Hardey v Tory - [1923] HCA 35

TORY AND OTHERS

RESPONDENTS. PLAINTIFFS.

ON APPEAL FROM THE SUPREME COURT OF

WESTERN AUSTRALIA. Will-Charitable - bequest-Gift to secretaries of charitable societies-Gift for charitable

By his will a testator directed his trustees to stand possessed of certain moneys upon trust " 'to pay over the same into the hands of the secretaries Aug, 13, 14.

for the time being of the Wesleyan Missionary Society in London."

Held, that the gift to the secretaries of the Society was for the purposes of the Society; and, as those purposes were known to the law as charitable purposes, the gift was valid.

Per Higgins J.: Where a gift is made to a society having a distinctive charitable purpose, prima facie the gift is for that purpose.

Decision of the Supreme Court of Western Australia (McMillan C.J.)

APPEAL from the Supreme Court of Western Australia.

Joseph Hardey, who died at Perth on 6th September 1875, by his will (inter alia) directed his trustees to stand possessed of certain moneys upon trust to pay or divide one-fifth part thereof to or amongst children of his daughters living at the death of the survivor of those daughters; and the will proceeded: "I direct my trustee or trustees shall stand possessed of the remainder of the amount" of such moneys " upon trust to pay one-half part thereof

32 CLR 593

into the hands of the trustees for the time being of the Wesleyan Methodist Society at Perth to be by them invested in the purchase of houses or land and to be held by such trustees upon the trusts of a certain deed

and to the use of the Wesleyan Methodist cause within the colony for the maintenance of such of the minis- ters of the Wesleyan Connexion as shall in the opinion of the District Meeting for the time being of that body most need help And as to the other half part of the said trust moneys to pay over the same into the hands of the secretaries for the time being of the Wesleyan Missionary Society in London And in the event of there being no such children of daughters as above referred to "then I direct my said trustees or trustee shall stand possessed of the share to which such children

would have been entitled under this my will

upon trust to divide and pay the same equally among and to the trustees of the Wesleyan Methodist Society at Perth and the secretaries for the time being of the Wesleyan Methodist Society in London to be by them held upon and for the like trusts intents and purposes as are hereinbefore declared of and concerning the shares hereinbefore directed to be paid to them respectively." The testator's daughters had died without leaving children.

Frank Bertram Tory, one of the trustees, applied, on originating summons to the Supreme Court, for the determination of (inter alia) the following questions arising out of the administration of the trusts under the will :-(1)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hardey v Tory

Details

AGLC: Hardey v Tory [1923] HCA 35
Case: [1923] HCA 35
Decision Date: 14 August 1923

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Western Australia. The dispute arose from the interpretation of a will made by Joseph Hardey, who directed his trustees to hold a portion of his estate upon trust. Specifically, the testator directed that one half of the remaining moneys be paid to the secretaries for the time being of the Wesleyan Missionary Society in London, and in the event of no children of his daughters surviving, the entire residue was to be divided between the trustees of the Wesleyan Methodist Society at Perth and the secretaries of the Wesleyan Missionary Society in London. The testator's daughters died without issue, leading to the application of the residuary clause.

The primary legal issue before the High Court was whether the bequests to the secretaries of the Wesleyan Missionary Society in London constituted valid charitable gifts. The appellant argued that the gifts were intended for the secretaries personally and that the trusts were too indefinite to be carried into effect, or alternatively, that no general charitable intention was disclosed in the will. The respondents contended that the gifts were for the purposes of the Society, which were charitable.

The High Court, affirming the decision of the Supreme Court, held that the gifts to the secretaries of the Wesleyan Missionary Society in London were valid charitable bequests. The Court reasoned that a gift made to a society with a distinctive charitable purpose should prima facie be considered a gift for that purpose, unless the will indicates otherwise. In this instance, the purposes of the Wesleyan Missionary Society were known to the law as charitable, and there was nothing in the will to contradict this presumption. Therefore, the bequests were interpreted as being for the charitable purposes of the Society.

The appeal was dismissed with costs.

Orders