Congregational Union of New South Wales v Thistlethwayte

[1952] HCA 48

Refd to

Dised

Daretpn Local

Sydney

Aboriiginal .

Launceston LauncestonLandVouncil

Lemey 75

V iVentyvoiih

aSr122Tunî r(1959)

Council 89

102CLR188

LGERA 120

87 C.L.R.] OP AUSTRALIA.

375

[H IG H COURT OF AUSTRALIA.]

CONGREGATIONAL UNION OF NEW SOUTH'

W A L E S ...................................................... _A p p e l l a n t

;

D e f e n d a n t ,

V.

THISTLETHWAYTE AND OTHERS

R e s p o n d e n t s .

P l a i n t i f f s a n d

D e f e n d a n t s ,

BURCHMORE AND ANOTHER

A p p e l l a n t s ;

D e f e n d a n t s ,

V.

THISTLETHWAYTE AND OTHERS

R e s p o n d e n t s .

P l a i n t i f f s a n d

D e f e n d a n t s ,

ON A PPEA L FROM T H E SUPREM E COURT OF

N EW SOUTH W ALES.

Charity— Will—Gift—Churches— Objects and pur2wses

—Hospital— Homoeopathic

H. C. OF A.

treatment— Gratuitous aid to destitute persons— Existence of hospital— Validity

1952.

of gifts— Vesting— '’’ Last surviving relative or beneficiary’’— Rule against

perpetuities.

S y d n e y ,

March 27, 28,

A te s ta to r by his will directed his trustees to hold his estate upon tru s t for his wife during her life. Upon her death, they were directed by the will

31;

A pril 1-3 ;

to pay out of income certain expenses, rem uneration and annuities, and

Aug. 29.

certain pensions to relatives and others, and th a t as to the balance of the

Dixon C.J.,

said income until such tim e as the distribution of the final balance of income

McTieniaii, Williains,

from the estate should come into force as thereinafter provided, the trustees

Fnllagar and

E it to

.LI.

should either expend such balance of income in effecting im provements to certain lands forming part of the estate, or invest it for the general purposes of the will, as they in their discretion should th ink fit. Upon the death

376 HIGH COURT

[1952.

H.C. ov A.of the last surviving relative or other beneficiary the trustees were to

1952.d istribute tlie linal available balance of income annually by paying certain annual sums to named charities and as to the residue of the said

C O N G H K O A -

T IO N A Lbalance of income they were directed to divide it into three parts, and U n i o n (o ])ay one-third to the Sydney Hom oeopathic Hospital, one-third to

OK Niow the Now Church or Swedenborgian Society of Sydney to be appUed by it

Sovi'm

W 'AUCS

for certain juirposes thereinafter appearing, and one-third to the Congrega­

V.tional Ihiion of Now South Wales.

T m . S T L l i T I t -

W A Y T E .Held, (I) th a t althougli the only gift was in the direction to distribute ■in Jut,lira, yet, as the distribution was postponed for the convenience of the fund or proiierty, the vesting was not deferred until the period of distribution ; th a t the death of the last surviving relative or other beneficiary was a dies certus ; and th a t as the direction to distribute upon th a t dies certus was not dependent upon the fulfilment of any condition peculiar to the beneficiaries, the gifts to the three charities above nam ed vested in interest on the death of the testa tor, and thus did not infringe the modern rule against perpetuities.

Browne v. Moody, (1936) A.C. 635 apjilied.

(2) The gifts of pensions to certain of the relatives and others..were void,

being expressed to be given to persons who might not be born or ascertained

w ithin the period allowed by the modern rule against perpetuities.

(3) The direction to distribute the final available balance of income upon the death of the “ last surviving relative or beneficiary ” referred to the death of the last surviving relative or o ther beneficiary who could legally participate under the will, and did not have reference to the death of the last survivor of the persons whom the te s ta to r had intended to benefit. Accordingly, the gifts of the final available balance of income would vest in the ultim ate beneficiaries upon the death of the last survivor of a num ber o f persons alive a t the death of the te sta to r and therefore -wnthin the period allowed by the rule against perpetuities, even if they did not vest on the death of the testator. The objects of the Congregational Union included, inter alia, “ (3) United action for the creation, m aintenance and im provement of our educational, religious, and philanthropic agencies. (4) The preservation of civil and religious liberty ” .

Held, th a t a body m ay be charitable even though some of its incidental and ancillary objects, considered independently, are non-charitable ; th a t the main object of the Union was the advancem ent of religion and th a t it could carry out the other objects only to the extent th a t they were conducive, to the achievement of the main purpose ; hence the gifts to the Congregational Union were vahd charitable gifts.

I t was directed by the will th a t the share of the final available balance of income to be paid to the New Church or Swedenborgian Society was to be applied by it, as to forty per centum “ for Church pinposes ”, and as to the rem ainder “ for establishing lending libraries ” in certain country towns. The memorandum of association of the New Church set out four objects, all religious objects, the fourth being “ to circulate the theological works of

87 C.L.R.] OF AUSTRALIA.

377

Em antiel Swedenborg, and such other writings as advance th e life and

H . C. OF A.

doctrines of the Lord’s New Church ; and otherwise to assist as far as possible,

1952.

in dissem inating th e hfe and heavenly doctrines of th e New Jerusalem

COJTGREGA-

H eld, th a t the direction to apply the forty per centum of the gift for Church

TIONAL

purposes m ust relate to th e objects set out in the m em orandum of association, Union

OF N ew-

which were religious charitable objects ; th a t the power to expend the South

rem ainder in establishing lending libraries m ust relate to establishing lending

W ales

V. , --

hbraries of th e k ind the institu tion could lawfully estabhsh, having regard

T h is t l e t h -

to the term s of the fourth object, and th a t as there was some evidence th a t

W’AYTE.

th e works of Em anuel Swedenborg were religious works, the gift of the six ty per centum , as well as the gift of the forty per centum, was a valid charitable gift.

A fter directing paym ent of one-third of the residue of the final available balance of income to the Sydney Hom oeopathic Hospital, the tes ta to r directed th a t in case there should be no such hospital estabhshed in Sydney or its suburbs a t the tim e, the trustees should pay the same to a committee which should be appointed or approved by the Committee of the Congregational Union to be apphed to th e founding or m aintenance of such a hospital. The declared object of the Sydney Homoeopathic H ospital was to afford gratuitous medical and surgical aid under th e homoeopathic system to sick persons in destitu te circumstances and to others on such term s of paym ent as should from tim e to tim e be determ ined by the board. Homoeopathic trea tm en t had ceased to be given a t the hospital because in recent years, no homoeopathic practitioners had sought to have patients adm itted. However, it was not established th a t the system had completely or finally disappeared.

Held, th a t the institu tion as it existed a t the date of the summons was still the same institu tion as th a t nam ed in the w ill; th a t although a gift, to be valid as a charitable gift, m ust be beneficial to the public, hospitals are prim a facie charitable institutions, and as there was no evidence th a t the practice of hom oeopathy m ay not be of benefit to the public, the gift to the vSydney Hom oeopathic H ospital was a valid charitable gift.

Held, also the gifts of the shares in the residue of the final available balance of income were unlim ited in point of tim e, the will contained indications th a t the beneficiaries should not take the corpus, and th a t the funds should rem ain in the hands of the trustees of the w ill; th a t the rule th a t an unlim ited gift of income is a gift of the capital from which the income is derived applied equally to a gift to a charity ; bu t [Kitto J . dissenting), th a t it is apphed as a rule of construction which m ust yield to the expression of a contrary intention, which is to be found in the will of the testator.

Per Kitto J . : A g ift of the income of tru s t property in perpetuity is a gift of corpus and cannot be reduced to a gift of something less than corpus by any manife.station of intention.

In the Will of Wright (1917) V.L.R. 127, disapproved. _ Decision of the Sujrrcme Court of New South Wales {Roper C.J. in Eq.)

in part aflSrmed, in p art reversed.

378 HIGH COURT

[1952.

