Coulls v Bagot's Executor and Trustee Co Ltd

(1967) 119 CLR 460

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(Judgment by: Barwick CJ)

Between: Coulls
And: Bagot's Executor and Trustee Co Ltd

Court:

Judges:
Barwick CJMcTiernan J
Taylor J
Windeyer J
Owen J

Subject References:
Contract
Indemnity and Contribution
Equity

Hearing date: Adelaide, 29 and 30 September 1966
Judgment date: 21 March 1967

Sydney

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Judgment by:
Barwick CJ

1. Arthur Leopold Coulls of Highbury East, South Australia, died on 8th June, 1960, having made a will by which he appointed Bagot's Executor and Trustee Co. Ltd. (which I shall call the executor) to be his executor and trustee. He was the owner of a property known as "Watergully" comprising in all some three hundred acres. In January 1959 he gave to O'Neil Construction Pty. Ltd. (which I shall call the company) a right to quarry and remove stone from an area of approximately fifty acres of this property. The writing by which the grant of this right was made was in the following terms:

"Agreement between Arthur Leopold Coulls and O'Neil Construction Proprietary Limited. In consideration of the sum of 5 pounds I Arthur Leopold Coulls, Anstey's Hill, Highbury East, give to O'Neil Construction Proprietary Ltd. the sole right to quarry and remove stone from an area of approximately 50 acres (fifty acres) situated around blue dolomite hill near homestead of original Newman's Nursery. The approximate 50 acres is detailed in attached map.

I also agree to grant a permanent right of way along the original Council road of 'Watergully' to Perseverance Road.

O'Neil Construction Proprietary Ltd. agrees to pay at the rate of 3d. per ton for all stone quarried and sold, also a fixed minimum royalty of 12 pounds per week for a period of ten (10) years with an option of another ten (10) years at above basis (12 pounds per week minimum).

I also agree to extend this period for another ten (10) years at 4d. per ton royalty with a minimum royalty of 12 pounds per week as above.

I authorise the above Company to pay all money connected with this agreement to my wife, Doris Sophia Coulls and myself, Arthur Leopold Coulls as joint tenants (or tenants-in-common?) (the one which goes to living partner).

This agreement is effective from July 1st 1959

A. L. Coulls L. O'Neil D. S. Coulls." (at p467)

2. It was signed by the deceased, L. O'Neil on behalf of the company and by Doris Sophia Coulls the wife of the deceased (whom I shall call the respondent), as well. (at p467)

3. Questions having arisen in the administration of the estate of the deceased as to the rights arising from the signature of this document and under the will of the deceased, the executor, upon originating summons, asked the Supreme Court of South Australia the following questions:

1.

Is O'Neil Construction Pty. Ltd. entitled or bound to pay the royalties payable under the said agreement to the applicant, Bagot's Executor and Trustee Co. Ltd.?

2.

Is O'Neil Construction Pty. Ltd. entitled or bound to pay the said royalties to Doris Sophia Coulls, the deceased's widow?

3.

If the said royalties are paid to the applicant, does it receive and hold the royalties as executor or trustee of the deceased's estate or for and on behalf of the said widow or for the widow and the deceased's estate jointly or in common?

4.

Is the said widow the assignee of the said royalties and is she entitled to demand that payment of them be made to her and to hold them as her own? (at p468)

4. In April 1960 a large house and land comprising about 33 acres, known as "Hillcrest", on the old Mount Barker Road, Aldgate, South Australia, was purchased at auction for the sum of 21,000 pounds of which the deceased provided some 7,335 pounds in cash. The balance was obtained by two advances secured by mortgages of the property, each to the same mortgagee, a first mortgage of 10,300 pounds and a second of 3,800 pounds. The land was transferred into the names of the deceased and the respondent as joint tenants and they both signed each of the mortgages which contained a joint and several personal covenant to repay principal and interest. In October 1963 the mortgagees sued the executor in two separate actions for the amount due for principal and interest under the respective mortgages. In each action the executor served a third party notice upon the respondent claiming contribution from her on the footing that she was a joint debtor with the deceased and complete indemnity from her on the footing that she was now the beneficial owner of the land upon which the mortgage debts were secured. The respondent contested both claims. Meantime, being uncertain of the outcome of these several proceedings, the respondent commenced proceedings under the Testator's Family Maintenance Act, 1918-1943 (S.A.), for an order making proper provision for her maintenance and advancement in life out of the estate of the deceased. The provision made by the deceased for the respondent by his will consisted of bequests of a Humber motor car, 1,000 pounds, a right to occupy the home and three acres of ground at Highbury East for her life, the respondent bearing certain outgoings in respect of the property, and also by cl. 7 he directed his

