William Mitchner Estate Enabling Act (6 Geo Vi) (Qld)

I RELIGION. 6 GEO. VI. 1941. William Mitchner Estate Enabling Act. 277 RELIGION. (1) William Mitchner Estate Enabling Act. (2) Roman Catholic Church (Northern Lands) Vesting Act of 1941. An Act to Authorise the Executors and Trustees of 6 GEO, VI. the Will and Two Several Codicils of William MWITITLCHLHIENAEMR MMoitncehynsefrodrmecienagspedarttoofpathyeoEvsetartCe eorftathine ENE A SATB c AL s TI . NEG said Deceased to the Corporation of the Synod of the Diocese of Brisbane and for other purposes. [ASSENTED TO 12TH DECEMBER, 1941.] W HEREAS WILLIAM 1VIITCHNER late of Allora Preamble. in this State Freeholder deceased died at Toowoomba also in this State on the first day of June one thousand nine hundred and eighteen having first duly made his last Will dated the twenty-first day of April one thousand nine hundred and eighteen and Two Codicils thereto dated respectively the said twenty-first day of April one thousand nine hundred and eighteen and the twenty-fifth day of April one thousand nine hundred and eighteen: AND WHEREAS by his said Will the said William Mitchner appointed The Union Trustee Company of Australia Limited to be his Executor and Trustee: AND WHEREAS by the first of the said Codicils the said William Mitchner appointed Hubert Gladstone Deacon to be an additional Trustee and Executor of his said Will: AND WHEREAS the said Will and Two Several Codicils have been duly admitted to probate by the Supreme Court of this State: e AND WHEREAS the said William Mitchner died ed stheiizseSdtaanted: possessed of both real and personal estate in t AND WHEREAS the said William Mitchner deceased by his said Will so far as it is necessary to be set out made a bequest in the words and figures following that is to say: AND I DECLARE that my Trustee shall

278 RELIGION. Mitchner Estate Enabling Act. 6 GEo. VI. stand possessed of the sum of Seven hundred and fifty pounds (£750) further part of the said Residuary Trust funds UPON TRUST to expend the sum of Six hundred pounds part thereof in the erection at Hendon in the said State of a Church of England in brick or stone and to expend the sum of One hundred and fifty pounds being the balance of the said sum of Seven hundred and fifty pounds in providing the said church with a gallery, organ, seating accommodation and a bell AND I HEREBY EXPRESS MY DESIRE that the said church shall be erected upon two allotments sold by me to the said Sarah Eliza Neylan and at present subject to a Mortgage executed by her in my favour PROVIDED HOWEVER that if my Trustee cannot arrange with the said Sarah Eliza Neylan for the erection of the said church upon the said two allotments THEN my Trustee shall purchase out of the residue of my Estate a suitable block of land for that purpose: AND WHEREAS certain difficulties arose with regard to the interpretation of the said Will and Codicils and as to the administration of the said Estate: AND WHEREAS by a Writ of Summons No. 150 of 1920 duly issued out of the Supreme Court of this State on the twenty-second day of April one thousand nine hundred and twenty by the said The Union Trustee Company of Australia Limited and the said Hubert. Gladstone Deacon as such Executors and Trustees as aforesaid against the Attorney-General for the Common- wealth of Australia and the Attorney-General for the © State of Queensland and others: AND WHEREAS Gordon Ellis Gall the Registrar of the Diocese of Brisbane was appointed to represent in the said action the Church of England at Hendon: AND WHEREAS the parties to the said action stated a Special Case in the said action for the determination by the Full Court of questions arising under the said Will: AND WHEREAS the following facts amongst others were agreed to for the purpose of the Special Case by the parties, namely :— (a) There are but few members of the Church of England resident at Hendon in the Will mentioned. Church of England services were formerly held at Hendon but the practice of holding such services was discontinued about £ S C s

