Claybourn, Re [1991] QSC 331

IN THE SUPREME COURT OF QUEENSLAND o.s. No. 305 of 1991 Before Mr. Justice Mackenzie Counsel: Solicitors: IN THE MATTER of The Supreme Court Rules Order 64 Rule 1A -and- IN THE MATTER of the Will of LOUISA ALICE CLAYBOURN late of 21 Bradshaw Street, Wooloowin, Brisbane in the State of Queensland, widow, deceased JUDGMENT - MACKENZIE J. Delivered the 15th day of November, 1991. R.S. O'Regan Q.C. and D.R. Murphy for ExecutorsJohn Claybourn and Edna May Bartlett. P. Dutney Q.C. and R.J. Douglas for Respondent Raymond John Claybourn. Corrs Chambers Westgarth for Executors. Sly & Weigall Cannan & Peterson for Respondent. Hearing date: 8th-9th August, 1991 -- 1 of 21 -- IN THE SUPREME COURT OF QUEENSLAND o.s. No. 305 of 1991 IN THE MATTER of The Supreme Court Rules Order 64 Rule 1A -and- IN THE MATTER of the Will of LOUISA ALICE CLAYBOURN late of 21 Bradshaw Street, Wooloowin, Brisbane in the State of Queensland, widow, deceased JUDGMENT - MACKENZIE J. Delivered the 15th day of November, 1991. This is an application under 0. 64 r. 1A by the executors of Louisa Alice Claybourn (deceased) for a determination of the following questions in connection with the true construction of the last will of the testatrix:- "(a) what bank accounts, deposits or moneys pass under the words 'the balance standing to the credit of my said business at any bank or banks' in clause 3 of the said Will; (b) what bank accounts, deposits or moneys held by the deceased at the date of her death pass under the words 'the rest and residue of my estate both real and personal' in clause 4 of the said Will." The will was executed on 1st July, 1988. The testatrix was the proprietress of an oil coat manufacturing business. The business had been established in the early 1930s by her late husband and from August 1965, when he passed away, until her death on the 19th September, 1989, a few days before she turned 90, she maintained personal control over the commercial and financial affairs of the business. At the time of her death she had three surviving children John Claybourn, Edna May Bartlett and Raymond John Claybourn. -- 2 of 21 -- 2 Another son Colin had passed away in about May 1988. He, John Claybourn and Mrs. Bartlett had been involved in the conduct of the business. Raymond Claybourn had pursued a career in the printing industry, and although he gave evidence of some degree of involvement in some facets of the business over the years, I am satisfied that his involvement was not at the same level or to the same extent as that of John Claybourn and Mrs. Bartlett. Mrs. Claybourn appointed John Claybourn and Mrs. Bartlett executors and trustees of her will. The disposition that has resulted in this matter being litigated is in the following paragraph: "3. I BEQUEATH the goodwill of my business as an Oil Coat Manufacturer and all my machinery plant stock-in-trade and effects employed or used in carrying on such business and all debts owing to me in respect of my said business together with the balancestanding to the credit of my said business at any Bank or Banks and the benefit of all Contracts relating to such business BUT subject to all my liabilities in connection with my said business TO ... JOHN CLAYBOURN and EDNA MAY BARTLETT ... in equal shares." The words in lower case that I have underlined are the critical ones for present purposes. By cl. 4, the rest and residue of her real and personal estate was devised and bequeathed to her three surviving children in equal shares. Clause 7 is as follows: "7. I DECLARE that I have excluded my son the said Raymond John Claybourn from any benefit under the provisions of Clause 3 of this my Will as he has never taken an active part in the operation of my said business BUT my children the said John Claybourn and Edna May Bartlett have conducted the business on a full-time basis for many years and the goodwill of such business has been established as a result of their efforts in their conduct of such business." At the time of her death Mrs. Claybourn had a number of accounts and deposits in the name "Louisa Alice Claybourn". -- 3 of 21 -- 3 There were none in the name of Claybourn Oil Skins, a business name registered in 1988. The accounts and deposits may be classified as follows: (a) A cheque account no. 25-0355 at the Westpac Bank Lutwyche. This account had been in existence for many years. (b) Cheque account no. 25-0112 at the Westpac Bank Albion. This was opened in May 1989, about the time the business relocated to Albion from Lutwyche where it had been carried on in the family home. According to Mr. John Claybourn this account was set up to enable contractors