Charities

CHARITIES
[Supplemented to January, 1999]

Scope Note
This title includes cases on what are charitable purposes; on the construction,
effect and
validity of charitable gifts and trusts, conditions and gifts over and the appli
cation of the
cy-pres doctrine; on the position, including the powers and duties, of trustees
of charities; on
the administration and control by the court of charitable trusts and gifts; and
on various
statutory provisions relating to charities.
The title does not include cases upon the definition of charities, charitable in
stitutions,
charitable purposes, and charitable gifts and bequests and similar phrases arisi
ng in
connexion with taxation and death or estate duties, which will be found in TAXES
AND
DUTIES, nor cases on the management of church trust property, which are included
in
CHURCHES AND RELIGIOUS ASSOCIATIONS.
Cases on the Settled Estates and Lands Acts and on Sir Samuel Romilly's Act (52
Geo III c
101) may be found in the earlier editions of this work.
Articles, Notes, Etc.
Articles. 1928. Misapplication of Funds of Charitable Trusts: 2 ALJ 194.
1939. Trusts for Encouragement of Atheism: 13 ALJ 349.
1940. Mixed Charitable and Non-Charitable Gifts: 14 ALJ 58.
1941. Trusts for Charitable and/or Non-Charitable Purposes: 15 ALJ 134.
1939-1941. Purpose Trusts: 2 Res Jud 118.
1949. Charitable Gifts for Religious Purposes: 23 ALJ 249. Some Observations on
Religious
Charity: 4 Res Jud 92.
1950. Mixed and Non-Charitable Gifts: 24 ALJ 239.
1951. Fifty years of Equity in New South Wales A Short Survey: 25 ALJ 344.
1953. Charitable Corporations Taking Income in Perpetuity: 26 ALJ 635; 27 ALJ 10
7.
1966. Devises and Bequests to Unincorporated Bodies: 2 Adel L Rev 336.
1968. Charities The Incidental Question: 6 MULR 35.
1973. Trusts Including Charitable and Non Charitable Purposes Special Statutor
y
Provisions: (1973) 47 ALJ 68.
1987. On Charity's Edge The Animal Welfare Trust 13 Mon LR 1.
Notes. 1934. The Property Law (Charitable Bequests) Act 1934 (Vic): 8 ALJ 218.
1949. Charitable Trusts "Edification of Mankind": 4 Res Jud 177.
1951. Charitable Trusts: 1 UQLJ, No 2, p 73.
1953. Reports of the Committee on the Law and Practice Relating to Charitable Tr
usts and
Report of the Select Committee to Investigate Foundations: 16 Mod LR 343.
1954. The Public Nature of Charitable Trusts: 28 Law Inst J 6. Extracts from Tax
ing Acts on
Gifts to Charities: 28 Law Inst J 7.
1955. Mixed Charitable and Non-Charitable Gifts: 29 ALJ 62.
1959. Condition Dependent on Conduct of Administration: 33 ALJ 54.
1960. Bequest to Parish Council "To Provide some Useful Memorial to Myself": 3
3 ALJ
374.
1961. Income Tax Charities Poor Relations not for Export: 35 ALJ 82.
1962. Power to Distribute Amongst Hospitals: 35 ALJ 347.
1964. Joinder of Attorney-General in Proceedings to test the validity of charita
ble trusts in a
will: 58 QJP 19.
1965. General Charitable Intention Circumvention of Eccentricity: 39 ALJ 240.
1972. Where Charity Begins (Publication of Law Reports): 46 ALJ 4.
Articles. 1989. Limitation Defences in Civil Proceedings: The Special Case of Ch
arity?:
[1989] NZLJ 362.
1990. An Anti-Roman Catholic Bias in the Law of Charity: [1990] Conv 34. Charita
ble
Trusts for the Saying of Masses: [1990] SJ (Supplement) 26. The Civil-law Founda
tion as a
Model for the Reform of Charitable Trusts Law: 64 ALJ 404.
1994. Administrative Efficiency in Charitable Trusts: 32 Law Soc J (No 3) 31. Ch
aritable
Trusts Legal Mechanisms for Change: 14 QL 181.
1995. Inquiry Into Charities A Legal Perspective: 69 Law Inst J 26.
1996. Charitable Trust Changes: [1996] CCH Tax Week 685. Fund-raising for Mainta
ined
Schools: the Charity Law Implications: [1995] Conv 453. Taking Stock of Charitie
s: 65 Aust
Accountant (No 11) 18.
1997. Professional Associations and Charitable Status (C E F Rickett): [1997] NZ
LJ 49.
[1-8] Pt I. Charitable Purposes.
[1] Divn 1. Generally
1. Charity charging for services Asylum and convalescent home .] A gift upo
n trust to
apply the property "for the purpose of founding endowing or assisting private in
stitutions or
homes in Tasmania or Victoria for the care and treatment of mentally afflicted p
ersons as my
trustees may in their absolute discretion select and to be paid or applied to or
for such objects
or institutions or homes if more than one in such proportions as my trustees may
think
proper", and a gift "for the purpose of founding endowing or assisting private h
omes for the
treatment of sick or convalescent persons in cases where such persons cannot be
treated in
their own homes and it would not be advisable to send or place them in a public
institution
asylum or hospital and for the treatment of such persons who may be suffering fr
om ill health
or constitutional weakness and who may desire to avail themselves of such homes
subject to
the parties so applying being approved of and of paying such fees as may be fixe
d by those
having control and management of the said homes", Held, both to be valid charita
ble gifts.