H. C. OF A.

Ari’KAi. Irom the iSupi'enie Court of New South Wales.

lilfn’. CoNfiKKOA-

William Moore, late of Lawson, New South Wales, homoeo­ pathic practitioner, made his last will on 2(ith September 1910,

TIONAL

probate whei'cof was ^ranted by the Supreme Court of New South

r.NllON

OF NlCW Wales to (diristopher Howes Thistletliwayte, t\hlliam Lyle Patison

South (who died on 7th Novemlwr 1919), and Nicholas John Cocks (who

W ai.es

V.died on 2()th January 1925), named in the will as executors thereof

T h ist l e t h -

and trustees oi' the estate.

WAYTE.

So fai- as is material to this report the testator gave devised and liequeathed to his wife, Fanny Eliza Moore, (a) all his right title and interest in a certain bill of sale and stock mortgage and two specified mortgages for her absolute use and benefit; and (b) for and during the term of her natural life all the residue of his real and personal estate. Subject thereto the testator made certain monetary provisions for his sisters Elizabeth Bone and Famry Williams and his sister-in-law Alice Moore, who respectively died on 13th August 1911, 6th February 1916 and 11th August 1922. He devised all his real and personal e,state of or to which he was or became possessed or entitled to his trustees upon the trusts thereinafter contained but not to take effect till after the death of his wife. Then he directed his trustees to sell and convert into money his vacant lands except his land comprised in his Gordon estate and with the proceeds thereof build suitable residences for orchardists on his Gordon estate or purchase land adjoining that estate or in their discretion to apply those proceeds or any part thereof to the funds of his estate. He empowered his trustees to let or to sell the whole or any part or parts of his other real e.state. He gave comprehensive and detailed directions for the leasing of his Gordon estate either for the purposes of farming or cultivatioii thereof or for residential purposes, the term of each lease to be ninety-nine jmars. He directed his trustees as soon as was con- Y’enient after the death of his wife should she survive him to invest the sum of £1,000 sterling in government securities to be held by them as an assurance or safety fund and that the income arising therefrom together with all the other income and proceeds arising from his estate or from any investment thereof should be paid into a general accoimt in a specified banli. He directed that from and out of such income or fund should be paid firstly, all expenses and outgoings connected with the working and managing of his estate and carrying into effect and carrying out the trusts ol his will; secondly and thirdly, the remuneration thereinbefore pro­ vided for the manager of his estate, and his trustees, and to the

87 C.L.R.] OF AUSTRALIA.

379

Congregational Union of New South Wales as thereinafter pro­

H. C. OF A.

vided ; fourthly, fifthly and sixthly, the monetary provision made

1952.

for the said Elizabeth Bone, Fanny Williams and Alice Moore ;

Cong reg a­

seventhly, the annual contributions thereinafter provided to be tio nal

U n io n paid to certain charitable and religious institutions and organiza­

OF N ew

tions ; eighthly, the payments thereinafter conditionally provided

S outh W ales

to be made to certain of his own and his wife’s relations and others

V.

named and described. He directed his trustees to pay to such

T h is t l e t h -

W A Y T B .

relations and others in the order and manner thereinafter mentioned and so far as the income arising from his estate would permit, first to any such relatives or others who should be blind or crippled or who in the opinion of his trustees were in need of help, no matter what age such persons might have attained to each such person such amount as his trustees should in their discretion deem needful but not less than seven shillings nor more than twenty shillings per week during such time as in the opinion of his trustees such sum should be paid even to the natural extent of the lives of such persons provided that to any such person who should have attained the age of sixty years the payment should not be less than twelve shillings per week ; secondly, to any of such relatives who were spinsters and who had attained the age of sixty years and were without sufficient means of support the sum of twenty shillings per week for and during the term of their natural lives ; thirdly, to any such relatives or other males or females who had attained the age of sixty years and who were unable and had not sufficient means to support themselves the sum of twenty shillings per week for and during the term of their natural lives. He directed that in the case of a male leaving a widow him surviving and who was married to him before he received or commenced to receive any aid under the trusts of the will his trustees should pay to such widow, if she had not sufficient means to support herself and if she should have attained the age of sixty years the sum of twenty shillings per week for and during the term of her natural life. He directed that in case of the marriage of any spinster or widow the subject of any of the trusts of the will the provisions therein for her benefit should immediately cease and be suspended daring such marriage.

Ninthly, he directed that as to the balance of the income, until such time as the distribution of the final balance of income from his estate should come into force as thereinafter provided his trustees should expend any part or the whole of such balance of income from year to year in improving and developing his Gordon estate or they might in their discretion invest for the general

380 HIGH COURT

[1952.

H. C. OF A.

purposes of the will sucli balance of income or any part thereof

1952. C O N G K E Q A -

from year to year instead of so expending the same. He

em])owered and authorized his trustees to make special provision

T I O N A L

U n io n by earmarking a certain portion of his estate or the income thereof

OF N ew or otherwise for the payment of the conditional aid and support

W alespayable under the eighth direction and authorized his trustees, S outh

V.having made such provision, to distribute the final balance of

T iiis t l e t h -income of liis estate exclusive of such provision annually as therein­ W A Y T E .

after provided. He directed that if at any time subsequent to the making of such special provision it should be found that the same was inadequate for such purposes his trustees should then and for so long as they might think tit or find necessary suspend the distribution of the whole or any part of the final balance and should apply such suspended part to those purposes. He author­ ized his trustees, if they should find the special provision to be in excess of requirements, to release the excess for so long as they in their discretion might think fit and to apply it to the trusts of the will. He directed that immediately upon the death of the “ last surviving relative or other beneficiary ” the balance of any such special provision should be applied to the remaining trusts of his mil. He directed that on the happening of the aforesaid events his trustees should distribute the final available balance of income of his estate annually by paying to each of the charitable and religious institutions thereinafter named a sum equal to double the amounts provided to be paid to them on the death of his wife ; and as to the residue of the balance of income he directed his trustees to divide it into three equal parts and to pay to the Sydney Homoeopathic Hospital one-third and in case there should . be no such hospital established in Sydney or its suburbs at such time to pay the same to a committee which should be appointed or approved by the committee of the Congregational Union of ISlew South Wales to be applied to the founding or maintenance of such a hospital; to pay a further one-third to the Congre­ gational Union of New South Wales and the remaining one-third to the New Church or Swedenborgian Society of Sydney. He directed the New Church or Swedenborgian Society of New South Wales to apply forty pounds per centum of that one-third for church purposes and the remaining sixty pounds per centum for establishing lending libraries in such country towns as had news­ papers established thereat and as his trustees should approve. He directed that such libraries should be under the direction and management of a paid secretary officer or agent and that his trustees should have the right to cause an inspection of the books or records

87 C.L.R.] OF AUSTRALIA.

381

and accounts of the New Church or Swedenborgian Society with

H. C. OF A.

1952.

respect to such use of that one-third.

He directed and authorized

the committee for the time being of the Congregational Union of

Congrega­

New South Wales to appoint within six. calendar months after his tio n a l

U n io n death a fit person or persons to supply the vacancy or vacancies

OF N ew

S outh W a les

caused by death, refusal, incapacity, unfitness or absence of any

person to act or continue to act as trustee. He directed that the

V.