to the business to be paid as soon as they had completed their work. This account was largely controlled by Mr. John Claybourn under the direction of his mother. It is not disputed that this account fits the description of cl. 3 of the will. (c) Three interest bearing deposits (numbers 25-0136, 25-1120 and 25-1139) at Westpac Bank Lutwyche. (d) An advantage saver account no. 52-3576 at Westpac Bank Lutwyche. This was established because the bank required an account to be set up to receive the interest from the interest bearing deposits. (e) Two accounts at the Bank of Queensland Savings Bank Limited which were used in connection with certain real estate investments of the testatrix. It is not disputed that these formed part of the residue of her estate to be disposed of under cl. 4. There is no dispute that Mrs. Claybourn was the very antithesis of a modern business person. Her business was very -- 4 of 21 -- 4 successful. She achieved this without resort to common financial arrangements such as borrowing and tax minimisation. Her business was totally ungeared and had considerable liquid assets at all material times. A schedule prepared by Karen O'Brien, a granddaughter of the testatrix, and a bookkeeper (ex. A to her affidavit sworn on the 10th July, 1991) extracts the passage of moneys from the testatrix's account no. 25-0355 at the Westpac Bank Lutwyche ("the current account") into the interest bearing deposits, and the transfer of money back to the current account. It also indicates payments for purchases of cloth and the payment and refund of income tax. The interest earned and the treatment of that interest is also shown. Mrs. 0' Brien also analysed all the transactions on the current account. She prepared a schedule listing 1,837 cheques relating to some 3,000 transactions. The discrepancy between the number of cheques and the number of transactions is accounted for because the sums drawn by some of the cheques were shown as having been disbursed for multiple purposes. For example, wages, drawings, freight and motor vehicle expenses often appear as the ledger allocation of the proceeds of a single cheque, frequently in conjunction with other purposes as well (e.g. postage, printing and stationery, bank charges and cleaning). She also produced a further schedule showing 40 transactions on the account between October 1982 and the testatrix's death, which on Mrs. O'Brien's analysis were the only cheques drawn on the working account which did not appear to relate to the business. The vast majority of these related to payments to Medical -- 5 of 21 -- 5 Benefits, to health related expenditure and to income tax. Apart from the tax payments the other sums amount to less than $7,000.00 in all. However the accuracy of Mrs. 0' Brien' s analysis of the account is subject to qualification. In cross-examination she explained the method by which she complied the dissection and in particular the assumptions that she made in assigning expenses to the category of business expenses. It is correct to describe them as assumptions as they are not based upon her own knowledge and involve a degree of speculation. Therefore what has been said above about the dissection of the accounts represents the high-water mark from the point of view of the executors but cannot be taken to be necessarily accurate. I have referred to real estate investments of the testatrix. Until the business relocated in Albion in early 1989 it was carried on at her home at 21 Bradshaw Street, Lutwyche. That house had been purchased in 1938. Two adjoining houses, 23 and 25 Bradshaw Street and shops at 575 Lutwyche Road had been purchased in 1953, 1965 and 1977 respectively. One of the complications in the matter is that while the proceeds from rental of the three properties were paid into the accounts at the Bank of Queensland, Mrs. Claybourn was in the habit of paying sums for repairs, maintenance and insurance in respect of all properties including the premises upon which the business was carried on from the current account. From July 1982 until her death $28,015.62 had been paid in respect of 21 Bradshaw Street (the business premises), $29,067.70 in respect of the shops, $6,379.93 in respect of 23 Bradshaw Street and -- 6 of 21 -- 6 $11,323.59 in respect of 25 Bradshaw Street. The explanation given for the making of these payments from the current account appears in the following passage from Mr. John Claybourn' s evidence: "You said in your evidence a moment ago that your mother objected to payments of personal expenses from the Westpac cheque account; remember that?-- Well, no, that was more she objected to paying the expenses for the properties from there. Did she speak to you about that or not?