I. ty' st d he ne ds nd y, Y be d ge at za id of at rd as of ate ne ee ert as n- he rar ent : ed by l: ers the rch Will ere e of out 1941. RELIGION. William Mite/timer Estate Enabling A ct . ten years ago owing to the paucity of attendance of worshippers at such services. A Church of England is not required at Hendon aforesaid nor is it likely to be for many years; (b) Church of England services are in fact held at Talgai West a few miles distant from Hendon at regular intervals in a private residence. A Church of England is much desired at Talgai West both by the Synod of the Diocese of Brisbane and by individual worshippers at that place; (C) The sum of £750 is in view of the prevailing cost of building insufficient to carry out the objects of the bequest. A suitable church could be erected at Talgai West but not in brick or stone and without a gallery for the said sum; (d) Sarah Eliza Neylan in the Will mentioned was willing to sell the land in the Will mentioned and upon which the testator expressed the desire the church at Hendon should be erected but was not willing to give the same for the purposes aforesaid: AND WHEREAS with respect to the aforesaid gift of £750 the following questions were contained in the said Special Case and were severally answered by the Full Court of this State in the words following that is to say :— Question 1. Part 1.—Is the bequest out of the residuary trust funds of £750 for the erection at Hendon of a Church of England and the providing of a gallery, organ, seating accommodation and a bell a good and valid bequest wholly or in part and if in part only as to what part? Answer.—The bequest out of the Residuary Estate of £750 for the erection at Hendon of a Church of England and the providing of a gallery, organ, seating accommodation and a bell is we think clearly a good bequest. In our opinion therefore the first part of the question should be answered by saying the bequest is good and valid. 279

280 RELIGION. William Mitchaer Estate Enabling Act. 6 GEO. VI. Question 1. Part 2.-1f the said bequest is good and valid will the same be carried out cy-pres by the erection of a Church of England at Talgai West or otherwise ? Answer.—The second part of Question 1 can we think only be answered by stating that in our opinion the bequest falls within the class of cases where a general charitable intention can be inferred and therefore if necessary can be carried out cy-pres. If after the matter has been investigated in proper proceedings taken for that purpose it is found that the amount of the bequest is as stated in the Special Case insufficient to build a church strictly in accordance with the directions given by the testator we think effect could be given to the testator's paramount intention although the particular mode of carrying it out might have to be modified but without fuller knowledge of the facts we are not prepared to say that those stated in the Special Case even if proved to the satisfaction of a Judge would justify the erection of a church in any place other than Hendon: AND WHEREAS certain other questions relative to the said action not necessary to be herein set out were answered by the said Full Court: AND WHEREAS the facts hereinbefore recited then were and still are true in substance and in fact: AND WHEREAS the district formerly known as West Talgai is now known as Ellinthorp : AND WHEREAS there has been a large increase in the number of members of the Church of England at Ellinthorp : AND WHEREAS such number is still increasing: AND WHEREAS at a meeting of the Synod of the Diocese of Brisbane being the body mentioned and referred to in *" The Church of England Acts, 1895 to 1901," holden at Brisbane on the twenty-third day of * 59 V. No. 15 and amending Acts. See 1911 Reprint, V. 4, pp. 4273 et seq.

1941. RELIGION. William Mitchner Estate Enabling Act. June one thousand nine hundred and thirty-nine the said Synod unanimously resolved and determined as follows That this Synod is firmly of the opinion that it is entirely desirable that a Church of England should be erected at Ellinthorp and that a Church of England at Hendon in this State is not at present required nor is the same ever likely to be required. This Synod in order to carry out as nearly as possible the generous bequest of the late Mr. William Mitchner, deceased, as expressed in his Will, therefore, requests the Diocesan Council to prepare a Bill with a view to the same being placed without further reference to Synod before and if possible passed by the Parliament of this State to enable the Trustees of the Will of the said the late William Mitchner to hand over to the Corporation of the Synod of the Diocese of Brisbane the sum of Seven hundred and fifty pounds (£750) together with all accumulations thereon, which sum as to Six hundred pounds (£600) thereof was bequeathed under the said Will for the erection at Hendon in this State of a Church of England in brick or stone, whilst the remainder that is to say the sum of One hundred and fifty pounds (£150) was bequeathed under the said Will for the purpose of providing the said church with a gallery, organ, seating accommodation and bell, for the purpose of enabling the said Corporation to erect a church at Ellinthorp aforesaid and for the purpose of equipping the same so far as such funds may extend according to plans to be approved of by the Trustees of such Will and by the Diocesan Council with such modifications and such alterations of the terms of the said Will in this respect as to the Diocesan Council may seem fit: s AND WHEREAS the said resolution was pursuant to sections fourteen and fifteen of *" The Church of England Act of 1895" duly recorded by the filing of the same at the office of the Supreme Court Brisbane on the seventh day of July one thousand nine hundred and thirty-nine: * 59 V. No. 15. See 1911 Reprint, v. 4, p. 4273. 281

