until R.R., her son, attained ten years, and
thereafter to devote half the income to the edu-
cation and bringing up of R.B. in such manner
as the trustees deemed fit and proper, until R.R.
attained the age of twenty-one years. The
will then provided for a gift over of the whole of
the residue to K.R. in the event of R.R. dying
before he reached the age of twenty-one years,
and further provided that should both R.R.
and K. R. die before R.R. attained that age the
whole of the residue should pass to his two
.nephews. R.R. attained the age of twenty-one
years, and at that time K.R. and the testator's
nephews were still living.

WILL-Continued.

223

A testator devised and bequeathed his freehold
residence, which was subject to a mortgage,
and the furniture and household effects in the
residence, to trustees upon trust to permit
his wife during her widowhood to reside in the
residence, and to have the use and enjoyment
of all the furniture and household effects free
from all duties or other moneys payable. The
trustees were directed to insure the house against
fire, and to pay all rates and taxes and insurance
premiums out of the residuary estate, and to
invest any insurance money which might be
received in the event of the residence being
destroyed by fire, and to pay the income there-
from to the wife during life or widowhood.
Provision was also made that if the wife during
widowhood gave notice that she did not desire
to reside in the residence, the trustees were to
sell it, and to hold the purchase money received
either for the purchase of another house and
furniture with the wife's consent, over which
she was to have the same rights of user and en-
joyment, or upon trust to invest the same and
Re ROBERT WALKER, DECEASED, ROMILLY pay the income to the wife for life or widowhood.
AND ANOTHER v. ROBINSON AND OTHERS.
On the re-marriage or death of the wife, the
F.C. 74 property all fell into the testator's residuary
ortgage-Devise of property subject estate, and a general power of postponement
to-Direction for payment of debts out of residuary of sale of any of the testator's property was
estate-Exoneration of mortgaged property-given to the trustees.
The Equity Act of 1867 (31 Vic., No. 8), s. 78
(Locke King's Act)-Settled land-Tenant for
life--Trust to permit wife during widowhood to
reside in dwelling house-Use and enjoyment
Non-residence-Power to let-Application of rent
-The Settled Land Act of 1886 (50 Vic., No. 13),
88. 6, subsec. 1 (ƒ), 13, 53.

Held, that there was no intestacy as to any
part of the testator's property; that the whole
of the corpus of the residue passed by implication
to R.R. on his attaining twenty-one years;
and that R.R. was entitled to one half and to
the unexpended portion of the other half of
the income derived from the residuary estate
during the period between the time he was ten
and twenty-one years old.

3.

In construing s. 78 of The Equity Act of 1867,
the Court adopted the interpretation placed
on Locke King's Act (of which that section is a
rescript) by the Courts of Chancery in England
prior to the passing of the explaining Act of
30 and 31 Vic., c. 69.

had the powers of a tenant for life under The
Held, that under the terms of the will the wife
could, with her consent, let the house pending
Settled Lands Act of 1886, and that the trustees
its sale.

QUEENSLAND TRUSTEES LIMITED v. FINNEY
AND ANOTHER
F.C. 98

BRISBANE:

POWELL AND CO., PRINTERS, LIMITED,

ADELAIDE STREET.

WEEKLY Notes of decisions in the Courts of Queensland will be

published in this journal under authority of the Council of Law Reporting. They will be re-published in form for binding with the State Reports. Noted cases of permanent interest will be reported in full in the State Reports.

The Notes do not purport to be reports, and to facilitate reference to the actual decision, the date of the decision, with the names of counsel and solicitors engaged, will be appended to each Note. Special attention will be given to Practice Cases.

The Notes will be referred to as Q.W.N. (Queensland Weekly Notes), preceded by the year, and followed by the number of the Note, thus1905, Q.W.N. 1.

This was a motion to the Court in a matter referred by the Registrar under O. LXXI r. 7.

John Walmsley died in October, 1904, having duly made a will by which A. and B. were appointed executors and trustees, and all his property after payment of his debts was given to his wife- The will contained the following clause: "I declare that should any vacancy occur in the trusteeship of this my will, from death during my lifetime or otherwise, disclaimer, resignation, unfitness, or incapacity, I appoint the The Queensland Trustees Limited as my executor and trustee, or executors and trustees, as the case may be." A., one of the trustees appointed, predeceased the testator.

QUEENSLAND WEEKLY NOTES.

FEBRUARY 10, 1905.

On application being made for probate of the will, the Registrar, doubting whether the above clause was intended to act as a substitutionary appointment, and whether the grant should be made to B. alone or to the Queensland Trustees Limited and B., required the application to be made to the Court.

Macgregor, for the applicant: The term "trusteeship" in the will means the office, and as one of the trustees appointed by the testator survives, there has been no "vacancy in the trusteeship." The testator never intended that the Queensland Trustees Limited should act in sub-titution of either of the trustees appointed, but only in the event of neither of them filling the office.

COOPER C.J. held, that on the strict interpretation of the will, the testator intended that the Queensland Trustees Limited should only be appointed in the event of the office of trusteeship ceasing to be occupied by any of the persons appointed by the will, and ordered probate to be granted to B.

In re WALMSLEY, 14th December, 1904, COOPER C.J., IN COURT. Counsel: Macgregor. Solicitors: Atthow & McGregor.

2. The Land Act, 1897 (61 Vic. No. 25), ss. 53, 91, 92, 95.-Land

Regulations, 1903, Reg. 18.—Meaning of term "Cash.”

APPEAL FROM DECISION OF A LAND COMMISSIONER.

The appellant and one Lethbridge each lodged an application for the same portion of land at the same time within the meaning of s. 95 of The Land Act of 1897. The appellant's application was accompanied by the amount of the first year's rent, and one-fifth of the survey fee in cash; and the application of Lethbridge was accompanied by a cheque for the amount payable as rent and survey fee. The Commissioner directed a ballot to be taken under regulation 18 of The Land Regulations, 1903, which resulted in favour of Lethbridge, whose application was thereupon accepted. The appellant appealed to the Land Court. Evidence was given before that Court by James Hobson, the appellant's husband, who stated that he was present at the Court, and objected on the appellant's behalf to a cheque being accepted as cash, and that he did not withdraw his objection. The Commissioner stated that it was the practice to receive cheques if not at all doubtful, especially in cases like this where there was no bank in the place where the applications were lodged. He further stated that the applicant, F. A. Lethbridge, stated in Court that she could get the cash; and the appellant's attorney, J. Hobson, said, "I am satisfied."

46

Dyball: (1) Sections 91 and 92 of the Act were complied with by F. A. Lethbridge; (2) The only person entitled to object to a cheque being received was the Crown as represented by the Commissioner, and the Commissioner accepted the amount and gave a receipt for it; (3) The appellant waived any objection to the cheque being received. Cash," in sections 91 and 92, does not mean coin, but is opposed to "credit"; people should not be compelled to get coin or legal tender in places where there are no banks. Cheques are regarded as cash in business transactions. He also referred to the expression "sterling money or bank notes " in section 49 of The Elections Act of 1885, the expression "sterling money or Treasury notes" in The Local Authorities Act of 1902, Schedule III, clause 5 (2); and the expression money or bank notes or a banker's cheque " in section 97 of the Commonwealth Electoral Act 1902; and contended that the expression "cash" in the Land Act should be construed liberally.