-- Yes, she did. She would say to me when I was going to arrange the payment for any repairs that was being done on the properties, she would always give me a cheque for it and she would say then that that should be coming out of the other bank, which of course - and I would say to her, 'Well, mum, you are getting interest on the other one. You are getting nothing from this one.', because Westpac never advised anything about how she could gain interest. Was that system ever changed? Did she take her objection to the stage of saying no expenses with respect to the rental properties were to be paid out of the cheque account? Did she ever say that?-- No, she would object but then she would write the cheque out for me. She wouldn't pursue it. She would just say, 'This should be coming out of that other bank." In addition to those payments Mrs. Claybourn's income tax payments were made from the current account. These returns related to income from the business, from the rental properties and from the I. B. D. and the investment account. According to the returns for the financial year 1 986-7 onwards the rentals amounted to small proportions of the total taxable income in each year. According to the returns for the year ending 30th June, 1987 the Oil Skin business contributed 84 per cent of the taxable income, rental 3 per cent and interest 13 per cent (33 per cent of which was attributable to the accounts into which the rental proceeds were paid). For the year ending 30th June, 1988 the Oil Skin business contributed 67 per cent, rentals 5 per cent and -- 7 of 21 -- 7 interest 28 per cent ( 22 per cent attributable to the rental accounts). of the interest being For the year ending 30th June, 1989 the Oil Skin business contributed 87 per cent, rentals 2 per cent and interest 11 per cent (37 per cent of which was generated by the rental accounts). There was also an income tax refund of about $149,000.00 paid into the account in February 1989. This is not shown on Mrs. O'Brien's chart. This refund became due following a drop in income of the Oil Skin business in the preceding financial year, which is reflected in the low proportion of taxable income contributed by the business for that financial year. In 1986-7 the profit was $368,793.000 and in 1987-8 $124,414.00. An accountant, Mr. Amos, expressed the opinion that having regard to the similarity in the amounts of interest earned in both years and the applicable tax rate was virtually all the result of the drop in income of the Oil Skin business. With respect to the I . B. D. ' s, Mr. Raymond Claybourn' s underlying proposition, in simple terms, was that the testatrix had three business interests, the Oil Skin business, the rental of properties and investment of moneys. The moneys invested in the I.B.D.'s should not be regarded as moneys standing to the credit of the business of Oil Skin manufacturing, but should be regarded as moneys that had become excess working capital of the business which had been put into another separate income earning venture. It followed from this, it was submitted, that the I.B.D.'s did not fall within cl. 3 but fell within cl. 4. So far as the savings investment account was concerned, it was submitted that as it was created to receive the interest from -- 8 of 21 -- 8 the I.B.D.'s it should therefore be treated in the same way as them. It therefore did not fall within cl. 3 either. With respect to the current account it was submitted that because the testatrix had treated it as a general account, not specifically related to transactions of the Oil Skin business, the balance standing to that account at the time of the testatrix's death was not a balance standing to the credit of the Oil Skin business at that time. According to Mr. John Claybourn the decision to invest in I.B.D.'s was made when he and Colin Claybourn suggested to the testatrix that she might place some of the surplus cash from the business from time to time in deposits which bore interest rather than having all her money in the cheque account. She decided to invest $100,000.00 in that way and from time to time after that she deposited surplus moneys in such accounts. Mr. John Claybourn swore that these moneys were funds which came directly from the business and which were utilised in the business if moneys were needed to purchase stock. Mr. Raymond Claybourn was not involved in any decisions about the investment in I.B.D.'s. However he said that his mother said to him early in 1985 that she had decided to put her money into I.B.D.'s rather than buying more real estate because of the better returns