Congregational Union of New South Wales should annually appoint

T h is t l e t h -

W A Y T B .

a professional auditor to make an annual inspection of the accounts connected with the estate and should receive a report from the auditor so appointed. He directed his trustees to pay over to the committee of the said Union five per centum of the net proceeds of the income from the estate to be applied by the committee for the benefit of the Congregational Union of New South Wales in such manner as the committee should deem proper, and he declared that neither the committee nor the Union should be in any wise responsible for any money or loss of any kind or charges in con­ nection with his will or estate. He directed and empowered his trustees on the death of his wife to pay over annuities to “ the following charitable and religious institutions and organizations, namely, to the Sydney City Mission the sum of ten pounds per annum ; to the Female Mission Home, Glebe, the sum of five pounds per annum ; to the Sydney Industrial Blind Institution, Sydney, the sum of two pounds per annum ; to the Deaf and Dumb and Blind Institution, Sydney, the sum of three pounds per annum ; to the Animals Protection Society of Sydney the sum of two pounds per annum ; to the New South Wales Bush Missionary Society the sum of five pounds per annum ; to Dr. Barnardo’s Homes, London, England, the sum of one pound per annum ; and to the London Missionary Society (N.S.W.) Auxiliary the sum of five pounds per annum ”, and he directed that if any of the charitable or religious institutions or societies taking benefit under his will was dissolved, wound-up or passed out of existence the legacy, devise, annuity, bequest or payment directed to be made or paid under the wall to such institution or society should thereupon cease and it should be applied to the remaining trusts of the wall. He declared that his owai and his wdfe's relations and others to benefit under the trusts of his wall as eighthly conditionally ])rovided were the sons and daughters of his four sisters Elizabeth Bone, Eleanor Hopkins deceased, Sarah Law’s Crowe deceased, and Frances Laws (Fanny) Williams ; Amy Taylor daughter of Edward Henry Taylor ; Susan Vane (formerly Burchmore), George Burchmore ; the sons and daughters of Susannah Moore Thistlethwayte (formerly Bone) ;

382 HIGH COURT

[1952.

H . C. OF A. Oscar Ostlund ; and Georgie Hudson wife of H. Hudson. He

J9r>:>.directed that the provisions made for his sister Fanny (Frances ("ONORJDGA-Laws) Williams he increased from fifteen shillings to the sum of

TIONAL

twenty shillings per week, and fie declared and directed that in the

U jsiion

OF i^KW event of litigation as to the construction of his will v/herehy it

80UTU might he field that the devi.ses and directions therein were void

W aiacs

V.for any cause whatsoever and whereliy it would be held he had

T h is t l e t ii-tiled intestate as to tlie whole or any part or parts of his estate he

w a y t e .on such events happening gave devised and bequeathed the whole

of his real and jiersonal estate to his wife for her own absolute use and beneht or upon such trusts and to and for and in such manner as she should by any deed or will at any time thereafter direct or appoint and that on the happening of such events his wife should be the sole trustee and executrix of his will and he thereupon appointed her as such.

The executors of the testator’s will proceeded by originating summons in the Supreme Court of New South Wales for the determination of questions arising out of the Vvdlh

They joined as defendants the Sydney City Mission ; the Sydney Industrial Blind Institution ; New South AVales Institution for the Deaf and Dumb and the Blind ; Royal Society for the Prevention of Cruelty to Animals, New South Wmles ; the Bush Missionary Society Ltd. ; Dr. Barnardo’s Homes; National Incorporated Association and Harold Ernest Rowland ; Ada Macleay Booty, Evelyn Jane Whlliams and Emily Margaret Williams ; the Sydney Homoeopathic Hospital; George Henry Baring Deck ; the Con­ gregational LTnion of New South W ales; the Sydney Society of the New Church; Herbert Moore Whlliams; John Thomas Burchmore and Alexander John Ingram ; and His Majesty’s Attorney-General in and for the State of New South 'Wales,

Christopher Bowes Thistlethwayte, the managing trustee of the tw'o estates the subject of the trusts created by the wills of the testator and his vdfe respectively, deposed by affidavit made on 23rd May 1950 that the testator’s wife, Fanny Eliza Moore, hereinafter referred to as the testatrix, died on 5th October 1914 leaving a will dated 26th September 1910, and two codicils thereto dated respectively 7th and 8th September 1914, probate whereof was granted to the deponent, the sole executor named in the said will and codicils, on 26th October 1914.

In her will the testatrix stated that she had read her husband’s will of the same date, and, inter alia, revoked all her former wills and testamentary writings, and gave devised and bequeathed to her husband, William Moore, all her real and personal estate for

87 C.L.R.] OF AUSTRALIA.

383

his o\\*n absolute use and benefit but she directed that in the case

H. C. OF A.

of her husband predeceasing her her trustees should from and

1952.

after her decease stand possessed of all the moneys, stocks, funds,

COXGBEGA-

TIOXAL U n io n

securities and property representing or constituting her real and

personal estate or the proceeds of the sale calling in or conversion OF X e W

thereof and of the income and annual proceeds thereof upon the

W ales

V.

same trusts with the same powers of conversion and realization

T h ist l e t h -

thereof and to stand possessed thereof and the income therefrom

WAA’TE.

upon the like trusts and with and under the like powers and pro­ visions as were declared and contained concerning the trust estate of her husband so far as they could be made applicable to her estate.

In the codicil dated 7th September 1914, the testatrix referred to the fact that her husband had predeceased her, included in a schedule certain real and personal estate iieing her Lawson and Gordon properties ; all her moneys being deposits, fixed deposits, and current account credits with or in any bank or banks together with accrued interest thereon; all accrued revenues from all sources due to her up to the date of her death ; and all loans of a less value than £250 each due to lier under any mortgage or aguee- ment whatsoever, and directed that out of the realized proceeds of part of her estate represented in the schedule there should firstly be paid all her just debts funeral and testamentary expenses including probate duty on the whole of her real and personal estate and from and out of the balance of such realized proceeds she directed that the sum of £100 be paid to each of the surviving relatives of her husliand and of herself who were the subjects of certain benefits under her husband's will and who were described therein. She gave devised and becpieathed the residue of such part of her estate, to her nephew Christopher Bowes Thistlethwayte whom, in her second ccdicil, she appointed the sole tru.stee and executor of her v>ill. She directed that the remainder of her real and personal estate being all her estate except such part as was comprised in the said schedule should be transferred to the trustees of her husband’s will and held by them on the trusts set out in the respective wills of herself and her husband.

The deponent Thistlethwayte further deposed that the residuary estate of tlie testatrix comprised real and personal e.state of a total value of £11,332 15s. Od. made up as follows : real estate £1,375; Giovernment stock and debentures £5,000; bank fixed deposits and accrued interest £2,664 16s. 8d. ; loans on securities £2,157 8s. lOd. ; and cash £134 19s. 6d. which as executor of the will and codicils of the testatrix he duly transferred to the. then

384 HIGH COURT

[1952.

H. C. OF A.

trustees of tJie testator’s will to be held by them on the trusts

1952. CONGKFII .V-betw(;(ui the testator a.ml the testatrix. Roth the parents of the

set out in that will. Thei'o were not any diildron of the marriage

TION.ALtestator ])redee.eased him having had issue of their marriage nine

Union

cliildren of whom only .Elizabeth Moore and Fanny Laws Moore

O F

N i o w

South survived the testator. Roth those named children married and

W alks

had issue. Of the other seven children one was the testator, one

V.

T h is t l e t h -

died unmanh'd, two, namely, Eleanor Moore and Sarah Laws

W A Y T E .

Moore, married and died leaving issue, and three died having married but not having issue. Elizabeth Moore died on 30th August 1914 leaving a wall ])robate whereof w'as granted to Miarus James Moore Rone, the executor named therein, on 2nd November 1914. The maiden name of the testatrix was Fanny Eliza Taylor. She Avas thought to have been born at Mhrcester, England, on 15th November 1842 or 1843 but records of her birth could not be discovered. According to family repute the testatrix arrived in Sydney from England on 4th January 1855 in the care of her aunt, Elizabeth Taylor. She had at that time two other aunts, Eliza Taylor and Emma Taylor, and an uncle, William Taylor. The uncle predeceased the testatrix and having married left issue of at least one child, Edw^ard Henry Taylor, who having arrived at Sydney in or about 1848, survived the testatrix and died on 14th November 1915, probate of his wall being duly granted to his wife Rachel Taylor and his daughter Amy Elizabeth Taylor, the executrices therein named. The said Elizabeth Taylor and Eliza Taylor both predeceased the testatrix neither having married. The said Emma Taylor married William Rurchmore at Sydney on 5th August 1852 and died at Sydney on 26th August 1872, leaving issue seven children, namely, William Rurchmore who died on 14th July 1946 ; Annie Rurchmore who died in or about 1933 ; Susan Rurchmore who died on 2nd January 1934 ; Thomas Rurchmore wdio died in or about 1926; and George Burchmore who died on 9th September 1920 and probate of whose will w'as granted to Alice Maud Mary Burchmore on 22ud November 1920. She died on 13th July 1949 and probate of her will ŵ as granted to John Thomas Rurchmore and Alexander John Ingram.