"trustees to appropriate out of my residuary estate the sum of Twenty thousand pounds (which sum or the investments for the time being representing the same is hereinafter referred to as 'the trust fund') and to stand possessed of the trust fund upon trust to invest same and to pay the income to arise therefrom to my wife the said DORIS SOPHIA COULLS during her lifetime and on the death of my said wife I DIRECT that the trust fund together with the income thenceforth to accrue shall revert to and form part of my residuary estate and be dealt with accordingly AND I EXPRESSLY EMPOWER my trustees to appropriate any of the assets or investments comprising my residuary estate at the time of my death on account of the aforesaid sum of Twenty thousand pounds and to retain any such assets or investments notwithstanding the nature thereof as though such assets or investments were authorised trustee investments and with power to vary or transpose any such investments AND I EXPRESS the wish that my trustees will if they shall consider such a course practicable appropriate on account of the aforesaid sum of Twenty thousand pounds my property known as 'Water Gulley' comprising approximately three hundred acres AND I DIRECT that pending the appropriation of the aforesaid sum my said wife shall be paid from my residuary estate an annuity of One thousand pounds per annum such annuity to be paid in equal monthly instalments the first of which to become due and payable one calendar month after my decease and to cease on the day when the aforesaid sum shall have been appropriated". (at p469)

5. By an order made by the Master of the Supreme Court upon the application of the executor the proceedings under the Testator's Family Maintenance Act were referred into court to be heard on oral evidence at the same time as the originating summons which I have firstly mentioned and the third party proceedings in the two actions. (at p469)

6. All four matters were therefore heard together partly upon affidavit and partly upon oral evidence. In the result the learned judge of the Supreme Court who heard them declared:

(1)

that the company was neither entitled nor bound to pay to the executor the royalties payable under the writing which I have earlier set out;

(2)

that the company was both entitled and bound to pay such royalties to the respondent;

(3)

that the respondent is the lawful assignee of such royalties and entitled to demand payment of them to her and to hold them as her own. (at p469)

7. He held that the respondent was not liable to indemnify or to make any contribution to the executor in respect of the judgments obtained against it by the mortgagees. He dismissed the respondent's application under the Testator's Family Maintenance Act and ordered her to pay the executor's costs of that application. (at p469)

8. Appeals have been brought to this Court in all four matters, in three of which the executor is appellant and in the last of which, that relating to the application under the Testator's Family Maintenance Act, the respondent is appellant. All four appeals were by consent of all parties called on and heard together. It was conceded at the outset by counsel for the respondent that if the appeals by the executor were all dismissed, there would be no ground for making an order in favour of his client under the Testator's Family Maintenance Act and that, subject to consideration of the order for costs made by the primary judge, the appeal relating to the application under the Testator's Family Maintenance Act should be dismissed. It was, however, agreed by all parties to that application that if any of the executor's appeals were allowed, the dismissal of the respondent's application should be set aside. The Court intimated to the parties in that application that in that event the application would be sent to the Supreme Court for a new trial, a course which none of those parties sought to contest. (at p470)

9. There are thus three substantial matters for decision in these appeals -

(1)

What rights were created by the writing signed by the deceased, the company and by the respondent in January 1959 and what effect has the death of the deceased had upon any of those rights?

(2)

Can the respondent receive and hold the said royalties as her own and also take the full benefit of the direction given in cl. 7 of the will? This matter is raised by the executor as a facet of the fourth question asked in the originating summons.

(3)

What liability, if any, of the respondent to the executor arose upon the recovery of judgment by the mortgagees against the appellant executor, by reason of (a) the respondent having joined with her husband in the personal covenants of the mortgages; (b) her entitlement by survivorship upon his death to the sole proprietorship of the property "Hillcrest". (at p470)

10. It will be convenient in respect of the first and third of these matters to relate some further part of the evidence given before the primary judge and to refer to his conclusions upon it. (at p470)

11. The deceased prior to the signature of the writing in January 1959 had negotiated with Mr. O'Neil for the grant to the company of permission to quarry part of the area of "Watergully". At some stage he informed the respondent of these negotiations. She gave the following evidence as to the occasion on which the writing was made and signed:

" . . . my husband first informed me of the negotiations. I didn't take part in the negotiations. Mr. O'Neil and my husband talked it over, they dictated, I wrote it. I wrote out the agreement at their dictation. I wrote the agreement in the Highbury East dining room at lunch time. The agreement was drawn up without professional assistance. I rang Mr. Crump, a solicitor, but couldn't contact him. I rang him at request of Mr. O'Neil and my husband. The words 'joint tenancy' came to be written in because first my husband said . . . I was to have the income, all the income, but after discussions, I did not think that was quite fair, so he said while he lived, we would share it. But it was to come to me on his death and then, there was a discussion about the correct term.

There was discussion between all three of us, not one of us knew the correct term, we couldn't find a dictionary. We didn't know whether joint tenancy or tenants in common was the apt expression. That is why the words at the end were added." (at p471)

12. The writing was signed in duplicate, each original in the handwriting of the respondent. Both are in evidence and it is evident from a perusal of them that the document as a whole was signed by all three persons. It was not divided into parts so that any of the signatures can be referred to only some portion of it. After the document had become operative, the company paid the royalties by cheque drawn to the deceased and the respondent. She says in her evidence:

"Following on the signing of the agreement the cheques were made out to A. L. and D. S. Coulls by O'Neil. We received them once a month; my husband banked them in his account and then drew up a separate cheque for half the amount, which he gave me. That was the practice up until his death." (at p471)

13. Since the death of the deceased the company has paid the royalties to the respondent and she has treated them as her own moneys. (at p471)

14. The deceased and the respondent had married in 1954. She then had property of her own and, indeed, had earlier sold the property "Watergully" to the deceased. Each of them had been married before but whilst the deceased had two children, the respondent, Leopold Perrin Coulls, and the respondent, Evelyn Hazel Lange, by his first marriage, the respondent had had no children by either marriage. The deceased and the respondent occupied a house at Anstey's Hill, Highbury East, as their matrimonial home up to the time of the death of the deceased. Their marriage was a happy one but, according to the respondent, she was "not too popular with the family". The primary judge found that hostility had developed between her and the children of the deceased. The deceased and the respondent therefore decided to move the matrimonial home. Accordingly, the deceased decided to buy a better property with more facilities than existed at Highbury East. Both husband and wife attended the auction at which "Hillcrest" was put up for sale. The respondent did the bidding as the deceased was hard of hearing and whilst he did not set her any specific limit he did tell her when only two bidders remained "not to lose the property". The learned primary judge concluded that the property "was knocked down to him at her bidding for the price of 21,000 pounds". After the auction a contract was signed and the deceased gave the auctioneers his cheque for the deposit. The contract was not put in evidence and it is not known whether it was signed by the husband alone or by the husband and wife. No question was asked at the hearing by counsel for the executor to suggest that the respondent signed the contract. According to her "the house was to be his while he lives and mine after because before we bought it he said 'if I buy you this house, will you promise to live in it if I go first'" to which the respondent said she responded affirmatively. (at p472)

15. The deceased paid one-third cash for the property. As the respondent said in her evidence:

" . . . the rest was a mortgage taken out in both our names for three years at six per cent. There were two mortgages but we classed them as one".

Between the date of the purchase and the date of his death the deceased endeavoured by an attempted sale of the Highbury East house and otherwise to obtain sufficient money to discharge these mortgages; but death supervened before he succeeded in doing so. According to the respondent, her husband had said that the debt on "Hillcrest" was his debt and that she had nothing to worry about. The learned primary judge concluded that it was the intention of the deceased himself to discharge the mortgage debts and that the respondent was joined in the personal covenants of the mortgages to satisfy the mortgagees. (at p472)

16. I turn first to the construction of the writing which was signed by the three persons in January 1959. It may be accepted that this writing was the exclusive record of the agreement then made and that it may not be supplemented by parol evidence. However, its construction will be determined against the background of the then situation and known attitudes of the parties. (at p472)

