The Acting Comptroller-General and Public Trustee has forwarded for advice the following memorandum:

Under the War Precautions (Enemy Shareholders) Regulations 250 shares in the Commercial Bank of Australia Limited registered in the names of A.B. and Mrs C.D.E. were transferred to the Public Trustee and sold. Mr A.B.E. died on 5 January 1920.

Enclosed is copy of a joint will, to which attention is invited to paragraph (1) of Article II

.

I am in doubt as to whether under the will Mrs E. is entitled to enjoy the use of the whole of the estate or whether she is entitled to receive only the income derived from it, and shall be glad of the Secretary's advice on this point. Article 1 and paragraph (1) of Article II of the will read as follows:

Art. I

In the first place we cancel the marriage settlement made in Article 2 of the marriage contract made between us under date Baden Baden the 16th of February 1903 and direct instead in the event of the surviving spouse declining to continue the community of property as follows:

Art. I

(1) We appoint each other mutually sole heirs in the meaning of Article 2269 of the Civil Code and direct that after the death of the surviving spouse the estate left by both of us shall go to our children in equal shares. The will being made under German law must, I think, be interpreted according to German law.

Article 2269 of the German Civil Code provides as follows:

Where the spouses have directed in a joint will whereby each appoints the other heir, that after the death of the surviving spouse the estate of both shall devolve on a third party, it is to be presumed, in case of doubt, that the third party has been appointed heir of the surviving spouse for the whole estate.

Apparently there was general community of goods as regards the property of Mr and Mrs E. and accordingly by Article 1483 of the Civil Code if Mrs E. had not declined to continue the community of property, the community of goods would have continued between Mrs E. and the descendants of the marriage who would be entitled to inherit in the case of statutory succession.

There is no statement in the file as to whether the community of goods has continued (see Articles 1484, 1943 and 1944 of Civil Code) but from the fact that the will has been certified by the German authorities and is presumably being put forward as governing the disposition of the property, I assume that the surviving spouse has declined to continue the community of goods and that the will governs the disposition of Mr E. 's estate on his death.

The joint will is, I think, governed by Articles 2270 and 2271 of the Civil Code, and cannot therefore be revoked by Mrs E. unless she has, within the statutory period, disclaimed the inheritance from her husband. (See Articles 1943 and 1944 of Civil Code.)

Presumably she has not made that disclaimer.

Paragraph (1) of Article II of the will is, therefore, to be given effect to. Although the matter is not free from doubt, I am inclined to the view that Mrs E. only has a life estate. She certainly has no power to dispose, by will, of the property mentioned in the joint will, and I think the intention of the testators is that the children should ultimately succeed to the estate.

If, however, Mrs E. and all the other descendants were, at the date of the coming into force of the Treaty of Peace with Germany, German nationals, all the property in Australia left by Mr E. would, in my opinion, be subject to the charge created by regulation 20 of the Treaty of Peace Regulations, and it would be unnecessary to decide what interest Mrs E. took under the will.

[Vol. 19, p. 271]