The Commissioner of Land Tax has forwarded the following memorandum for advice:

Will you be so good as to favour me with your advice on the following case: By his will A.B.C. directed that his widow should have the personal use and enjoyment of the dwelling-house in which testator resided, for her life, and subject thereto the whole of his real estate was to be held upon trust, the trustees being directed to sell and to stand possessed of the net moneys which were to be devoted to specific purposes.

Following upon your advice given under date 22 July 1914⁽¹⁾ in the case of the estate of D.E., deceased, the widow was not regarded as life tenant of the property in question, her title being regarded merely as one of a right of user.

The solicitors for the estate (Messrs Oldham & Oldham) contend that Mrs C. is life tenant of the property. They state that were the dwelling-house let, Mrs C. would be entitled to the rents and profits, and quote in support the following authorities:

Rabbeth v. Squire 19 Beav. 70

Mannox v. Greener 14 L.R. Eq. 456

Coward v. Larkman 60 L.T. 1

Gleeson v. Gleeson 12 V.L.R. 783

National Trustees Co. v. Keast 22 V.L.R. 447

Theobald on Wills, 5th edn, pp. 189, 427.

It is stated that the Supreme Court of Victoria in Trustees Executors & Agency Company v. Crosbie and others⁽²⁾ decided that except for the purpose of paying liabilities of the said testator's estate, the executors have no right to realise or mortgage the said dwelling-house.

Mr Weigall in a case submitted to him by the trustees advises that Mrs C. must pay the rates and taxes on the dwelling-house.

Will you be so good as to advise me whether the Department is correct in treating the widow as has been set out. If it be decided that she is the life tenant of the property, a separate non-taxable trust will be created and the trustees' assessment proportionately reduced.

Copy of the late Mr C.'s will herewith. I do not think that the Commissioner was correct in not assessing the widow as tenant for life of the dwelling-house.

The widow in this case is granted the personal use and enjoyment of the dwelling-house of the testator.

It has been decided in a long line of cases that the devise of the 'free use' or 'the use and occupation' of land during a person's life passes an estate for life in the land, and is not confined to the mere personal use of the land (vide cases quoted in the Commissioner's memorandum).

In the present case the expression is not 'the use and occupation', but 'the personal use and enjoyment'.

The word 'personal' seems at first glance to limit the devise to the mere personal right of residing on the land, but I think that the expression 'personal enjoyment' covers something wider than 'personal occupation'.

Land could, I think, be personally enjoyed by being let at a rental.

If the grantee is given the power to let or assign the land, that right implies the grant of an estate in the land, and not merely a right to personally use and occupy the land.

In my opinion, the widow had, under the will, been granted an estate for life in the dwelling-house of the testator.

[Vol. 14, p. 22]

(1)Not Published in Vol.1.

(2)Apparently not reported.