[(1909) 5 Tas LR 68, affd on different grounds.]
TAYLOR V TAYLOR (1910) 10 CLR 218; 16 ALR 129 (HC).
2. Charity charging for services Hospital Not for private gain .] A testa
trix
bequeathed one-half of the income of her residuary trust fund to the treasurer o
f St Luke's
Hospital "to be used for such general purposes in connection with the said hospi
tal as the
committee ... may think fit". The hospital, which was not carried on for private
gain, was
greatly assisted by public subscriptions. The hospital did not accommodate patie
nts unable to
pay fees, but it did accommodate some patients who paid less than their maintena
nce at the
hospital. Held, that the gift was a good charitable gift.
PERPETUAL TRUSTEE CO (LTD) V ST LUKE'S HOSPITAL (1939) 39 SR (NSW) 408;
56 WN 181 (NSW Sup Ct, Nicholas J). [Discussed in note, 13 ALJ 366.]
3. Charity charging for services Hospital Not for private gain .] St Vinc
ent's Private
Hospital was established and conducted by the Sisters of Charity, a congregation
governed by
their constitution under which they devote themselves without reward to good wor
ks. Daily
charges were substantial. On occasions patients were treated free or at reduced
fees. The
hospital was not run as a profit-making enterprise as if it were a commercial ve
nture. Any
surpluses made were applied for the purposes of the general hospital and also fo
r the general
purposes of the Sisters of Charity. Held: (1) A gift for the purposes of a hospi
tal is prima
facie a good charitable gift and this presumption was not displaced in this case
by the
circumstance that surpluses were made and used for the purposes of the Sisters o
f Charity,
for whatever the Sisters might be empowered to do with their general property, t
he trusts of
the will required them to use the gift for the purposes of the hospital. The pro
bability that the
necessity would appear in the course of the due administration of the trusts to
define more
clearly the purposes for which the income might be applied, referred to. (2) The
re was public
need for and benefit from the hospital; hence the gift was a good charitable gif
t. The
provision of medical facilities does not necessarily fail to be charitable merel
y because by
reason of expense they could only be used by persons of some means. To provide,
in
response to public need, medical treatment otherwise inaccessible but in its nat
ure expensive,
without any profit motive, might well be charitable: on the other hand to limit
admission to a
nursing home to the rich would not be so. The test is essentially one of public
benefit, and
indirect as well as direct benefit enters into the account. Perpetual Trustee Co
(Ltd) v St
Luke's Hospital (1939) 39 SR (NSW) 408, approved.
[(1966) 84 WN (Pt 1) (NSW) 337; [1966] 2 NSWR 232 affd on this point.]
LE CRAS V PERPETUAL TRUSTEE CO LTD (1967) 41 ALJR 213; 68 SR (NSW) 89; 87
WN (Pt 2) 53; [1968] ALR 161; [1967] 2 NSWR 706; [1969] 1 AC 514; [1967] 1 All E
R
915; sub noms RE RESCH'S WILL TRUSTS; LE CRAS V PERPETUAL TRUSTEE CO
LTD [1968] 3 WLR 1153 (PC).
4. Charity charging for services Hospital.] Quaere, whether the setting up
and
maintenance of a hospital intended to be entirely supported by the fees of patie
nts is a good
charitable trust.
RE HUGHES; THORNTON V CHURCH OF ENGLAND TRUSTS CORPORATION FOR
DIOCESE OF MELBOURNE [1934] VLR 345; [1935] ALR 19 (Vic Sup Ct, Mann J).
[Discussed in note, 8 ALJ 329.]
5. Charity charging for services Hospital.] A testator gave the residue of
his property
to the Mater Misericordiae Private Hospital, an institution conducted by an orde
r of Sisters of
Mercy, which received and tended patients for payment, and also administered to
and
received for treatment the sick poor who could make no payments. Held, that it w
as a good
charitable gift and that the receipt of the Sister of Mercy in charge of the hos
pital should be a
sufficient discharge to the trustees.
QUEENSLAND TRUSTEES LTD V GREEN [1911] QSR 105 (Q Sup Ct FC).
6. Charity charging for services Hospital.] Prima facie, any hospital is a
charity. A
hospital which makes a charge for its services does not cease to be a charity if
it is otherwise
charitable, unless the circumstances show that the hospital is an institution wh
ich is
conducted primarily for private gain.
RE SUTHERLAND; QUEENSLAND TRUSTEES LTD V A-G (Q) [1954] QSR 99 (Q Sup
Ct FC).
7. Charity charging for services Sanatorium .] A charitable trust means any
object of
public utility. The mere fact that a charge is made for the admission of patient
s to an
inebriate retreat does not make it the less a public charity.
[(1885) 11 VLR 617 affd.]