17. It is quite evident that the deceased wished to secure to his wife the produce of his grant of permission to quarry and carry away stone from "Watergully", as to one-half in his lifetime and to the whole after his death, if he predeceased her. It is also clear that he desired to do so by the writing which all three were then signing. I think it may also be taken that the respondent was very anxious in her own interest to be secure in respect of the moneys to come from the licence to quarry though she had not participated in the preliminary negotiations for its grant. The insistence upon a minimum royalty of 12 pounds per week is indicative I think of solicitude for the respondent's security. There was a discussion in which both Mr. O'Neil and the respondent participated about the person or persons to whom the payment of the royalties should be made. At no stage do they appear to have considered that the deceased alone should be the recipient except in the possible but not probable event of his surviving the respondent. Mr. O'Neil also participated in the formulation of the last paragraph of the writing. (at p473)

18. Then there is a reference to the survivor as the "living partner". Whilst it may be unlikely that a partnership was created between the deceased and his wife in connexion with the quarry activity, and whilst it may be that the word "partner" might possibly be a colloquial reference to their marital status, the word in the context of the writing as a whole does lend colour, to my mind, to the impression the document and the circumstances otherwise create that the persons intended a legal relationship to exist between the respondent and the company in connexion with the payment of royalty. (at p473)

19. The right to quarry was to endure for ten years certain with an option of a further ten years on the same terms. There was also an agreement to extend the period for a further ten years at a slightly increased rate of royalty. The deceased at the date of the writing was seventy-five years of age and the respondent about sixty. It is therefore unlikely that he contemplated that he would personally be in a position to renew the licence after a lapse of twenty years. He doubtless considered that the respondent would during that period become the survivor of them. (at p473)

20. The last paragraph in the writing refers to "all money connected with this agreement". This indicates, to my mind, that the deceased considered himself to be then determining the destination of the produce of his grant of the right to quarry for the whole period during which that right might subsist. The arrangement which was then being made for the payment of the royalty, in my opinion, was not conceived by the deceased or any of the other persons present as being or intended to be revocable but, on the other hand, was regarded as finally determining the identity of the recipients or recipient of all payment under the arrangement throughout the whole of its duration. (at p473)

21. The last paragraph of the writing in terms refers to payment of such moneys to the deceased and to the respondent jointly with the express intention that payment should continue to be made to the survivor. Thereafter, so far as payment to himself in case he should be the survivor, the deceased, the company, and the respondent must be taken to have considered that the right to that payment would be derived from his survivorship and not from a direct promise to the deceased alone which had subsisted throughout. (at p474)

22. However, it is the written expression of intention that must govern the rights of the parties. The use of the words "I authorise" in the last paragraph of the writing might well be taken as indicating that at that point the deceased alone was in control of the destination of the moneys promised to be paid, that is to say, that he was both the promisee and the payee. But the construction of the document involves a search for what the parties by their expressions really meant and is not to be answered by any narrow view of the customary legal significance of any particular word. I have already pointed out that the "authority" is to pay to his wife and to himself with right of survivorship. Of course, the deceased was the only person who could and did grant the right to quarry and remove stone from the land. He was the only one who could grant the necessary permanent right of way. Also, he or his representative would be the only person who could extend the period of the right to quarry. It is noteworthy that the parties do not seem to have regarded the promise to pay the royalty as the consideration for the grant by the deceased of these rights. They provided for the payment of 5 pound as being the consideration, but they treated the entire writing as being the agreement. Having regard to the deceased's situation in relation to the land, it would be natural I think for the parties to require some specific statement by him if he was not to be the sole recipient of the royalty payments. Thus the words "I authorise" in the last paragraph could well be read as in part indicating the concurrence of the deceased in the agreed payment of the royalty by the company to the respondent and himself jointly, and their use is not, in my opinion, but with deference to those who may think otherwise, decisive. (at p474)

23. Whilst one cannot impute to these parties any knowledge of the law relating to mandates or assignments, it does seem to me that both the deceased and the respondent desired to bind the company to pay them both during their joint lives and thereafter the survivor whom I think they both expected to be the respondent. There is nothing to suggest that the company was unwilling so to be bound. Mr. O'Neil's interest in the correct term by which to describe the persons to whom the company was to pay the royalty is not without significance in this connexion. Of course, it may be thought that the deceased and the respondent thought that their desire in this respect could be secured by an authority to pay. But in that event there would have been no need, and I do not think the deceased and the respondent would have thought there was any need for her to sign the writing. Yet she did. (at p475)