from I.B.D.'s and the bother associated with managing rental properties. He also said that he had a conversation with Mr. John Claybourn in early 1989 to the effect that the testatrix had invested $400,000.00 in an I.B.D. for her nursing home costs. He said that soon after that he had had a discussion with his mother about nursing homes. She replied: "I -- 9 of 21 -- 9 am not ready to go yet" but said that she had money put away for that purpose. Mr. John Claybourn denied the conversation attributed to him and also denied that his mother had ever discussed entering a nursing home in his presence. His evidence was that he had attended to matters relating to the rental properties on his mother's behalf. The question for determination is the meaning of the words used by the testatrix. Extrinsic evidence is admissible for the purpose of ascertaining the meaning of the words that the testatrix used where they are ambiguous. Its purpose is to assist the court by providing evidence of the circumstances surrounding the testatrix at the time the will was made, the underlying proposition being that the testatrix may be inferred to have had her own circumstances in mind when using a particular form of expression. Extrinsic evidence is not admissible to contradict what a will unambiguously says. Where the words are unambiguous, evidence suggesting a different actual meaning is generally inadmissible. It is the "expressed intention" that is the critical issue (Perrin v. Morgan, (1943) A.C. 399 at 406 per Lord Simon L . C. ) . But if the words are ambiguous extrinsic evidence is admissible if it is probative of the meaning of the words used by the testatrix (Lutheran Church of Australia v. Farmers' Co-Operative Executors and Trustees Limited (1970) 121 C.L.R. 628 at 648-9, Re Plant (1974) Qd. R. 203 at 204, Re Allen (1988) 1 Qd. R. 1 at 2-3). It was submitted that the onus was on the executors to show that what they claim to be within cl. 3 is fairly and properly -- 10 of 21 -- 10 comprehended by the description which the testatrix has used. (Re Hunter (deceased) (1957) S.A.S.R. 194 at 197, In Re Kidman (deceased) (1953) S.A.S.R. 28 at 31, 33.) It is true that if I remain unpersuaded that by using the phrase "the balance standing to the credit of my said business at any bank or banks" the testatrix intended to include particular accounts, the account or accounts will fall to be distributed in accordance with cl. 4. However the real purpose of the proceedings is to interpret the meaning of the words used according to proper canons of construction and with the assistance of such extrinsic evidence as is admissible to aid the process of construction. It is therefore unhelpful to describe the matter as one where onus of proof is likely to be a critical issue except in relation to acceptance or rejection of the effect of the extrinsic evidence. I turn now to the current account. It was submitted by Mr. O'Regan Q.C. for the executors that the current account was used very extensively for the payment of expenses that were clearly business expenses. He referred to the dissection of the account by Mrs. O'Brien to which I have previously referred. He submitted that the fact that the account was used to pay private expenses and expenses relating to the rental properties and income tax does not establish that the testatrix meant to exclude it from the necessary description. He submitted that the income tax related to income derived for the most part from the business and that the tax refund created by the decline in profits in the financial year 1987-8 which was paid into the current account was on the evidence fairly characterised as a payment which had its source in the business. -- 11 of 21 -- 1 1 I should mention that in addition to the 40 cheques drawn for non-business purposes there was some cross-examination directed towards establishing that the testatrix paid her living expenses from that account as well. That is true in the sense that she included in a number of the cheques an amount for "drawings". I do not regard this as inconsistent in itself with characterisation of the current account as a business account. Those sums were drawn periodically and are in my view capable of being taken to be in the nature of remuneration. So far as the I .B.D. 's are concerned the executors submitted that the movement of moneys from the current account to the I.B.D.'s and back to the current account was an indication that she regarded the balances in the I.B.D.'s as balances standing to the credit of the business. It was submitted that it was artificial to consider the investments in the I .B.D. 