A-G (VIC) V M'CARTHY (1886) 12 VLR 535 (Vic Sup Ct FC).
8. Charity trading .] The conduct of trade by a charitable trust does not der
ogate from its
charitable character because any gain from the trading operations must be used i
n furthering
the purposes of the trust.
MCGARVIE SMITH INSTITUTE V CAMPBELLTOWN MUNICIPAL COUNCIL (1965)
83 WN (Pt 1) (NSW) 191; 11 LGRA 321; [1965] NSWR 1641 (NSW Land & Valuation Ct).

9. Gift to object supported out of public funds .] A bequest, the object of w
hich is for the
benefit of the public, is a valid charitable bequest, notwithstanding that the o
bject is
supported wholly or in part out of the public funds.
ROBISON V STUART (1891) 12 LR (NSW) Eq 47 (NSW Sup Ct, Owen CJ in Eq).
10. Gift to object supported out of public funds .] A gift that is otherwise
a charitable gift
does not cease to be so merely because the object of the gift is one that is mai
ntained entirely
out of Government funds.
Ct FC).
[2] Divn 2. Public Benefit
Public benevolent institutions see [8].
11. General rule .] In order that a gift, not being for the relief of poverty
, or the
advancement of education or religion, may constitute a valid charitable trust, i
t must be for
the benefit of the community, or of an appreciably important class of the commun
ity, and
need not be confined to poor persons only. Therefore, a bequest to "the trustees
of the
Repatriation Fund, or other similar fund for the benefit of New South Wales retu
rned
soldiers" is a good charitable bequest.
[(1921) 21 SR (NSW) 450; 38 WN 118 affd.]
VERGE V SOMERVILLE [1924] AC 496; (1924) 93 LJPC 173; 131 LT 107; 40 TLR 279;
68 SJ 419 (PC).
12. General rule And exception .] It is convenient to summarize the releva
nt legal
principles as established by the authorities. They are: 1. A trust or gift in or
der to be
charitable in the legal sense must be for the benefit of the public or a conside
rable section of
the public. To this rule there is an exception which cannot be referred to any p
rinciple, that a
trust or gift for the relief of poverty may be charitable even though it is limi
ted to some
aggregate of individuals ascertained by reference to some personal tie. 2. Benef
it to the
public is not in itself sufficient to render a trust charitable; the purpose of
the trust must fall
within the spirit and intendment of the preamble to the Statute of Elizabeth (43
Eliz I c 4);
and every purpose of religion is not necessarily within the legal conception of
charity. 3. A
gift for religious purposes must be treated as a gift for charitable purposes un
less the contrary
can be shown and a trust for the spread of propagation of the Gospel is a good c
haritable
trust. 4. If it is certain that the object is charity, and the property intended
for charity is
described with certainty, the trust will not fail because there is uncertainty c
oncerning the
particular charitable purpose. 5. If the mode of carrying out the trust set out
in the will is
impracticable or not defined with sufficient precision, the court must consider
if the mode
prescribed is so essential that the intention of charity cannot be separated fro
m it. If the
conclusion is that the mode is incidental and not essential, the court, in the e
xercise of its
administrative jurisdiction, will direct that a scheme be settled to carry out t
hat intention. If
the conclusion is that no paramount general intention can be inferred and the tr
ust is for a
particular charitable purpose which the court is satisfied cannot be carried int
o effect, the
trust fails, not because of uncertainty, but because of impracticability. The pr
oper conclusion
to be drawn depends upon the construction of the will in the light of admissible
extrinsic
circumstances. 6. When it is found that the trust is not practicable, and there
is no underlying
charitable purpose wider than the expressed trust, prima facie, there is a resul
ting trust and
the property is held for the residuary beneficiaries or the next of kin, as the
case may be. 7. It
is irrelevant to the question of construction that the trustees may not carry ou
t their duties
under the trust; "it is the right and the duty of [the] Attorney-General to inte
rvene and inform
the Court if the trustees fall short in their duty", and it is the duty of the A
ttorney-General, if
need be, to assist the court in the formulation of a scheme for the execution of
a charitable
trust.
RE FLATMAN; FLATMAN V BINNIE [1953] VLR 33; [1952] ALR 980 (Vic Sup Ct, Barry
J). [Discussed in note, 27 ALJ 380.]
13. Section of public Gift to "Presbyterians the descendants of those settled
in the Colony
hailing from or born in the North of Ireland" in trust to establish "college for
the education ...
of their youth" in specified religious standards .] A testator by will gave su
ccessive life
interests to his widow and nephews in a property, and by codicil gave the proper
ty on the
termination of the life interests "to the Presbyterians the descendants of those
settled in the
Colony hailing from or born in the North of Ireland to be held in trust for the
purpose of
establishing a college for the education and tuition of their youth in the stand
ards of the
Westminster Divines as taught in the Holy Scriptures". Held, that, although the
object of the
testator's bounty was, prima facie, a charitable object within the classificatio
n in
Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531, at p 58
3, the
qualifications for eligibility for education at the proposed college had the res
ult of making
beneficiaries under the trust nothing more than "a fluctuating body of private i
ndividuals",
and the gift failed because the necessary element of public benefit was lacking.