24. Neither the promisee nor the payee are expressly mentioned in the third paragraph of the writing which contains the company's promise to pay and the last paragraph is not dissociated from the rest of the writing but is in fact subscribed on behalf of the company. What then is the right construction of the writing? Ought it to be read as a promise by the company made to the deceased to pay the deceased the royalty the benefit of which or the proceeds of which the deceased contemporaneously assigned to himself and the respondent jointly, or is it such an agreement with a contemporaneous authority to pay either intended to be revocable at the will of the deceased or necessarily so revocable because of its terms? Or does the writing express on its right construction an agreement by the company made either with the deceased alone or with the deceased and the respondent to pay the deceased and the respondent jointly? If it is an agreement made with the deceased to pay the deceased accompanied by a mere authority by him to pay the royalties to himself and his wife that authority terminated with death, notwithstanding that according to its terms the deceased contemplated that it would be operative beyond his death. In that event the answers given by the learned primary judge could not be sustained. (at p475)

25. Apparently the primary judge construed the document as containing such an agreement by the company with the deceased to pay him the royalties, but was of opinion that the benefit of that promise was assigned by the deceased by the final paragraph of the writing to himself and the respondent. But, with respect, I am unable to find in the final paragraph of the writing any assignment. In my opinion, it cannot be held that there was a legal assignment of the benefit of the promise made to the deceased to pay him the royalty : see s. 15 of the Law of Property Act, 1936-1956 (S.A.). I do not find in the writing either language appropriate to an assignment or language describing an intention to assign. Further, in so far as the proceeds of the promise, as distinct from the promise itself, are concerned, there was no consideration given by the assignees to support an equitable assignment. Though I agree with the learned trial judge that the writing clearly evidences an intention on the part of the deceased that the respondent should have the benefit of the promise to pay the royalty, if his unexpressed intention was to secure that result by assignment of the promise or of its proceeds, effect cannot be given to such an intention. Consequently, I could not in any event support the third declaration made on the originating summons. Further, it seems to me that neither of the other declarations made by the primary judge would be supportable if the basis on which he found an assignment was correct, namely, that there was a promise by the company with the deceased to pay him the royalties. (at p476)

26. It seems to me that the radical question in the case is whether or not the last paragraph of the writing is no more than a mere authority to pay. If it were, its presence in the writing would resolve both the question as to the promisee and the payee with and to whom the company agreed to pay. If it is not a mere mandate and is not, as I think it is not, an attempted assignment, then it seems to me that the parties intended a direct legal obligation on the part of the company to make the payments of royalties as directed. The intention of all three persons that the respondent was to participate in the proceeds of the grant of the licence to quarry, in "all money connected with the agreement", is beyond question. The circumstance that payment was to be made to the deceased and the respondent and to the survivor of them, in my opinion, negatives any intention that that situation was considered to be capable of change at the will of the deceased. I have already mentioned that the use of the expression "all money connected with this agreement" in the circumstances rather tends against such a view. And significantly the last paragraph is incorporated in the agreement as a whole and the document as a whole is subscribed by all three persons and notably by the respondent. I have searched for any reason for the signature of the document by the respondent but have been unable to find any except the reason that she was intended to be a party to the document. (at p476)

27. In In re Williams; Williams v. Ball (1917) 1 Ch 1 to which we were referred in argument, an authority to pay the proceeds of a life insurance policy to a named person in the event of the signatory predeceasing her was held to be no more than a revocable mandate none the less so though it was intended to operate after the death of the signatory. It was not an assignment: and as an authority to receive there was nothing to show that it was intended to be irrevocable. Indeed, it was clearly revocable because payment was only to be made if the named person survived the signatory. In that case it was sought to construe expressions in the form of an authority as an assignment. Once it was decided that there was no assignment either for want of the necessary intention, in relation to which revocability was a relevant consideration or that any such intention was ineffective, nothing remained but to give the writing an operation according to its mere form. But here of course the competition in construction is not merely between assignment or mandate. Here the intention is that payment to the deceased and the respondent jointly shall commence at once, continue throughout their joint lives and thereafter be made to the respondent for the balance of the term of the licence. In my opinion, upon its right construction the last paragraph is not a mere mandate or authority to pay. It serves in the document as a whole to complement the third paragraph and to nominate the person to whom the company promises to pay the royalties. Having formed this conclusion, after much consideration, it seems to me that the writing as a whole should be construed as evidencing an agreement by which the company, having been granted by the deceased a binding licence to quarry stone from the land, promised to pay the royalty payments to the deceased and the respondent for their joint lives and thereafter to the survivor of them. (at p477)

