discharge the mortgage remained with the beneficiary of the devise of "Mine Plain" or whether that obligation was to be met out of the residue of the estate.
30. In The Will of Fisher [1948] VicLawRp 3; [1948] VLR 8, Fullagher J had before him a will which devised to the defendant property which was subject to a mortgage. By a clause of the will the testatrix provided that the "rest residue and remainder of my real and personal estate subject to the payment thereout of the above legacies and all my just debts funeral and testamentary expenses probate duty and estate duty charges and provisions of a tombstone and my grave not exceeding the cost of £50 and all other charges" should go to named children of the testatrix. It was argued that by reference to that clause the mortgage debt should be discharged out of the residue of the estate. In dealing with that argument and specifically with reference to the expression "all my just debts his Honour at p.9 said - " ... it was in fact held in England before the amendment embodied in s.35(2) [of the Administration and Probate Act 1928] was introduced, that a direction to pay debts out of residue was sufficient to require charges on specifically given property to be paid out of residue. But sub-s.(2) now makes it clear, I think, that what is provided here in those words as to the payment of debts is insufficient to signify the contrary or other intention which the statute contemplates". Section 35(2) of the Administration and Practice Act 1928 is in the same terms as s.40(2) of the present Act. In my view, that said by Fullagher J has direct application to the present case. Clause 8 of the will of the testator provided that subject to the provisions specifically provided by his will the residue of his estate, both real and personal, was to be devised and bequeathed to his trustees upon trust to pay, inter alia, all his "just debts". It was after the payment inter alia of the same that the residue was to be held upon trust for the Henry George Foundation. In my view, s.40(2)(a) of the Act has direct application to the present case. The direction to his trustees to pay from the residue of his estate both real and personal all his "just debts" cannot constitute the expression of a contrary or other intention by the testator in his will to exclude the operation of s.40(1) thereby casting the burden on the residue of the estate of the testator the obligation to discharge the charge over the property "Mine Plains" as constituted by the mortgage.
31. Counsel for the plaintiffs informed the court that he was not aware of any deed or document which bore on the intention of the testator as is relevant to s.40(1). However, during the course of submissions made by the fifth defendant, Russell Cheeseman and the second defendant Barry Cheeseman, they sought to rely on an affidavit of the deceased sworn on 12 September 1996 in the proceedings brought against him by FLA Partners. A copy of such affidavit was produced. I admitted the same into evidence. From the contents of that affidavit it appears that the same was sworn by the testator seeking to have a default judgment entered in those proceedings against him set aside. I have read the affidavit. The contents of the same deal with the circumstances in which the testator entered into the agreement with FLA Partners on 10 February 1995. By paragraph 13 of his affidavit, the testator deposed that he could not recall signing any mortgage, but further deposed that the signature on the mortgage, being relied on by the plaintiff, appeared to be his signature. There is contained in that affidavit no statement of the testator which could be construed as a statement signifying an intent by the testator contrary to the rule contained in s.40(1) of the Act.
32. In my view neither the will of the testator or the further document relied on by the second and fifth defendants, being the affidavit of the testator sworn on 12 September 1996 signify any intention of the testator contrary to rule in s.40(1) of the Administration and Probate Act 1958 so as to cause the residuary estate of the testator to bear the obligation of discharging the mortgage registered on the title to the land "Mine Plain".
33. The devise of the land "Mine Plain" is subject to and carries with it the obligation to discharge the mortgage registered on the title to that land by payment of the mortgage debt which in the circumstances of this case is the amount paid by the plaintiffs as executors of the will of the testator to the mortgagees pursuant to the terms of settlement entered into in the proceedings previously referred to.
34. In my view question 2 should be answered "no" whereas question 3 should be answered "yes".
35. For the reasons expressed it is ordered that the questions set out in the Originating Motion be answered as follows:

- Question 1 - "Yes".

- Question 2 - "No".

- Question 3 - "Yes".

- Question 4 - "Upon a true construction of clause 6 of the will, the devise of "allotment 62A containing 80 acres" to Barry John Cheeseman and Alice May Cheeseman as joint tenants for their lifetime and upon their death to their children Simon Alexander Cheeseman, Russell John Cheeseman and Troy Roderick Cheeseman as tenants in common in equal shares is a valid devise of the property being Crown Allotment 62A Parish of Caralulup County of Talbot and being part of the land described in Certificates of Title Volume 8579 Folio 414 and Volume 9463 Folio 015".

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