DAVIES V PERPETUAL TRUSTEE CO (LTD) (1959) 59 SR (NSW) 112; 76 WN
279;[1959] AC 439; [1959] 2 WLR 673; [1959] 2 All ER 128(PC). [Discussed in note
, 33
ALJ 34.]
14. Section of public Gift to schools restricted to children of freemasons .]
Held, that a
gift to schools restricted to the children of freemasons lacks the element of pu
blic benefit or
advantage that is necessary in order to secure exemption from estate duty under
s 8(5) of the
Estate Duty Assessment Act 1914 (Cth) as a gift for "public educational purposes
".
Discussion of the effect of s 8(8) of the Act in construing the expression "publ
ic educational
institution" in s 8(5), and the use in the construction of the expression "publi
c educational
institution" in s 8(5) of the interpretation given to the phrase "public educati
onal purposes" in
the law of charitable trusts. Per Dixon CJ, Fullagar and Kitto JJ The words in
s 8(5) would
receive an interpretation as wide as they properly possess under the head of equ
ity.
THOMPSON V COMMISSIONER OF TAXATION (1959) 102 CLR 315; 33 ALJR 384;
[1960] ALR 184 (HC).
15. Section of public Accommodation for adherents of Christian Science .] H
eld, that
if a faith is one to which any member of the public may, if he will, adhere, the
class of
adherents of that faith is to be regarded as a section of the public, so that th
e confining of
benefits to that class will not prevent a gift, or a purpose from being charitab
le. Per curiam
By reason of the fact that the Statute of Elizabeth (43 Eliz I c 4) when it re
fers to the
"reliefe of aged impotent and poore people" does not speak of gifts "to" or "for
" aged,
impotent or poor persons but only of gifts for "reliefe of" those classes, a gif
t to or for the
poor is not charitable unless it is in relief of poor people or, in other words,
in relief of the
needs occasioned by their poverty. Accordingly, the questions of freedom of memb
ers of the
public to adhere to the doctrines of Christian Science and whether its adherents
were a
considerable section of the community were concluded by the finding that there w
as benefit
to the community in the purposes for which premises subject of the litigation we
re used.
CITY OF HAWTHORN V VICTORIAN WELFARE ASSOCIATION [1970] VR 205;
(1969) 24 LGRA 289 (Vic Sup Ct FC). [Discussed in note, 44 ALJ 501.]
16. Section of public Land set apart for cemetery for relatives and employees
.] A
testator directed his trustees to set apart one acre of ground on his station pr
operty for a
cemetery for the use of his relatives and the station employees and their wives
and children.
Held, that this was not a good charitable trust.
CHESTERMAN V MITCHELL (1923) 24 SR (NSW) 108; 41 WN 11 (NSW Sup Ct, Harvey
J).
17. Section of public Gift to provide scholarships Preference to descendant
s of named
person .] A testator devised his residuary estate to the trustees of the Presb
yterian Church
of Australia "upon trust to apply the income thereof in perpetuity for the promo
tion and
encouragement of education in NSW in manner hereinafter appearing". The will pro
vided for
the establishment of scholarships to be awarded to students or intending student
s of any
primary or secondary school in NSW "provided that in making any such award prefe
rence
shall be given to any lineal descendant or descendants of my late father David E
dward and
failing any such descendant to any child or children of a minister or deceased m
inister of the
said Presbyterian Church and failing any such child or children to any then pres
ent or then
intending student of Scots College, Bellevue Hill, near Sydney". Held: (1) The p
articular
means indicated did not constitute a family trust but was for the benefit of a s
ection of the
community and constituted a valid charitable trust. (2) The words "failing any s
uch
descendant" in the proviso did not refer to a failure of issue of David Edward,
but meant that
if there were from time to time descendants of David Edward eligible and willing
to accept
the scholarships, they should be preferred.
PERMANENT TRUSTEE CO OF NSW LTD V PRESBYTERIAN CHURCH (NSW)
PROPERTY TRUST (1946) 64 WN (NSW) 8 (NSW Sup Ct, Roper J). [Discussed in note, 2
0
ALJ 432.]
18. Section of public Gift for "the setting up in life" of a boy "leaving the
Masonic
School" .] A testator made an indefinite gift of the income of property to the
Worshipful
Master for the time being of a named Masonic Lodge upon trust "for the advanceme
nt
preferment and benefit of a boy selected by him leaving the Masonic Baulkham Hil
ls School
for Boys ... to be paid in such manner as the said Worshipful Master shall think
fit for the
purpose of setting up in life the said boy either by furthering his education or
putting him into
some trade business or profession". At the dates of the will and of the death of
the testator
admission to the school was restricted by the "Regulations for the Government of
the Craft"
to the fatherless or virtually fatherless, but at those dates the "Regulations"
were liable to
amendment, and after the death of the testator the relevant "regulation" was ame
nded in such
a way as to make it possible that children who were not poor might be admitted t
o the school.
Held, that the gift was a trust for the relief of poverty, that the possible ben
eficiaries
constituted a class of the community, and accordingly that the gift was a valid
charitable
trust.