The deponent further deposed to the effect that the material facts relating to the ])ersons eighthly entitled to the payments conditionallv provided to be made by the testator in his will to certain of his owai and his wife’s relations and others therehi named and descril)ed were : Elizabeth Rone mentioned in the will wa.s identical wdth the Elizabeth Moore mentioned above. She died on 30th August 1914, having married John Rone on 28th March

87 C.L.R.] OF AUSTRALIA.

385

1846 and leaving issue of that marriage eleven c-hildren. Nine

H. C. OF A.

of them, including Susannah Moore Bonfe, died during the period

1952.

1918-1944, and only two, namely, Jane Elizabeth Moore Bone

Cong reg a­

and Miarus Janies Moore Bone were alive at the date of the tio n a l

U n io n affidavit. Eleanor Hojikins mentioned in the will was identical

OF N ew

South W a les

with the Eleanor Moore mentioned above. She died on 25th

December 1899, having married Henry Hopkins on 8th December

V.

1859 and leaving issue of that marriage five children all of whom

T h is t l e t h ­

died during the period 1915-1945, the widow' of one such child

w a y t e .

being alive at the date of the affidavit. Sarah Laws Crowe men­ tioned in the will w'as identical with the Sarah Laws Moore mentioned above. She died on 5th September 1891, having married William Crowe on 16th October 1873, and leaving issue of that marriage three children all of whom died during the period 1921-1948, the widoAV of one such child being alive at the date of the affidavit. Fanny Laws Williams mentioned in the will was identical with the Fanny Laws Moore mentioned above. She died on 6th February 1916, having married James Williams on 16th December 1863, and leaving issue of that marriage eight children. Of that issue four children died during the period 1939-1950, one of them leaving a wddow, namely Emily Elizabeth Williams who was alive at the date of the affidavit; and four children, namely, Ernest Albert IVilliams (and his wife Evelyn Jane Williams), Herbert Moore Williams (and his wife), Ada Macleay Williams (and her husband Victor James Booty) and James Moore Williams (and his wdfe Emily Margaret Williams) who together with their respective spouses were alive at the date of the affidavit. Amy Taylor mentioned in the will also was alive at that date. Susan Vane and George Burchmore nrentioned in the will were recognized by the deponent and his relatives as cousins of the testatrix. They died on 29th September 1934 and 9th September 1920 respectively. The widow of George Burchmore died on 13th July 1949. Susannah Moore Thistlethwayte mentioned in the will was identical 'with the Susannah Moore Bone mentioned above. She died on 2nd February 1923, having married Felix Knowsley Thistlethwayte on 13th August 1868, and leaving issue four children—including the deponent—one of whom died in 1946, and three of them, together with the respective wife of each of two of them, were alive at the date of the affidavit. Oscar Ostlund and Georgie Hudson mentioned in the will died in 1925 and 1926 respectively. Doubt was expressed as to the relationship of either of them to the testator or to the testatrix.

VOL. LXXXVII.-

386 HIGH COUHT

[1952.

ir. c. OF A.The de})oneiit furtlier deposed tdiat uj)on tlie death of the testa­ trix on 5th OetolxM' 19 Id there were of tlie persons eighthly entitled

C o N ( ! l t K ( I A - iindiM' llie testat’-or’s will to the conditional payments therein TI ONAI .

[>rovid(‘d fonr pimsons who then satisfied the prescribed conditions

I' iN'ION

OK N H\V and who were then entitled to receive those payments. All were

S O K ’I'Kchildr(>n of hllixaheth Hone, namely, Susannah

Moore Bone, Eleanor

W a k h s

V.Moore Bone, Raisbra Bone and Mary Ann Moore Bone, and there

T m s T u c T i r -were in ai hi it ion forty-five persons in existence and capable of being WA VTH.

identified who migiit at some future date comply with the con­ ditions and bec-ome entitled to such payments. In addition to those ])ersons there were three possiiile wives of three male relatives w'ho at tliat time were bachelors making a total of fifty-two persons identifable and unidentifiable who might possibly become entitled to the said payments. Of the said forty-nine persons, thirteen persons were wives of male relatives whose rights to those pay­ ments were respiectively contingent upon their surviving their respective husbands so that not at any time could there have been more than thirty-six persons entitled to such payments at any one time. At the date of the affidavit there were nine persons actually receiving such payments, four persons who might in the future become entitled to such payments, and in addition there was a possibility of five widows of male relatives by future or existing marriages who might become so entitled, but not at any time could the number of persons so entitled exceed thirteen. As the maximum amount to which any of the persons eighthly entitled was £1 per week the liability of the estate for those payments could not exceed the sum of £676 per annum. A schedule setting forth upon an annual basis the particulars relating to the persons and institutions entitled to weekly payments under the v/ill includ­ ing those entitled to the conditional aid and support eighthly directed to be paid, was annexed to the affidavit.

The deponent further deposed that the Gordon estate mentioned in the will comprised about 843 acres and was valued for probate purposes at £16,453 15s. Od. For the same purposes his other real estate was valued at £7,586, and his personal estate at £2,725 Os. lid . The disbursements including the payment of estate duty, testamentary and funeral expenses, debts due by the testator and payments of specific legacies, left a balance capital value of the assets of the estate of .£24,512 14s. 6d. At the date of the death of the testator the income which w’as then payable to the testatrix for her life would have been sufficient to provide for any claims by annuitants who could then have qualified had the testatrix died. His estate was supplemented in 1915 by the

87 C.L.R.] OF AUSTRALIA.

387

transfer to the trustees of the residuary estate of the testatrix.

H. C. OF A.

The net income from the trust property from 5th October 1914

1952.

to 3()th June 1915 was £246 4s. Od., of whicli the sum of £161 14s. Od.

Cong reg a­

was paid to the beneficiaries eighthly entitled. The amounts for tio nal

Un io n the year ended 30th June 1916 were £461 13s. 2d. and £253 11s. 6d.

OF New

respectively. In subsequent years the amount paid to the said iSoUTH

1\"ales

annuitants increased to an amoiint of £718 15s. 4d. which was

V.

paid in the financial year 1929-1930, and over that period expenses

T h is t l e t h ­

also increased with the result that in the financial year 1931-1932

w a y t e .

there was insufficient income to meet the total outgoings including the payments to the said annuitants. In the financial year 1933­ 1934 and up to and inclusive of the financial year 1944-1945, under an order of the Supreme Court of New South Wales in its equitable jurisdiction, made on 13th December 1934, the trustees resorted to the corpus of the trust property to an amount of £4,073 17s. 8d.

in order to continue payments to the annuitants.

Since June 1945

the income from the trust property had in each financial year been more than sufficient to meet all outgoings including the payments to the annuitants as those had been on a diminishing scale. Payments made by the trustees to the annuitants from 5th October 1914 to the date of the affidavit totalled £18,916 Os. 9d. Up to the date of the death of the testatrix there was not any prospect of disposing of the testator’s Gordon estate upon sub­ division leasehold tenures as contemplated by the testators but the trustees of his will having obtained the advice of experts caused surveys and plans of subdivision of that estate to be pre­ pared and on 21st October 1927 obtained an order from the Court for the modification of the trusts of the will. Further powers were granted to the trustees by orders of the Court made on 30th Novem­ ber 1928 and 13th December 1934. In pursuance of the powers conferred upon them by the will as modified and supplemented by those orders the trustees expended moneys in the building of roads and otherwise developing the land. Sales of that land had been greatly accelerated since 1945 and the value of the land in the Gordon estate had correspondingly increased. The total value of the assets held by the trustees as at 30th xVpril 1950 was £196,307 18s. lOd. and it was stated that if the real estate were valued on a basis of comparable sales of similar land in the vicinity the value would exceed £40,000 instead of the normal book value of £23,453 3s. Id. as shown. Land of the estimated value of £91,969 had been resumed and compulsorily acquired by the Commonwealth and State Governments, payment therefor being still outstanding. The income from the estate was, at the date

388 HIGH COURT

[1952.