's as constituting a third "business" carried on by the testatrix. It was submitted that the testatrix plainly did not consider them to be so. On the other hand the respondent submitted that although the claim in respect of the I. B. D. 's was based on their being sourced in the current account and the history of movement of the moneys represented by some of them to the current account the creation of the I .B.D. 's was a recognition that there was adequate capital to meet the raw material and other expenses of the oil coat business without them. It was submitted that it was absurd to suggest that, in the case of a business trader, assets formed by usage of such excess moneys drawn from the business stamped such assets with the character of moneys standing to the credit of the -- 12 of 21 -- 12 business if they were used to create I.B.D. 's. It was also submitted that I should infer that there was a correlation between the payments back to the current account of moneys from I.B.D. 'sand the payment of personal income tax derived from all of the business activities. The actual usage and treatment of the I. B. D. ' s in the accounts and the taxation returns of the testatrix, it was submitted, put the lie to any suggestion that they fitted the description of moneys standing to the credit of the oil coat business. The current account's balance so far as it appears from Mrs. O'Brien's analysis frequently had a credit of six figure sums. On the occasions that are referred to in her summary sheet, it was rare for it to be less than $200,000.00 in credit and was often substantially more. Due to the lapse of time it cannot be established from bank records that the source of the first three I. B. D. 's was the current account . However, it is not apparent where they emanated from if they did not come from the current account, and in the absence of any other likely source I am satisfied on the balance of probabilities that the moneys placed in the first three I. B. D. 's came from the current account. All of the other I.B.D.'s and the commercial bill (which I will for convenience refer to under the heading of I.B.D.'s) had their origin in the current account. Some of the I.B.D. funds returned to the current account were expended as part of the balance standing to the account from time to time. Others were rolled over, in some cases supplemented by moneys from an account which Mrs. O'Brien identified as an account into which interest from the I.B.D.'s -- 13 of 21 -- 13 was paid. It is convenient to illustrate this diagrammatically. The letter C indicates that the funds were retained in the current account upon their return. An asterisk indicates that the I.B.D. was in existence at the date of the death of the testatrix. The numbers represent the I.B.D.'s in chronological sequence in Mrs. O'Brien's summary. 1 ~ 9 ~ 17 ~ 19) ~ + ) 20 ) 21* C 5 ) + ) 3 ) C ( 10 ($5,000 C 22* ~ 6 ~ 8 ~ 1 1 ~ C ~ 12 ~ 13 ) 7 14 • ( 15 ~ 18* + ) ( 16 ~ C 4 ) • C The respondent's submission that I should infer that there was a correlation between payments back to the current account of moneys from I.B.D.'s and the payment of personal income tax derived from all of the business activities is illustrated by an analysis of the moneys that were actually returned to the current account. Before the proceeds of I.B.D. 1 amounting to $107,359.73 were paid to the current account on the 26th January, 1983 the balance in the current account would without that payment have been insufficient to pay income tax of $187,169.12 paid on the 11th March, 1983. It is true that on the 25th January, 1983 I.B.D. 2 in the sum of $40,000.00 was created from the current account. Whether that was funded by rolling over $40, 000. 00 from -- 14 of 21 -- 14 I.B.D. 1 or from funds in the current account is unclear as it appears out of sequence on Mrs. O'Brien's schedule. In any event it is not of any particular importance to resolve that because the basic fact as to the insufficiency of funds to pay tax with the then existing balance remains true. The same basic argument applies to I.B.D. 7 where $100,000.00 was paid back on the 25th February, 1985 and tax of $230,947.18 was paid on the 21st March, 1985 (although by the time of payment of the tax the credit in the current account would have been sufficient to pay tax). The evidence does not show what caused the increase in the balance in the cheque account or whether there was any reason to expect it to happen. $50,000.00 of the proceeds of I.B.D. 9 was paid back to the current account creating a credit of $134,171.81 on the 20th December, 1985. The balance of I.B.D. 9 was rolled over into I.B.D. 10. On the 6th January, 1986 payment for