PERPETUAL TRUSTEE CO (LTD) V FERGUSON (1951) 51 SR (NSW) 256; 68 WN 236
(NSW Sup Ct, Sugerman J). [Discussed in note, 25 ALJ 471.]
19. Section of public Gift to provide annual educational bursary for apprenti
ce in named
area Gift for bursary for employee of specified company .] A testator divide
d half his
estate into 20 equal parts and directed that the income from two parts be applie
d as an annual
educational bursary for an engineering apprentice in the Bundaberg Engineering D
istrict
including sugar mills, the terms of the bursary to be in the absolute discretion
of a
committtee comprised as directed by the testator. As to two other parts he direc
ted that the
annual income be applied as an educational bursary for the benefit of an apprent
ice or cadet
or professional student employed by a specified company to be chosen by the dire
ctors of the
company, the bursary to be for such purposes and for such time as the directors
should in
their absolute discretion think fit. Held: (1) The bursary for an apprentice in
the Bundaberg
Engineering District was a valid charitable bequest; (2) The bursary for an empl
oyee of the
company was not a valid charitable bequest.
RE EVANS; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (Q) [1957] QSR 345 (Q
Sup Ct FC).
20. Trust to be performed in foreign country .] A testator, by will handwritt
en on a
printed form, made a specific bequest of his shares in a home unit company toget
her with the
contents of the unit which those shares entitled him to occupy. He then gave pec
uniary
legacies, listed what he described as "my assets" and provided that "the rest of
the money"
should be invested and the interest used as prize money for a musical competitio
n in
Australia for an orchestral work and a song cycle in alternate years. The will c
ontinued: "If
the interests are more than 1,000.0.0 thousand a year then a similar price should
be made
out for Vienna and should be paid under the same name Paul Lowin Preis under the
same
conditions to the best composition from a Viennese or Austrian Composer Price sh
ould not
be more than 1,000.0.0 thousand in one go, first to be paid in Australia and what
is more
should go to Vienna" [sic]. Held: (1) The disposition of "the rest of the money"
constituted a
gift of all the residuary estate remaining after specific gifts. (2) The bequest
for a musical
competition in Australia constituted a good charitable trust. (3) As there was a
sufficient
nexus between the advancement and encouragement of music in Austria and the bene
fit of a
substantial section of the public of New South Wales, the trust relating to the
excess of
income of over 1,000 per annum was a valid charitable trust. (4) In respect of th
e trust
providing for the excess of income over 1,000, the revealed intention of the test
ator was
that, whilst the entire trust fund should be retained and administered by the tr
ustee in New
south Wales any net excess over 1,000 should be sent to Vienna to be paid to the
winner of
a similar competition conducted there, open only to persons of Austrian birth an
d who were
Austrian nationals, wherever resident.
[[1965] NSWR 1624, varied.]
PERPETUAL TRUSTEE CO (LTD) V ROBINS (1967) 85 WN (Pt 1) (NSW) 403; sub nom
RE LOWIN; PERPETUAL TRUSTEE CO LTD V ROBINS [1967] 2 NSWR 140 (NSW Sup
Ct CA).
21. Trust to be performed in foreign country .] Held: (1) The fact that the p
urpose of a
trust is to be performed wholly outside the jurisdiction and in a foreign state
is of itself no
bar to its being a valid charitable trust for a purpose beneficial to the commun
ity generally
within the spirit and intendment of the preamble of the 43 Eliz 1 c 4. (2) A tru
st to be
performed in a foreign country will be regarded prima facie as for the public be
nefit if it is
beneficial to the foreign community and is not inimical to the general concept o
f legal
charity as understood in our law. Public policy would seem to be one reason why
such a trust
would not be valid as a charitable trust, and another may lie in the nature of t
he person in the
foreign country to whom the administration is given.
RE STONE; PERPETUAL TRUSTEE CO LTD V STONE (1970) 91 WN (NSW) 704 (NSW
Sup Ct, Helsham J). [Discussed in note, 44 ALJ 558.]
22. Trust to be performed in foreign country .] Held, that there is no rule o
f law that a
trust for a wholly foreign purpose cannot be a valid charitable trust according
to the law of
New South Wales despite the absence of any public benefit to the local community
.
Accordingly, a gift of residue in a will to trustees to be held "in trust for th
e Government of
the State of Israel for the advancement of education in that state" is a valid c
haritable trust.
LANDER V WHITBREAD [1982] 2 NSWLR 530 (NSW Sup Ct, Holland J).
23. Gift for preservation of native wild life .] A testatrix provided that th
e net balance of
her estate should be devoted to the preservation of native wild life (flora and
fauna) and
directed that her trustees might carry out her wishes "either by making direct d
onations to
one or more organizations concerned with wild life by promoting the preservation
of wild
life or in such other manner as [her] trustees [should] in their absolute discre
tion think fit".