H. C. OF A.

of the affidavit, more than sufficient to make the payments directed

] 952.

by the testator to lie made firstly to eightldy out of that income,

CoNCIliKOA-and there was a fiahinc.e of income to f>e applied by the trustees TIONAI,

I ' n i o n in accordance with the jirovisions of the will and the trustees were

OF N iow desirous of obtainin<r the orders and directions of the Court with

S(U:th regard to its jiroper apjilication. At the date of the affidavit

\̂'AI,ES

V.surpluses of income had accrued which the trustees had carried

'J ’m .STi.F .Tn-

forward as accumulatioiis of the final balance of income from year to year as follows; year ended June 1946, £539 2s. 9d. ; 1947, .£234 ]5s. Od. ; 1948', £81 lOs. 7d. ; and 1949, £1,089 3s. Od. ; total, £1,944 11s. 4d. That total sum was exclusive of moneys due to the trustees by Avay of accrued interest in respect of the abovementioned resumptions. The capital position of the estate was sufficient to enable the trustees to make special provision by earmarking a certain portion of the estate or income thereof for the payment of the conditional aid and support provided in the will to be paid to the beneficiary relatives and others therein mentioned and described. Deeming it to be practicable and expedient the trustees were desirous of obtaining the directions of the Court whether in the events that had happened they were entitled so to do, and, if such be the case, they asked the Court to approve a special provision made by the setting aside by the trustees of Commonwealth bonds held by them of the face value of £26,000 bearing interest at the rate of £3 2s. 6d. per cent per annum thereby producing an income of £812 per annum being an income exceeding the maximum income required by £136 or by just over twenty per cent. The manager of the Australian Mutual Provident Society had informed the deponent that that society would upon the recei]3t of a single premium totalling the sum of £6,840 3s. 2d. undertake the unconditional payment of an annuity of £52 to each of the thirteen people referred to above. The trustees, however, considered it unlikely that some of those thirteen persons Avould at any time become eligible to receive those annuities and changed circumstances of some of the present annuitairts might render them ineligible and in consequence the trustees deemed it to be not in the best interests of the estate to purchase annuities by the payment of a premium to that society or to any other insurance society.

WAYTIO.

The deponent further deposed that the Sydney City Mission mentioned in the will was an association duly incorporated under the provisions of the Companies Act 1936-1940 (N.S.W.). The objects of the association as set out in its memorandum were as follows: “ 3. The objects for which the Mission is established are

87 C.L.R.] OF AUSTRALIA.

389

,to promote the extension of Evangelical religion throughout

H. C. OF A.

Sydney and its suburbs without reference to denominational

1952.

distinction and where considered necessary to give assistance in

Cong reg a­

money or in kind to help the poor and for these purposes :—tio n a l

U n io n

(A) To employ and pay Missionaries of approved character and qualifications whose duty shall be to visit from house to house in

OF N ew

S outh W ales

the respective districts that shall be assigned to them, to read

V.

the Scriptures, to engage in prayer and religious conversation, to

T h is t l e t h ­

urge those who are living in the neglect of religion to observe the

w a y t e .

Sabbath and attend public worship, to see as far as possible that all persons possess the Scriptures, to distribute approved religious tracts to obtain Scriptural education for the children of the poor, to hold meetings with the approval of the Mission for reading and expounding the Scriptures and for prayer to promote morality and sobriety and to adopt such other means as the Mission may think necessary.

(B) To provide, when possible, the poor and indigent with relief in money or in kind such as board, lodging, clothing, food, medical attendance, nursing, medicine and all things and appliances of a medical surgical, dietetic and sanitary character.

(C) To raise and collect money by subscriptions, donations and otherwise in such manner as the Mission shall think fit.

(D) To imdertake and execute the trusts of any fund or property raised, bequeathed, or devised, for any object similar to any of the objects of the Mission. ' (E) To purchase, exchange, take on lease or acquire by gift, devise, bequest or otherwise any real or personal property and to erect buildings thereon.

(F) To sell, exchange, improve, lease, mortgage, dispose of or otherwise deal with any real or personal property of the Mission and to borrow money upon the security of any of the property of the Mission.

(G) To invest all moneys of the Mission not immediately required in such a manner as the Mission shall think fit.

(H) To publish and circulate books, tracts, and other literature and arrange for and conduct sales of work, festivals, addresses, lectures, concerts and other entertainments of a suitable character and to raise and collect money by means thereof.

(I) To carry out all or any of the above objects either alone or in conjunction Avith any persons, company, or association, having objects wholly or in part the same as those of the Mission.

(K) To do all such other things as are incidental or conducive to the attainment of the above objects.”

:390 HIGH COURT

[1952.

]i, r. OK A,

Tli(‘, ,sa.id incmoratuliim al.so provided, inter alia, as follows :—

1052.“ I. The incotiie a,nd jmiperty of the Mission, however derived,

( ' o N( ; UK( i A-shall he applied sohdy towards tlie olijects of the Mission, and no

TIONAL

part ilu'reof shall he paid or transferred directly or indirectly hy

I ' n i o n

way of dividend, honus, or otherwise howsoever, hy way of profit

OK

A’ low

S O I ' T I I i.() any jierson or ])crsons. Provided that nothing herein contained

W'ai.ks

V.shall pi'event the jrayinent in good faith of remuneration to any

O’l l lS T L U T lI -oflicers or servants of the Mission, or to any memher thereof, or WAVTK.other person, in return for arry services actually rendered to the Mission, nor jU'event the payment of interest at a rate not exceeding live ])ounds per centum per annum on money harrowed from any memher of the Mission nor exclude any member of the Mission from the henefit of any grant made in furtherance of any of the objects of the Mission, nor prevent the gratuitous distribution among or sale at a discount to members of the Mission of any books, tracts, or other publications, published or circulated by the Mission under tlie powers of this Memorandum.

7. If upon winding up or dissolution of the Mission there remains after satisfaction of all its debts and liabilities any money or property whatsoever, the same shall not be paid to or distributed among the members of the Mission, but shall be given or transferred to some other Institution or Society having objects similar to the objects of the Mission, to be determined by the members of the Mission at or before the time of dissolution and in default thereof by the Governor of the State of New South Wales.”

The Female Mission Home, Glebe, mentioned in the will, passed out of existence prior to the death of the testator and inquiries made by the deponent shortly after the granting of probate of the will of the testatrix failed to discover any records relating to it.

The Sydney Industrial Blind Institution mentioned in the will Avas incorporated by priv^ate Act of Parliament, the Sydney Industrial Blind Institution Incorporation Act 1901 (N.S.W.). The purpose of that incorporation aa'us by that Act expressed to be “ For the purposes of the teaching of trades to blind 2:»ersons and generally for promoting the welfare of such persons ”. The by- laAvs under that Act provided, inter alia, as folloAvs :—

“ 2. The immediate objects of the association shall be : to furnish the industrious among the blind Avith instruction in Avork, convenient rooms for AAXu’king in, materials Avith AA'hich to AA'ork, and a place in which the Avork may advantageously be sold ; to A'isit the Idind at their oAvn homes ; to teach them reading from embossed ty]ie, Avriting and such liandicraft as may be practicable ; to maintai]! a lending and reference library of embossed Iiooks.

87 C.L.R.] OF AUSTRALIA.

391

H. C. OF A.

3. The Association will, in other respects, as far as circumstances will allow, adopt such measures for j^romoting generally the welfare

1952.

of the blind as may from time to time be found advisable.

Co n g reg a ­

tio n a l

4. Although the association is formed mainly for day work by individuals living at their own homes, a limited number of well

U n io n

OF New

conducted blind persons may, at the discretion of the Committee,

South W ales

be received into residence at the Institution ”.

V.