cloth purchases of $101,827.09 was made. Before I.B.D. 11 amounting to $205,720.55 was paid into the current account on the 19th March, 1986 the balance was insufficient to meet an income tax payment of $198,968.08 paid on the 2nd April, 1986. I.B.D. 16 of $150,000.00 which was paid back to the current account on the 31st May, 1988 created a credit balance of $228,446.55. On the 2nd June, 1988 income tax of $122,139.00 was paid. I.B.D. 17 of $201,693.15 was paid back to the current account on the 17th November, 1987 creating a credit balance of $406,749.75. From the 3rd December, 1987 to the 12th January, -- 15 of 21 -- 15 1988 purchases of cloth amounting to $249,394.44 were made and a further purchase for $149,596.81 was made on the 11 th February, 1988. Thus four of the six repayments of I. B. D. 's to the current account were followed relatively closely by substantial payments of income tax not insignificant proportions of which did not relate to the Oil Skin business and the remaining two payments were followed relatively closely by substantial purchases of cloth for the business. It is apparent from the analysis of the current account and the I.B.D. 's that it is probable that the wide majority of transactions in the current account were related to the Oil Skin business although as Mrs. O'Brien conceded in cross-examination the analysis of it was not completely accurate and some private expenditure may have been treated therein as business related. However there was also an intermingling of other transactions as well. Payments of repairs and outgoings in respect of the real estate investments were made from the account notwithstanding the creation of accounts into which the real estate income was paid. The explanation given by Mr. John Claybourn of this has been set out above but nonetheless, notwithstanding the testatrix's apparent appreciation of the distinction between the two sets of accounts such outgoings were still paid from the current account. In addition, income tax was paid from the account. The tax liability so discharged derived from several sources of income of the testatrix. It is true that the Oil Skin business contributed by far the largest share of income but in the three financial years analysed earlier the real estate income and interest thereon amounted to -- 16 of 21 -- 16 about one-fourteenth, one-ninth and one-sixteenth of the total income respectively. If as the respondent submits all interest, and not just that derived from real estate income, should be treated as separate from the Oil Skin business the proportions are approximately one-sixth, one-third and two-fifteenths. Even on the former analysis which in my opinion is more realistic, the proportions are not so insignificant as to be characterised as trivial. Therefore in this factual context it must be decided whether the sums in the current account and the I.B.D. 's fall within the description of "the balance standing to the credit" of the Oil Skin business at the time of the death of the testatrix. Having regard to the way in which the testatrix had carried on her business affairs, which would have been apparent and quite easily ascertained at the time when the will was prepared, the wording of the critical clause is unfortunately obscure. As the current account was conducted, it was used mainly for the conduct of the business but also for other purposes unrelated thereto. The account was in her own name not that of the business at the time of her death although that, of itself would not necessarily have been critical had the other complications not existed. In addition, by the time of her death, a further account in her name, used only for business purposes, had been created. Counsel referred to a number of authorities, but as is often the case in this area, authorities which turn on their own particular facts are of little illumination. I shall only refer to two in any detail. In the West Australian Trustee Executor & Agency Company Limited v. Evans 39 W.A.L.R. 85 the testatrix -- 17 of 21 -- 17 had carried on business as R. Evans & Co. There was a provision in her will for the disposition of her "business of financier carried on under the name of R. Evans & Co., including furniture, book debts, goodwill and other assets of such business". There was no reference in the will to moneys in the bank. There were certain moneys held in a bank in her own name and the headnote indicates that these were used partly for business purposes and partly for personal purposes, although this is not stated in the judgment of Dwyer J. Dwyer J. held that the moneys did not fall within the disposition of the business. To the