On an application for a declaration that this bequest constituted a valid charit
able trust, Held:
(1) The question whether a particular purpose is for the benefit of the communit
y has to be
determined as of the time when the question falls to be answered and by referenc
e to relevant
matters existing at that time. (2) The language used in expressing the purposes
of the gift and
the objects to be benefited showed more than a mere intention to benefit wild li
fe in vacuo. It
indicated more than a mere concern for animal welfare, and extended to a concern
for the
welfare of the community in saving indigenous wild life from the encroachment of
human
activities; and this negatived an argument that no charitable intention was expr
essed. (3) The
preservation of "native" wild life was to be interpreted as meaning wild life, f
lora and fauna,
indigenous to Australia. (4) The evidence established that there was a real and
substantial
benefit to the community in the preservation of Australian wild life in aspects
which matched
in spirit purposes stated in the preamble to the Charitable Uses Act 1601 (43 El
iz I c 4). The
gift was accordingly for a valid charitable trust.
A-G (NSW) V SAWTELL [1978] 2 NSWLR 200 (NSW Sup Ct, Holland J).
[3-5] Divn 3. Relief of Aged, `Ìmpotent'' and Poor
[3] A. Aged
24. Gift for aged simpliciter .] The words "aged, impotent and poor people" i
n the
preamble to the Statute of Charitable Uses 1601 (Imp) (43 Eliz I c 4) are to be
read
disjunctively. Accordingly, a gift simply for the relief of the aged is a good c
haritable gift.
In the Wills of CLARK; PERRY V SALVATION ARMY (VICTORIA) PROPERTY TRUST
[1957] VR 171; [1957] ALR 538 (Vic Sup Ct, O'Bryan J). [Discussed in note, 31 AL
J 54.]
25. Gift for aged simpliciter .] While to make a trust for the aged charitabl
e it need not
necessarily be limited to the aged needy or the aged sick, there must be some el
ement,
quality, or characteristic pertaining to the class of aged people from or in res
pect of which
relief ought in the public interest to be given. A trust for aged persons simpli
citer is therefore
not a charitable trust.
NSW NURSING SERVICE & WELFARE ASSOCIATION FOR CHRISTIAN SCIENTISTS
V WILLOUGHBY MUNICIPAL COUNCIL (1968) 88 WN (Pt 1) (NSW) 75; 16 LGRA 65;
[1968] 2 NSWR 791 (NSW Land & Valuation Ct).
26. For benefit of aged generally Gift of land "for use in providing homes fo
r elderly
people" .] A testator provided that a property and land should "pass to the De
aconess'
Institute controlled by the Church of England in the Sydney Diocese to be used a
s a home for
retired Deaconesses, Nurses or elderly women". He also provided that another par
cel of land
should "be given to the Deaconess' Institute of Sydney Diocese for use in provid
ing homes
for elderly people". Held, that each gift was a valid charitable trust. A trust
to provide homes
for aged persons can be accepted, without more, as a valid charitable trust. The
addition of
some other element such as poverty, need or other adversity is not necessary. On
the other
hand, an additional limitation, for instance a limitation to the wealthy aged, w
ould destroy
the charitable nature of the proposed trust.
HILDER V CHURCH OF ENGLAND DEACONESS' INSTITUTION SYDNEY LTD [1973]
1 NSWLR 506 (NSW Sup Ct, Street CJ in Eq). [Discussed in note, 48 ALJ 322.]
27. For benefit of aged generally Retirement village for aged persons .] He
ld, that the
housing of aged persons as such is not a public charitable purpose, and, even if
it were, the
category of persons referred to in the Aged Persons Homes Act 1954 (Cth) is not
such as may
be legal objects of charity.
CHURCH OF ENGLAND PROPERTY TRUST, DIOCESE OF CANBERRA &
GOULBURN V IMLAY SHIRE COUNCIL [1971] 2 NSWLR 216; (1971) 25 LGRA 2 (NSW
Land & Valuation Ct).
28. For benefit of aged generally Trust for erecting and fitting out home for
aged by
Salvation Army .] A testatrix created a trust "to pay the balance" of the proc
eeds of the
sale of her real and personal property "to the Salvation Army Headquarters in Me
lbourne to
be used in and towards the erection of a home for aged men and women at Stawell"
. Held:
(1) The objects of the gift were aged persons who were in need of help, implying
such a
degree of poverty as to bring them within the first group of Lord Macnaghten's c
lassification
of charities in Commissioners of Income Tax v Pemsel [1891] AC 531, viz, trusts
for the
relief of poverty. The trust was therefore a valid charitable trust for that rea
son. (2) The trust
was also a valid charitable trust being a gift to the aged. The words "aged, imp
otent and poor
people" in the preamble to the Statute of Charitable Uses 1601 (Imp.) (43 Eliz.
I c. 4) are to
be read disjunctively.
In the Wills of Clark; Perry v Salvation Army (Victoria) Property Trust [1957] V
R 171;
[1957] ALR 538 (Vic Sup Ct, O'Bryan J). [Discussed in note, 31 ALJ 54.]
29. For benefit of aged generally Buildings for housing people of pensionable
age .]