New South AVales Institution for the Deaf and Dumb and the Blind, in the will called the Deaf and Dumb and Blind Institution,

T h is t l e t h ­ w a y t e .

was incorporated by private Act of Parliament, the Neiv South Wales Institution for the Deaf Dumb and Blind Incorporation Act of 1905 (N.S.W.). By the by-laws under that Act the objects of the institution were stated as follows :—

“ (a) The education and maintenance, and, as far as practicable, the advancement in life of deaf and dumb and of blind children.

(b) To have an oversight of the Deaf and Dumb and the Blind after they leave school; to assist them in their endeavours to obtain suitable employment; and in other ways to minister to their welfare.

To make provision for the instruction and training of teachers of the Deaf and Dumb and the Blind ” .

(c)

Royal Society for the Prevention of Cruelty to Animals New South Wales, formerly known as “ The Animals Protection Society of New South Wales ” and in the will called the “ Animals Pro­ tection Society of Sydney ” , is an association incorporated under the provisions of the Companies Act 1936. The objects of that society as set out in par. 3 of its memorandum of association were as follows :—

(a)

To watch over and protect by every legitimate means

God's dumb creatures from cruelty.

(b) To w'atch over and assist in having such laws of the State as may be enacted for the purpose of preventing cruelty to animals effectually endorsed observed and maintained.

(c) The promotion of whatever may tend to teach and influence mankind to be considerate and merciful to all dumb creatures placed under their care and control, to wit—

(I) By publishing and circulating literature of a character that shall tend to further the objects of the Society.

(II) By addresses, lectures or prize essays.

(III) By the formation of a Library.

(d) To raise money in such manner as the Society shall think

fit to carry forward and maintain the objects of the Society.

392 HIGH COURT

[1952.

H . C. OF A. (c)

To invest in Government Savings Bank all the moneys of

11)52. CONOKHOA-

the Society not immediately re(|uired.

(1‘) To do all such other things as are incidental or conducive to

TIONAO

the attainment of the above objects.

Un io n

(g) To establish and control Branches in the chief towns of the

OF

N ew

South Colony with a view of extending the work and objects of the

W alks

V.Society.”

T h ist l e t h ­

The said memorandum also yirovided, inter alia, as follows :—

w a y t e .“ 4. The income and property of the Society whencesoever

derived shall be applied solely towards the objects of the Society as set forth in this Memorandum of Association and no part thereof shall be paid or transferred directly or indirectly by way of dividend bonus or otherwise howsoever by way of profit to any person or persons who at any time are or have been members of the Society or to any of them or to any person claiming through any of them. Provided that nothing herein contained shall prevent the payment in good faith, of remuneration to any officers or servants of the Society or to any member thereof or other person in return for any services actually rendered to the Society or to the repayment of money advanced to or for the purpose of the Society.

6. If upon Avinding up or dissolution of the Society there remains after the satisfaction of all its debts and liabilities any money or property whatsoever the same shall not be paid to or distributed among the members of the Society but shall be given to some other Society or Institution having objects similar to the objects of this Society to be determined by the members of this Society at or before the time of dissolution and in default by the Governor of the Colony.”

The Bush Missionary Society Ltd. in the will called “ The New South Wales Bush Missionary Society ” was a society duly in­ corporated under the Companies Act 1936. The objects of the society as set out in par. 2 of its memorandum were as follows ;—

“ (a) To disseminate in the country districts of Australia a scriptural knowledge of the Lord Jesus Christ Avithout relation to sectarian differences by means of home visitation, visitation of schools, colportage, tract distribution, broadcasting, cinematograph films and lantern slides, gospel missions, conventions, house parties and other desirable means and to appoint such missionaries teachers and agents as may be necessary to carry out such Avork.

(b) To promote meetings, co-operate and assist in church services and meetings and with other organised Christian bodies and individuals in city and country centres to propagate the Gospel

87 C.L.R.] OF AUSTRALL4.

393

of our Lord Jesus Christ and to make the objects and needs of the

H. C. OF A.

Society known.

1952.

(c) To arrange organise manage and conduct Children’s Holiday Schemes and other schemes for the development of the spiritual and

Co n g reg a ­ tio n a l

U n io n

moral character of youth.

OF N ew

Sou th W a les

(d) To establish and mauitain sphitual and cultural centres in country di.stricts and to establish city hostels for the convenience

V.

T h is t l e t h ­ w a y t e .

accommodation and care of country folk and the accommodation

of country children attending city schools and universities.

(e) To accept appointment and act as or in the capacity of Trustee or one of the Trustees of any property real or personal now held by the N.S.W. Bush Missionary Society or hereafter directed or required to be held upon trust for or relating to the propagation of the Gospel of the Lord Jesus Christ.

(f) To undertake execute carry on and administer any trusts in respect of which it shall have been appointed Trustee and to exercise carry out and perform all the powers rights privileges and duties belonging to conferred upon or vested in it as such Trustee or one of such Trustees.

(g) To act as the agent or attorney of any person company or corporation.

(h) To purchase take on lease or in exchange hire accept take security over or otherwise acquhe by any means whatsoever and hold any real or personal property of any kind or nature or any estate or interest therein.

(i) To manage control lease exchange mortgage charge sell give up surrender dispose of develop turn to account or otherwise deal with any real or personal property of any kind or any estate or interest therein at any time vested in or belonging to the Com­ pany.

(j) To invest and deal with any moneys vested in or held or controlled by the Company in such manner as may from time to time be determined and to lend such moneys on such terms and on such security as may seem expedient.

(k) To construct improve maintain alter manage carry out and control any buildings works or conveniences which may be neces­ sary or convenient for the purposes of the Company’s interests or which may be calculated directly or indirectly to advance such interests or any of them and to enter into all such contracts and agreements in relation thereto as the Company may deem advisable. (l) To apply for and acquire and hold any charters acts of Parliament privileges licences concessions or other rights powers or orders from the Government of the Commonwealth of Australia

394 HIGH COURT

[1952.

H. 0. or,' A.

or any of the Htafe.s thereof and exercise and carry out any powers

1952.rights or privileges so obtained.

C oN OH K G .V -(in) To pro\'ide for the nianageinent of the affairs of the Company TIONAĴ

in a.ny Hta.te of tJio Commonwealth, of Australia of any of the pmo-

U n i o n

OF N icw })erty lu'ld or .managed by it in such manner as the Company

iSouTir shall think lit and in jiarticular to ap])oint any person or p:>ersons

■Wales

V.to be attorney or attorneys agent or agents of the Company with

T iu s t l e t ii-such terms as may be thought fit and to jirocure the Company to W A Y T E .

be registered or recognised in any State of the Commonwealth of

Australia.

(n) To liorrow raise or secure the payment of money in such manner as the Company shall think fit and in pjarticular by mortgage or by issue of debentures perpetual or otherwise charged upon all or any of the property vested in or belonging to the Company both jjresent and future and to vary extend redeem or pay off any such securities.

(o) To amalgamate with any companies institutions societies or associations having objects altogether or in part similar to those of this Company.

(p) In furtherance of the objects of the Company to expend any moneys of the Company and to do all such other things as it considers desirable for the purpose of promoting the intere.sts of The Bush Missionary Society or of any Branch thereof.

(q) To do all or any of the above things in any part of the world and either as principals trustees agents or otherwise and either alone or in conjunction with any other conqoany undertaking or person and either by or through agents trustees or otherwise.

(r) To do all such other acts and things as are incidental or conducive to the attainment of the above objects or any of them.” Dr. Barnardo’s Homes: National Incorporated Association, otherwise known as Dr. Barnardo’s Homes and in the will called “ Dr. Barnardo’s Homes London England ”, is an association duly incorporated in England under the provisions of the Companies Act 1862-1908 (Imp.) (25 & 26 Viet. No. c. 89—8 Edw. 7. c. 12) and registered as a foreign company under the Companies Act 1936. The objects for which the association is establi.shed as set out in par. 3 of its memorandum were as follows :—

“ To do all or any of the following things for the purpose of attaining the objects if and so far as allowed by law and observing and performing whatever may be required by law in order legally to carry out such objects.

To acquire gratuitously or otherwise and for such estate or interest and in such manner as shall be deemed advisable from the

(a)

87 C.L.R.] OF AUSTRALIA.

395

Trustees Committee and all other persons holding property for or

H. C. OF A.

on behalf of the Institutions known as ‘ The East End Juvenile

1952.