28. If that is the right conclusion to draw from the writing, as I think it is, then it is clear that the company is both entitled and bound to pay the royalties to the respondent and that the executor could not require the company to pay the royalties to it. Whether the promise to pay the husband and wife jointly was a promise made to them jointly or to the deceased alone, the answers to questions 1, 2 and 3 would be the same and they would conform to the declarations 1 and 2 which the learned primary judge made. (at p477)

29. The originating summons does not in terms raise any question as to the enforcement of payment of the royalties. Indeed, according to the facts of the case, the company is continuing to pay the royalties to the respondent and nothing in the evidence suggests that it proposes to discontinue that course. However, it was argued by counsel for the executor that whether the promise to pay the deceased and the respondent jointly be made with the deceased and the respondent or whether it be made with the deceased alone, the respondent could not enforce it or require the executor to do so for the reason that she gave no consideration for the making of the promise. As the question of the enforcement is thus specifically raised, I propose to say something about it. (at p477)

30. Before turning to discuss its enforceability it is convenient to determine with whom the promise was made. As I have already said, there is nothing in the writing to indicate expressly to whom the promise of the company was given. But, bearing in mind the matters to which I have already referred, the grant of a licence to quarry for a cash consideration, the participation of the company's representative in the discussion as to the payees and the signature of all three parties in what was regarded as a single arrangement, I have come to the conclusion that not only was the promise to pay a promise to pay the deceased and the respondent during their joint lifetime and thereafter the survivor of them but that it was a promise given to both of them to make those payments. (at p478)

31. It must be accepted that, according to our law, a person not a party to a contract may not himself sue upon it so as directly to enforce its obligations. For my part, I find no difficulty or embarassment in this conclusion. Indeed, I would find it odd that a person to whom no promise was made could himself in his own right enforce a promise made to another. But that does not mean that it is not possible for that person to obtain the benefit of a promise made with another for his benefit by steps other than enforcement by himself in his own right : see the recent case of Beswick v. Beswick (1966) Ch 538 . I would myself, with great respect, agree with the conclusion that where A promises B for a consideration supplied by B to pay C then B may obtain specific performance of A's promise, at least where the nature of the consideration given would have allowed the debtor to have obtained specific performance. I can see no reason whatever why A in those circumstances should not be bound to perform his promise. That C provided no part of the consideration seems to me irrelevant. Questions of consideration and of privity are not always kept distinct. Indeed, on some occasions when lack of privity is the real reason for not allowing a plaintiff to succeed on a promise not made with him, an unnecessary and irrelevant reason is given that the plaintiff was a stranger to the consideration ; that is to say, that he was not merely not a party to the agreement but was not a party to the bargain. In Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd. [1915] AC 847 privity was not lacking because it was assumed, but the promise made by the defendant to the plaintiff was as between them gratuitous. But in this case whether the promise was made by the company to the deceased alone or to the deceased and the respondent, it was not as between promisor and promisee a gratuitous promise. (at p478)

32. But as I construe this writing, we have here not a promise by A with B for consideration supplied by B to pay C. It was, in my opinion, a promise by A made to B and C for consideration to pay B and C. In such a case it cannot lie in the mouth of A, in my opinion, to question whether the consideration which he received for his promise moved from both B and C or, as between themselves, only from one of them. His promise is not a gratuitous promise as between himself and the promisees as on the view I take of the agreement it was a promise in respect of which there was privity between A on the one hand and B and C on the other. Such a promise, in my opinion, is clearly enforceable in the joint lifetime of B and C : But it is only enforceable if both B and C are parties to the action to enforce it. B, though he only supplied the consideration, could not sue alone. If C were unwilling to join in the action as plaintiff, B no doubt, after suitable tender of costs, could join C as a defendant. And A's promise could be enforced. But the judgment would be for payment to B and C. If B would not join in an action to enforce A's promise, I see no reason why C should not sue joining B as a defendant. Again, in my opinion, A's promise would be enforced and a judgment in favour of B and C would result. In neither of these cases could A successfully deny either privity or consideration. I find nothing in Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd. [1915] AC 847 to suggest that he could. (at p479)

33. Upon the death of one of the joint promisees the promise remains on foot and remains enforceable but it is still the same promise given to B and C though, because of the death of one and the right of survivorship, the promise is now to pay the survivor. C, it seems to me, being the survivor, may enforce the promise by an action to which both B's estate and C are parties. However, C could not, in any event, in my opinion, be the sole plaintiff against A because A's promise was not made with C alone. Consequently, B's personal representative would need to be either a co-plaintiff or joined as a defendant, though in this case the judgment would be for C alone, the promise with B and C being to pay the survivor of them : see Attwood v. Rattenbury (1822) 6 Moo CP 579, at p 584 (23 RR 633, at p 636) . (at p479)