The Local Government Act 1960 (WA), s 532(3)(c), provides: "Land is not rateable
property
if it is land used and occupied exclusively for charitable purposes". The applic
ant was a
non-profit body which administered an area of land and improvements on behalf of
the
registered proprietor, the Baptist Union of Western Australia Inc. Part of the i
mprovements
consisted of two buildings each being used for housing persons of pensionable ag
e. Residents
were selected from applicants capable of caring for themselves and in need of th
e
accommodation offered. Residents paid an "in-going donation" of a lump sum on be
ing
selected and weekly payments of an amount fixed by the applicant to meet costs o
f
management. In addition a building was under construction on the land to be used
as a home
for aged persons unable to look after themselves. Held: (1) The relief of the ag
ed is a
charitable purpose, without any necessity that those relieved should also be poo
r. (2) The
land was within the exemption of s 532(3)(c).
WEST AUSTRALIAN BAPTIST HOSPITAL & HOMES TRUST INC V CITY OF SOUTH
PERTH [1978] WAR 65; (1977) 40 LGRA 411 (WA Sup Ct FC). [Discussed in note, 52 A
LJ
41.]
30. For benefit of aged of particular locality Gift to "deserving aged people
" of certain
towns .] A bequest in the following words, "I give unto the deserving aged peo
ple of
Kadina, Wallaroo and Moonta the sum of three hundred pounds", is good as a gift
for a
charitable purpose.
RE STEELE; PUBLIC TRUSTEE V A-G (SA) [1925] SASR 272 (SA Sup Ct, Poole ACJ).
31. For benefit of aged of particular religion Accommodation for aged adheren
ts of
Christian Science .] A building belonging to the Victorian Welfare Association
was
divided into 20 apartments, a guest room and a social room. The apartments were
used for
accommodation at far lower than commercial rates for poor persons being women ov
er 60
and men over 65 who were selected by the Association from Christian Scientists a
nd
adherents of Christian Science. One apartment was used for a woman over 60 selec
ted by the
Association from the same group of persons but who was not poor. Her apartment w
as used
for providing relief to an aged person. There was benefit to the community in th
e purposes
for which the premises were used. It was claimed by the Association that the pre
mises were
exempt from rating as being "used exclusively for charitable purposes" within th
e exemption
created by s 251(1)(b)(ix) of the Local Government Act 1958 (Vic). Held: (1) If
a faith is one
to which any member of the public may, if he will, adhere, the class of adherent
s of that faith
is to be regarded as a section of the public, so that the confining of benefits
to that class will
not prevent a gift, or a purpose from being charitable. (2) The questions of fre
edom of
members of the public to adhere to the doctrines of Christian Science and whethe
r its
adherents were a considerable section of the community were concluded against th
e
municipality by the finding on case stated that there was benefit to the communi
ty in the
purposes for which the premises were used. (3) A gift made in relief of aged per
sons, in the
sense that it is in relief of the needs arising from old age (such as the need f
or protection
against the dangers and distresses incident to living alone), is charitable unle
ss some
limitation of the class of objects deprives it of that character; and it is not
necessary, in order
that it should be charitable, that those to benefit should be poor or impotent,
as well as aged.
(4) The premises were accordingly not ratable.
CITY OF HAWTHORN V VICTORIAN WELFARE ASSOCIATION [1970] VR 205;
(1969) 24 LGRA 289 (Vic Sup Ct FC). [Discussed in note, 44 ALJ 501.]
[4] B. `Ìmpotent''
32. Assistance to disabled Gift "to the blind" .] A will contained the foll
owing clause:
"I give devise and bequeath all my other properties to be disposed of and given
to the blind
and their children". Held: (1) There was a gift to the blind and an independent
gift to their
children. (2) A gift "to the blind" simpliciter is a good charitable gift. (3) E
ven if the gift to
the children of the blind were not charitable the gift to the blind was validate
d by the Trusts
Act 1915 (Vic), s 79.
RE BOND; BRENNAN V A-G (VIC) [1929] VLR 333; (1929) 35 ALR 300 (Vic Sup Ct,
Cussen J). [Discussed in note, 3 ALJ 363.]
33. Assistance to disabled Gift "to the blind" To Royal Victorian Institut
e for the
Blind .] The Royal Victorian Institute for the Blind is a charitable instituti
on because its
object is the relief of a substantial class of the impotent.
RE INMAN [1965] VR 238 (Vic Sup Ct, Gowans J). [Discussed in article, 47 ALJ 68;
and in
note, 39 ALJ 237.]
34. Assistance to disabled Through asylums or convalescent homes .] A gift
upon trust
to apply the property "for the purpose of founding endowing or assisting private
institutions
or homes in Tasmania or Victoria for the care and treatment of mentally afflicte
d persons as
my trustees may in their absolute discretion select and to be paid or applied to
or for such
objects or institutions or homes if more than one in such proportions as my trus
tees may
think proper", and a gift "for the purpose of founding endowing or assisting pri
vate homes for
the treatment of sick or convalescent persons in cases where such persons cannot
be treated
in their own homes and it would not be advisable to send or place them in a publ
ic institution
asylum or hospital and for the treatment of such persons who may be suffering fr
om ill health
or constitutional weakness and who may desire to avail themselves of such homes
subject to
the parties so applying being approved of and of paying such fees as may be fixe
d by those
having control and management of the said homes", Held, both to be valid charita
ble gifts.