Mission ’ or ‘ Dr. Barnardo’s Homes ’ or ‘ Dr. Barnardo’s Homes

CONGEEGA-

TIONAL U nion

for Orphan and Destitute Children ’ or ‘ Dr. Barnardo’s Homes for

Orphan and Waif Children ’ or Dr. Barnardo’s Homes for Working

OF N ew

S outh W ales

and Destitute Lads ’ or ‘ The Village Home for Orphan and Destitute

Girls ’ or other Institutions of which Dr. Barnardo has been the

V.

T h is t l e t h ­ w a y t e .

Founder or with which his name is connected such property of the

said Institution as may be legally vested in the Association and to carry on and manage the Homes Schools Shelters for boys girls infants young persons and others Mission Halls Coffee Palaces Her Majesty’s Hospital for Waif Children and to acquire the Industrial Home and other property in Manitoba and Canada and all other the real and personal property of or belonging to or held in trust for the said Institutions or any of them in Great Britain the Dominion of Canada or any of Her Majesty’s Colonies or Dependencies or elsewhere which can legally be vested in the Association and to hold any such property which may be subject to special trusts upon the trusts applicable thereto by virtue of any trust deeds affecting the same or upon such other trusts as may be made applicable thereto by virtue of any order of the Charity Commissioners or of any competent Judicial Authority and to undertake the burden of the Lessees’ covenants in respect of Leasehold hereditaments and to take over and to discharge all liabilities in connection with the said Institutions or any of them and to indemnify all such persons as aforesaid against any liability in respect of the premises and to acquire the right to use the name of Dr. Barnardo in respect of all or any of the premises aforesaid and to acquire the right to all legacies gifts and subscriptions given or to be given in respect of any of the Institutions aforesaid.

(b)

To seek out rescue maintain educate teach useful trades

handicrafts and industries and generally train industrially and religiously treat medically and place out in life Orphan Destitute and Waif Children and young persons and for this purpose to receive Orphan Destitute and Waif Children and young persons of both sexes in the Homes or Institutions of the Association or in other Homes or Institutions carried on in connection therewith either in the United Kingdom or in any of Her Majesty’s Colonies or Dependencies or abroad and to board out children and young persons in any suitable Cottages and Homes either in the United Kingdom or in any of Her Majesty’s Colonies or Dependencies or abroad and to provide children and young persons with board lodging clothing education and training in such manner as may

396 HIGH COURT

[1952.

H. C. OF A, expedient and to supervise tliein afterwards. Subject neverthe­ less to this provision that all such children and young people who CoNGHEOA- brought up by the Association shall be so brought up only

T IO N A I.

in the Protestant Faith according to the text and doctrine of the

U nion

OF N ew Holy Scriptures as taught by some one or more of the Protestant

iSOUTItEvangelical Churches of Great Britain whether Established or

W ales

V.Nonconforming.

T h is t l e t h ­

(c) To find suitable places and employments for children and young persons and to put children and young persons out in the world and to provide them with suitable outfits and otherwise to assist them in earning their own living and to assist them to emigrate and to do all things expedient for the purpose and to afterw'ards siipervise the children so placed out in life.

w a y t e .

(d) To take over institute or promote and to assist or carry on any religious philanthropic or Charitable Institution or work which shall be for the benefit or advantage of children or young people or of the poor or for the furtherance of religious or secular education or for the help and comfort of the sick or aged or for the spread of the Gospel either at home or abroad or for the benefit of or calculated to assist in the objects of the Association and in particular to take over and carry on any of the trades handicrafts or industries in which children or young persons have hitherto been instructed in any of the said Institutions or any other trade handicraft or industry adapted for instructing or training children and young persons and for the purposes of the Association or any of them to accept conditional gifts and legacies and to carry out the conditions attached to such gifts and legacies or any of them Provided that the Association shall not carry on any trade or business except bona fide for the object of teaching orphan destitute and waif children or young persons useful trades industries and handicrafts and so far only as may bona fide be considered necessary for the purpose of rendering the teaching efficient and enabling the Association to dispose of the articles made in the ordinary practice of the trade and at a reasonable and proper and full price having regard to the market price and to the quality of the articles sold and in accordance with the ordinary rules governing supply and demand so far as reasonably practicable and so that proper accounts shall be kept for every such trade and business according to the usual custom in such trades or businesses including capital and profit and less accounts.

(e) For the purposes of the Association and subject to the provisions of s. 21 of the Companies Act 1862 to take over purchase accjuire hold manage exchange improve sell let mortgage or dispose

450 HIGH COURT

[1952.

H.

C. OF A. assifj;n('-(l is that ])iil)Iic policy condemns dispositions which make

JD52. (\)NCiRI0OA-

])ro])crty imdicmahle for an indefinite period: see Jarm/m on

Wills, Hth ed. (IffOl), ]>. 284, and cases there cited. This principle

TI ONAl ,does not invalidate; a, f îft of income which is limited to continue

U n i o n

O h' N nwfor a, lenythy hut d(;tcrminate or determinable period. There is

S o n T i rthem a remaimh'T' outstanding in sonieone other than the donee

W alios

V.of inc.onu;, and, [)rovid.ed that the interest of that donee vests

T i iis t l e t ii-within the time allowed by the rule against remoteness of vesting, WAYTI5. the gift of income offends no rule of law, however long may be the

KiUo J.

period of its duration {fn re Chardon ; Johnston v. Davies (1) ; In

re Clumi.bers’ Will Trusts (2) ; cf. In re Johnson''s Settlement Trusts

McClure v. Johnson (5) ; In re Wightwicli s Will Trusts (4). These

cases show that the reason why the objection to indefinite in­

alienability has no applic.ation to a gift of income for a long but

finite period is that the donee could join with the person bene­

ficially entitled in remainder, and together they could dispose of

the corpus. The essential point, therefore, of the doctrine that a

perpetual gift of income is invalid if it purports to make corpus

perpetually inalienable, is that where there is such a gift of income

there is no remainder; there is no one for whose benefit the trust

instrument operates to preclude alienation of the corpus by the

donee of income ; and therefore there is no person or combination

of persons by whom alienation can be effected consistently with

the terms of the gift. To say that there is no remainder after the

gift of income is simply to say that the gift is a gift of corpus.

I t seems to me, therefore, that to ascribe the invalidity of the

gift to the fact that it attempts to make the corpus inalienable is

only to emphasize one aspect of its self-contradictory character.

Whatever may be the preferred method of stating the ground of invalidity, an exception exists in favour of gifts for charity {Commissioners for Special Purposes of Income Tax v. Pemsel (5) ; In re Macaulay’s Estate ; Macaulay v. O’Donnell (b) ), including gifts to corpoT'ations whose objects are exclusively charitable in the sense that eacdi object either is charitable per se or should be construed as ancillary to other objects which themselves are charitable : cf. Royal College of Surgeons of England v. National I Provincial Bank Ltd. (7) ; Salvation Army {Vict.) Property Trust V. Fern Tree Gully Corporation (8).

(1) (1928) Ch. 404.(5) (1891) A.C. 531, a t p. 581.

(2) (1950) Ch. 267.(6) (1943) Ch. 435 (n) (H.L.).

(2) (J943) Ch. 341, a t pji. 344, 345. (7) (1952) A.C. 631.

(4) (1950) Ch. 260.

(8) (1952) 85 C.L.R. 159.

87 C.L.R.] OF AUSTRALIA.

451

H. C. OF A,

I agree that the perpetual gifts of income which have been challenged in these proceedings are charitable gifts and must be

1952.

upheld as such.

