Smith v West Australian Trustee Executor & Agency Co Ltd - [1950] HCA 32

81 CLR 320

THE WEST AUSTRALIAN TRUSTEE

EXECUTOR &AGENCY COMPANY

RESPONDENTS.

LIMITED AND ANOTHER

PLAINTIFF AND DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF

WESTERN AUSTRALIA. Will-Construction-Charities-Gift of residue-Gift to "such charitable institutions,

bodies and organisations as my trustees may select - Uncertainty.

By his will the testator directed his trustees to " pay and distribute the PERTH,

balance of my estate between such charitable institutions bodies and organisa- Sept. 6.

tions in the Perth-Fremantle Area as my Trustees may select in such propor- tions and in such manner and at such times as my Trustees shall think fit."

Held that the words used constituted a good charitable bequest and that the trustees being limited in their selective choice to charitable institutions, charitable bodies and charitable organisations, the gift did not fail for uncer- tainty.

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

APPEAL from the Supreme Court of Western Australia.

Charles MacCallum Smith who died at Perth on 21st August 1939 by clause 13 (c) of his will directed his trustees to stand possessed of the residue of his estate " 'Upon Trust to pay and distribute the balance of my estate between such charitable insti- tutions bodies and organisations in the Perth-Fremantle Area as my Trustees may select in such proportions and in such manner and at such times as my Trustees shall think fit " and by clause 20

81 CLR 321

declared the term Perth-Fremantle Area " " to mean the area within a radius of twenty miles from the Perth Town Hall.

The West Australian Trustee Executor &Agency Company Limited, one of the trustees, applied on originating summons to the Supreme Court for the determination of (inter alia) the following question arising out of the administration of the trusts under the will namely -whether on the true construction of the will the residuary bequest contained in clause 13 (c) of the will is a valid charitable bequest or is void for uncertainty or otherwise.

The application was heard by Dwyer C.J. who by order dated 30th June- 1950 declared that the bequest was valid.

Against the decision Aileen Smith the widow of the deceased and an executor and trustee of his will appealed to the High Court.

J. W. Durack K.C. (with him J. Dunphy), for the appellant. The adjective "charitable" qualifies only the noun "institutions." The trustees have power to select and pay to bodies and organ- isations which may not be charitable, and money SO paid may not be used for charitable purposes (In re Ashton Westminster Bank V. Farley 1 ). The objects of the trust are too vague and uncertain (Attorney-General for New Zealand v. Brown 2; Re Diplock Wintle v. Diplock 3 ). The deceased has not made definite the objects of his bounty and has attempted to give to his trustees power to make a will for him (Grimond (or MacIntyre) v. Grimond 4 ). In In re Pardoe McLaughlin v. Attorney-General 5 the selection…

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.

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Details

Case: [1950] HCA 32
Decision Date: 6 September 1950

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Western Australia concerning the construction of a will. The dispute arose from a bequest in the will of James MacCallum Smith, which directed his trustees to distribute the residue of his estate "between such charitable institutions bodies and organisations in the Perth-Fremantle Area as my Trustees may select in such proportions and in such manner and at such times as my Trustees shall think fit." The appellant, the deceased's widow and a beneficiary, argued that this residuary bequest was void for uncertainty.

The primary legal issue before the High Court was whether the residuary bequest constituted a valid charitable disposition or was void for uncertainty. Specifically, the court had to determine if the adjective "charitable" applied to all three categories of recipients – institutions, bodies, and organisations – or only to institutions. Further, if it applied to all, the court considered whether the trustees were sufficiently constrained to ensure the funds were applied for charitable purposes, or if the gift failed due to an impermissible delegation of the testator's testamentary power.

The High Court, affirming the decision of Dwyer C.J., held that the bequest was valid. The court reasoned that the adjective "charitable" was intended to qualify all three nouns: institutions, bodies, and organisations. This interpretation meant that the trustees' selection was limited to entities that were charitable in nature. Consequently, the gift did not fail for uncertainty, as the class of potential beneficiaries was sufficiently defined as charitable. The court also applied the principle that a testator may delegate the selection of specific charitable objects to trustees, provided that the ultimate beneficiaries are confined to charitable purposes, which was satisfied in this instance.

The appeal was dismissed with costs. The appellant was ordered to pay the costs of the respondents, with the executor entitled to recover its costs from the estate in certain circumstances.

Orders