34. Being of this opinion it is unnecessary for me to discuss the question as to whether and, if so, how the respondent could enforce a promise made to the deceased alone to pay her and the deceased for their joint lives and thereafter the survivor of them. In my opinion, however, the right to quarry being specifically enforceable, the executor could enforce the promise to pay the respondent. If he happened to receive them, he could not retain the proceeds of the action beneficially. The question whether C can require the executor to enforce such a promise, or by any means use the executor's name to do so need not presently be investigated. (at p479)

35. In my opinion, questions one, two and three should be answered in the same sense as the first and second declarations made by the primary judge. (at p480)

36. So far as the claims of the executor that the respondent indemnify or make contribution are concerned, I have found little difficulty. The basis of these claims is, as to contribution, that the deceased and the respondent were joint debtors between whom there is generally a right of contribution, and as to indemnity, that the respondent has become absolutely and beneficially entitled to the property upon which the mortgage debts were charged. But these claims are simply answered by either of two cognate arguments. The deceased bought the house. It was not as was the case in McMillan v. National Trust Co. (1931) 2 DLR 369 upon which the executor's counsel set considerable store, a commercial purchase by husband and wife to which each made a separate financial contribution. It was bought by the husband and conveyed into the joint names of the two of them by way of advancement to the wife as to her joint interest in the land. Apart from any presumption, which of itself would be enough, the intention so to do is manifest in the evidence. The subject matter of the advancement was not, in my opinion, an equity but clearly a freehold : cf. per Warrington J. in Dunbar v. Dunbar (1909) 2 Ch 639, at p 646 . So to conclude denies any right to contribution or indemnity by the respondent in respect of the mortgage debts. Alternatively, it can properly be said that the borrowing of money upon the security of the land was to provide the deceased with the purchase money for the property. It was not borrowed for them both but for him alone. The signature of the mortgage, including its personal covenant, was not intended by the parties to create any right of contribution or indemnity. The learned primary judge was right to dismiss the third party proceedings. (at p480)

37. The third of the substantial questions which I set out earlier in these reasons can also be disposed of very briefly. The executor's submission is that the respondent as a beneficiary under the will of the deceased is put to her election. The counsel said that, because the royalties provided the income of the "Watergully" property the respondent could only take the benefit of the direction in cl. 7 of the will which I have earlier set out, if she credited against the income of the 20,000 pounds there mentioned or of any income substituted for it under the powers given by that clause of the will the amount of the royalties received by her under the writing of January 1959. Or put another way, she must abandon the royalties to the executor if she is to take the benefit of the direction in cl. 7 of the will. (at p481)

38. But it seems to me that this proposition stems from a misconception of the terms of the will and of the relevant facts. Clause 7 of the will gives to the respondent the income of 20,000 pounds. It does not give her the income of "Watergully", though it enables the trustees to raise, and, if thought practicable by them, indicates the deceased's desire that they should raise the amount of 20,000 pounds out of "Watergully". Further, if it matters, there is nothing to show that the royalties do form the sole income of "Watergully". Finally, there does not seem to me to be any case for election on the part of the respondent. I see no reason why she should not retain the royalties and at the same time have the benefit of the direction given by the deceased in cl. 7 of his will. (at p481)

39. In my opinion, all appeals should be dismissed but the order of the Supreme Court varied by substituting for the declarations therein made the following answers to the questions in the originating summons:

Question 1 : No.

Question 2 : Yes.

Question 3 : If the executor received the royalties he would hold them for the respondent.

Question 4 : The respondent is not the assignee of the royalties but, as one of the promisees of the company's promise to pay them, she is entitled to demand payment of the royalties to her and to hold them as her own. (at p481)

40. I have considered the question of the order for costs made by the learned primary judge on the dismissal of the respondent's application under the Testator's Family Maintenance Act. It would seem that the reference of that application into court and the order for its contemporaneous hearing with the executor's applications was not at her request or with her consent. However, she did have the benefit of the application being on foot and, whilst I might not have taken the same course, I am not disposed to interfere with the exercise of discretion of the primary judge in making his order for costs. (at p481)