CONGEEGA-

TIONAL U nion

The order of the Court was that the decretal order of the Supreme

OF N ew

South W ales

Court he varied as follows :—

1. By deleting therefrom the following words :—“ And this Court

V.

doth further declare that the direction in the ivill of the testator

T h ist l e t h -

nintMy as to the balance of the said income that until such

waa t̂ e .

time as the distribution of the final balance of income from the testator s said estate should come into force as in the testator’s said will provided the trustees of the said will shall expend any part or the whole of such balance of income from year to year in improving and developing the Gordon estate referred to in the said will by erecting suitable tenantable buildings thereon or othenvise as they in their discretion may think fit or they may in their discretion invest for the general purpose of the said will such balance of income or any part thereof from year to year instead of expending the same is not valid or effective and this Court d,oth further declare that the said balance of income is held by the trustees in so far as the said balance of income is derived from the estate of the testator upon a resulting trust to the estate of the testator and in so far as the said balance of income is derived from the estate of the testatrix upon a resulting trust to the estate of the testatrix ” and by substituting therefor a declaration in the words folloiving :—“ And this Court doth further declare that the direction in the will of the testator ninthly as to the balance of the said income that until such time as the distribution of the final balance of income froyn the testator’s said estate should come into force as in the testator’s said will provided the trustees of the said will shall expend any part or the whole of such balance of income from year to year in improving and developing the Gordon estate referred ̂to in the said will by erecting suitable tenantable buildings thereon or otherwise as they in their discretion may think fit or they may in their discretion invest for the general purposes of the said will such balance or income or any part thereof from year to year instead of expending the same is valid and effective but that the power conferred by the follow­ ing words of the testator’s will, namely ‘ or they may in their discretion invest for the general purposes of this my

452 HIGH COURT

[1952.

H.(’. OF A.v’iU such balance of income or any part thereof from year to

1952. year instead of so expending the same ’ could not he exercised

CONCIKKO.V-beyoml the period of twenty-one years from the death of the 'i’lONAI,

LInion sa.td, testator and that as to the accumulations of income for

OF N i>:w	subsefjuenl years in the hands of the trustees there is an
JSoUTli	i'u testaey

\V.\LI0S

V.2. By deleting therefrom the following words :—“ And this Court

T h i s t i . ht h -doth, further declare that the discretionary power and authority WAYTJi.

conferred upon the trustees by the will of the testator to make special provision by earmarking a certain portion of his estate or the income therefrom or otherwise for the payment of the conditional aid and support in the said will provided to be paid to the beneficiaries relatives and others thereinafter mentioned and described is not valid or effective^ and by substituting therefor a declaration in the words following :— “ And this Court doth further declare that the discretionary power and authority conferred upon the trustees by the will of the testator to make special provision by earmarking a certain portion of his estate or the income therefrom or otherwise for the payment of the conditional aid and support in the said will provided to be paid to the beneficiaries relatives and others thereinafter mentioned and described is valid and effective.”

3. By deleting therefrom the following tvords :—“ And this Court doth further declare that the said last mentioned directions are void in their entirety.” and by substituting therefor a declaration in the words following:—“ And this Court doth further declare that the trustees are now entitled to make the special provision by earmarking certain portion of the trust ' estate or the income therefrom or otherwise for the payment of the conditional aid and support in the will of the testator

2Jrovided to be paid to the beneficiaries relatives and others

therein mentioned and described.”

4. By deleting therefrom the following words :—“ A')id this Court doth further declare that the direction in the will of the testator that upon the making of the said special 'provision the trustees may then distribute the final balance of income of the testator s estate exclusive of such special provision annually as there­ inafter provided is not valid or effective.” and by substituting therefor a declaratio'n in the ivords folloiving :—“ And this Court doth further declare that the direction in the will of the testator that upon the making of the said sjiecial provision

87 C.L.R.] OF AUSTRALIA.

453

the trustees may then distribute the final balance of income

H. C. OF A.

of the testator's estate exclusive of stick special provision

1952.

annually as thereinafter provided is valid and, effective."

Cong reg a­

tio nal

5. By deleting therefrom the following words :—“ And this Court doth further declare that the direction contained in the will

U n io n

OF New

of the testator that i f at any time subsequent to the making

W ales

V.

of the said special provision it should be found that the same

T h ist l e t h -

was inadequate for the purpose aforesaid his trustees should

WAYTE.

then for so long as they may think fit or find necessary suspend the distribution of the ivhole or any part of the final balance of inco-me and shoidd appfly such suspended part of such distribution to the purpose aforesaid or should the trustees find that the said special provision was in excess of require­ ments they may release such part o f such special provision for so long as they in their discretion think fit and should apply the same to the trusts of the tedators ivill is not valid or effective." and by substituting therefor a declaration in the words following :—“ And this Court doth further declare that the direction contained in the will of the testator that i f at any time subsequent to the making of the said special provision it shoidd be found that the same was inadequate for the purpose aforesaid his trustees should then or so long as they may think fit or find necessary suspend the distri­ bution of the whole or any part of the final balance of income and should apply such suspended part of such distribution to the purpose aforesaid or should the trustees find that the said special provision was in excess of the requirements they may release such part of such special provision for so long as they in their discretion think fit and should apply the same to the trusts of the testator's will is valid and effective."

6. By deleting therefrom the following words :—“ And this Court doth further declare that according to the true construction of the will of the testator and without dealing with the validity of the provision construed the final balance of income in the said estate is distrihitable upon the death of the last surviving of the relatives or other beneficiaries named, or described in the will of the testator and to ivhom he has eighthly directed to be paid the conditional aid and support in the will of the testator provided and of those benefiting under the fourthly fifthly and sixthly provisions as set out in the said will." and by substituting therefor a declaration

454 HIGH COURT

[1952.

H.

C. oi’ A.in the v)ords followi'ng:—“ And this Court doth further

1952. CONCUUSOA-the testator the final balance of income in the said estate is

declare that according to the true construction of the will o f

TIONAL

ddstribulahle upon the death of the last surviving of such of

U nion

OF N ew the relatives or other beneficiaries named or described in

South.

the ivill of the testator provided as were in being and identi­

W ales

V.  fiable as possible beneficiaries at the time of the death of

T i i i s t l e t u -the testator and of those benefiting under the fourthly fifthly WAYTB.

and sixthly provisions as set out in the said will ”.

7. By deleting therefrom the following words :—“ And this Court doth farther declare that the direction in the will of the testator as to a further one-third of the residue of the final available balance of income to pay the same to the Congregational Union of New South Wales is not valid or effective and this Court doth further declare that the said last mentioned one-third share is held by the trustees in so far as the said share is derived from the estate of the testator upon a resulting trust to the estate of the testator and in so far as the said share is derived from the estate of the testatrix upon a resulting trust to the estate of the testatrix.” and by substituting therefor a declaration in the words following:—“ And this Court doth further declare that the direction in the will of the testator as to a further one-third of the residue of the final available balance of income to pay the same to the Congrega­ tional Union of New South Wales is valid and effective ”.

8. By deleting therefrom the following words :—“ And this Court doth further declare that the direction to pay over to the com­ mittee for the time being of the Congregational Union of New South Wales a sum out of the income from the testator s said estate equal to five per centum per annum of the net proceeds of such income to be applied by the committee in the manner in the said will provided is not valid or effective and this Court doth further declare that the said five per centum per annum, is not segregated from the rest of the income and the income is to be held by the trustees as though the provisions as to the said five per centum per annum had not been made.” and by substituting therefor a declaration in the words following:—“ And this Court doth further declare that the direction to pay over to the committee for the time being of the Congregational Union of New South Wales a sum out of the income from the testator’s said, estate equal to five per centum per annum of the net proceeds of such income to be

87 C.L.R.] OF AUSTRALIA.

455

applied hy the committee in the manner in the said will

provided is valid and ejfective

CONGKEGA-

TIONAL U n io n

Solicitors for tlie appellant, Congregational Union of New South Wales, Gill, Oxlade & Broad.

o r N ew

South W ales

Solicitors for the respondents-trustees, W. A. Gilder, Son & Co.

Solicitor for the Attorney-General (N.S.W.), F. P. McRae, CrowTi Solicitor for New South Wales.

V.

T h is t l e t h -

Solicitors for the other respondents, G. G. Tremlett; J. Birnie

WAYTE.

Jackson

Coates ; McMaster, Holland <& Co. ; Windeyer & Co. ;

and Boyce & Boyce.

J. B.