extent that the use for more than one purpose is dealt with in the judgment it supports the view that when assets of a business are spoken of they cannot be extended to cover more than assets which are being actually employed in the business referred to. He went on to say that it was difficult to see how moneys kept in her own name at her bankers in an account which was used for other than business purposes could be regarded as an asset of the business mentioned. In Re O'Shea (1953) V.L.R. 43 Barry J. was concerned with a will which disposed of "all moneys ... which shall then belong •.. to me ... for the said business''. The first observation to be made is that the case is authority for the proposition that "moneys" is capable of including fixed deposits (cf. Re Nicholas (1923) V.L.R. 461; Re Albert (1940) V.L.R. 353). The second is that where moneys on fixed deposit were security for an account to which advances were made and which the testator used for business purposes it was held that the moneys on fixed deposit were moneys which belonged to him for the business. The judgment of Barry J. tantalisingly refers to the other account as being -- 18 of 21 -- 18 "predominantly the testator's business account" but without elaborating as to the nature and extent of any other use of it. It does not seem to have been in issue that that account passed under the disposition. The cases are not definitive as the issue in each case was to determine the meaning of the words that were used in the particular case. Neither the words used in the will in the two cases nor the facts are identical with the present case. If anything, the second has more affinity with it by reason of the reference to moneys belonging to the testator for the business. But even so, the factual differences mean that it is not a clear guide to the meaning of cl. 3 as expressed by the testatrix. I should mention that Mr. Norbert Calabro gave evidence as to the way in which an accountant would analyse the various accounts. He concluded from that viewpoint that only the cheque account at the Albion Branch of Westpac fitted the description in cl. 3. However, such evidence does not assist me in determining what the testatrix meant in using the words in question. There is nothing to suggest that she had accounting concepts in mind when she used the words. Applying the principles that I have set out above, it is my opinion that notwithstanding that the testatrix merged into the current account certain transactions that should not have been conducted through it if it were a business account in accounting terms, such as the payment of income tax and the payment .of expenses in connection with the rental properties, the better view is that she intended to convey that the balance standing to the credit of the current account fitted the description in -- 19 of 21 -- 19 cl. 3. I therefore hold that the current account is one of the bank accounts which pass under cl. 3 of the will. So far as the I.B.D.'s are concerned, I am not prepared to treat them as a separate facet of the testatrix' s business activities. In my opinion they should be treated as moneys of the business which, being surplus for the time being, have been invested in I.B.D.'s until such time as they were needed for the purposes of the business. Once again I am cognisant of the fact that some of the proceeds of the I.B.D.'s have apparently been used for payment of income tax unrelated to the business but while the proportion is not insignificant, it is, except in the year when the income from the Oil Skin business was very much reduced, a relatively small proportion. In my opinion the I. B. o. 's also conform to the description in cl. 3 and passed thereunder. As to the savings accounts into which the interest from the I.B.D.'s was paid when the bank required another account to be set up for that purpose they should be viewed as incidental to the I.B.O.'s and should be dealt with in a similar manner as them. In the result, the answers to the questions asked should be: (a) (i) Cheque account no. 25-0355 at the Westpac Bank Lutwyche. (ii) (iii) Cheque account no. 25-0112 at the Westpac Bank Albion. Three interest bearing deposits numbers 25-0136, 25-1120 and 25-1139 at the Westpac Bank Lutwyche. -- 20 of 21 -- 20 (iv) An advantage saver account no. 52-2576 at the Westpac Bank Lutwyche. (b) (i) Two accounts at the Bank of Queensland Savings Bank Limited which were used in connection with real estate investments of t~e testatrix. The costs including reserved costs of the executors and the respondent should be paid out of the estate. I certify for senior counsel on both sides. -- 21 of 21 --