282 RELIGION. Wilhiam Mitchner Estate Enabling Act. 6 GEo. VI. AND WHEREAS the said resolution is now in full force and effect: AND WHEREAS on the sixth day of July one thousand nine hundred and thirty-nine the Diocesan Council being the body appointed by the said Synod to act as a Council to the Archbishop and to assist him in conducting the business of the Synod at such times as the Synod should not be sitting duly resolved to take all such necessary steps for the obtaining of an Act of Parliament pursuant to the foregoing resolution of the said Synod: AND WHEREAS the said The Union Trustee Company of Australia Limited and the said Hubert Gladstone Deacon are willing that this Act should be passed: Schedule. AND WHEREAS The Corporation of the Synod of the Diocese of Brisbane being the body mentioned in *" The Church of England Act of 1895" are now the registered proprietors in fee simple of certain lands situated at Ellinthorp aforesaid and more particularly described in the Schedule hereto : AND WHEREAS the said Trustees of the said Will have from time to time set apart and invested and re-invested the said sum of £750: AND WHEREAS the moneys now in the hands of the said Trustees as the result of such investment and re-investments amount to the sum of £1,438 or thereabouts— Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows :- Short title. 1. This Act may be cited as " The William Mitchner Estate Enabling Act." Definition. Trustees. 2. In this Act, unless the context otherwise indicates, the following term has the meaning assigned to it that is to say :— "Trustees "—The said The Union Trustee Company of Australia Limited and Hubert * 59 V. No. 15. See 1911 Reprint, v. 4, p. 4273.

1941. RELIGION. Wifliarm Mitchner Estate Enabling Act. 283 Gladstone Deacon or other the Trustees or Trustee for the time being of the Will of the said William Mitchner deceased. Syno 3 d . oIft sthhealDl bioecleaswefoufl fBorristhbeanCeotropoerraetcitona cohf uthrcehcoatrpeinhoaLraezteiacottn Ellinthorp aforesaid in lieu of the church directed by Ellinthorp. the said Will of the said William Mitchner to be erected at Hendon aforesaid on the lands mentioned and described in the Schedule hereto. 4. It shall be lawful for the said the Diocesan Council Diocesan to cause plans and specifications for the church mentioned rrnreepliare in section three hereof to be drawn and prepared by any plans. competent architect or firm of architects practising his or their profession in this State and to approve the same. 5. It shall be lawful for the Trustees to approve the Trustees said plans and specifications after the same have been omfapylaanpsp. rove approved by the Diocesan Council. spec6if.icUatpioonns tbhyethaeppTrrouvstaelesotfhtehTersuasitdeeps lsahnasllapnady T W or h pu e ast n yees oBvreisrbtaontehtehCe osarpidorsautmionofof£ 7th5e0Shyenreoidnboefftohree Dreifoecreresde otof C m o o r n p e o y ra to ti . on. together with all accumulations thereon after deducting all sums due by way of costs, charges, and expenses and commission and the receipt in writing of the Treasurer of the Diocese of Brisbane for the time being shall be a good and sufficient discharge to the Trustees for the said moneys and the Trustees shall not be bound or required to see to the application nor be affected by the mis-application or non-application thereof. 7. The said moneys or such part thereof as may be Application required shall be used and applied by the Diocesan of moneys. Council for the purpose of erecting, furnishing, and equipping the church at Ellinthorp aforesaid in accordance with such plans and specifications so approved as aforesaid: Provided always that any part of the said moneys not applied as aforesaid shall be applied both as to capital or income by the Diocesan Council for the upkeep and maintenance of the said church or for such other purposes in connection with the said church as the Diocesan Council may determine.

284 RELIGION. Williaxin Mitchner Estate Enabling Act. 6 GEO. VI. 1941. Diocesan Council may make minor alterations in plans. 8. It shall be lawful for the Diocesan Council to make such minor alterations in the said plans and. specifications in the course of the erection of the said church its furnishing and equipment as to the Diocesan Council may seem meet. Corporation 9. It shall be lawful for The Corporation of the mcoasytsdaendduct Synod of the Diocese of Brisbane and the said Diocesan expenses. Council to deduct all reasonable costs, charges, and expenses incurred by them or either of them in the promoting of this Act or in complying with the provisions thereof from the moneys hereinbefore referred to. C a o A ns a tr . uction deem1e0d. tTohbeepinowadedrsiticoonntfoerarneddnboyt itnhissubAsctittusthioanllfboer the powers created by *" The Church of England Acts, 1895 to 1901," and any other Act or law in force in this State. SCHEDULE. Subdivisions 10 and 11 of Section 4 of Portion 59 in the county of Merivale, Parish of Dalrymple, containing 1 rood 38 2/10 perches and being the whole of the land contained in Certificate of Title No. 411994, Volume 2145, Folio 234. * 59 V. No. 15 and amending Acts. See 1911 Reprint, v. 4, pp. 4273 et seq.