[(1909) 5 Tas LR 68 affd on different grounds.]
35. Gift for erection of sanatorium .] The residue of the estate of a testato
r was given
"upon trust for the erection and/or benefit of a Sanatorium and/or Hospital in"
a foreign
country. Held, that in the context of the will, the erection of a hospital or sa
natorium was a
valid charitable object: (a) the word "sanatorium" must be taken to refer to an
institution
which though not providing all of the facilities generally available at a hospit
al, provides at
least some form of medical relief to persons in need of treatment, and (b) clear
ly enough the
intention of the testator was not that a building should be erected and no more,
but that it
should be erected for use by the inhabitants.
KYTHERIAN ASSOCIATION OF QUEENSLAND V SKLAVOS (1958) 101 CLR 56; 32
ALJR 275; [1959] Qd R 282; [1959] ALR 5 (HC). [Discussed in note, 32 ALJ 318.]
36. Gift for sanatorium For inebriate retreat .] Held, that the fact that a
charge is made
for admission of patients to an inebriate retreat does not make it the less a pu
blic charity.
37. Gift to existing hospital .] A gift of income was bequeathed by a homoeop
athic
practitioner to the Sydney Homoeopathic Hospital to the funds of which he had su
bscribed
during his lifetime. The hospital was founded to afford gratuitous medical and s
urgical aid
under the homoeopathic system to sick persons in destitute circumstances and to
others on
such terms of payment as determined by a Board. From its foundation in 1902 unti
l 1941 the
hospital was conducted as a homoeopathic hospital and visited by medical practit
ioners who
practised their profession in accordance with the principles of homoeopathy. Fro
m 1941 to
1945 homoeopathetic treatment was given to patients by the matron of the hospita
l but since
1945 no such treatment had been given at the hospital because no homoeopathic pr
actitioners
had sought to have patients admitted. There had always been at least one bed ava
ilable at the
hospital in case a homoeopathic practitioner should desire to have a patient adm
itted. The
hospital was incorporated under the Public Hospitals Act 1929 (NSW). Held: (1) I
n the
absence of evidence to the contrary, the court would assume that the object of t
he gift to the
hospital was for the benefit of the community and therefore charitable. (2) As t
here had not
been such a change in the object or purposes of the hospital as to destroy its i
dentity as it
existed with the institution named by the testator in his will, the gift had not
failed.
CONGREGATIONAL UNION (NSW) V THISTLETHWAYTE (1952) 87 CLR 375; 26 ALJ
335; [1952] ALR 729 (HC).
38. Gift to existing hospital Particularization of purposes of gift for gene
ral purposes of
private hospital .] Held, that a gift for the purposes of a hospital is prima
facie a good
charitable gift and this presumption was not displaced in this case by the circu
mstance that
surpluses were made and used for the purposes of the Sisters of Charity, for wha
tever the
Sisters might be empowered to do with their general property, the trusts of the
will required
them to use the gift for the purposes of the hospital. Held, also, that there wa
s public need for
and benefit from the hospital; hence the gift was a good charitable gift. The pr
ovision of
medical facilities does not necessarily fail to be charitable merely because by
reason of
expense they could only be used by persons of some means. To provide, in respons
e to public
need, medical treatment otherwise inaccessible but in its nature expensive, with
out any profit
motive, might well be charitable: on the other hand to limit admission to a nurs
ing home to
the rich would not be so. The test is essentially one of public benefit, and ind
irect as well as
direct benefit enters into the account.
[(1966) 84 WN (Pt 1) (NSW) 337; [1966] 2 NSWR 232, affd on this point.]
R
915; sub nom RE RESCH'S WILL TRUSTS; LE CRAS V PERPETUAL TRUSTEE CO LTD
[1968] 3 WLR 1153 (PC).
39. Gift to existing hospital .] A testatrix bequeathed one-half of the incom
e of her
residuary trust fund to the treasurer of St Luke's Hospital "to be used for such
general
purposes in connection with the said hospital as the committee ... may think fit
". The
hospital, which was not carried on for private gain, was greatly assisted by pub
lic
subscriptions. The hospital did not accommodate patients unable to pay fees, but
it did
accommodate some patients who paid less than their maintenance at the hospital.
Held, that
the gift was a good charitable gift.
40. Gift to existing hospital .] A testator bequeathed 3,000 to the United Gra
nd Lodge of
Freemasons of Victoria to erect, establish and equip a wing containing one four-
bed ward
and one two-bed ward at the Freemason's Intermediate Hospital. Held, that the gi
ft was a
good charitable gift inasmuch as the hospital existed for the relief of sufferin
g.
RE CHOWN; TEELE V UNIVERSITY OF MELBOURNE [1939] VLR 443; [1939] ALR
482 (Vic Sup Ct, Mann CJ).
41. Gift to existing hospital .] A testator gave the residue of his property
to the Mater
Misericordiae Private Hospital, an institution conducted by an order of Sisters
of Mercy,
which received and tended patients for payment, and also administered to and rec
eived for
treatment the sick poor who could make no payments. Held, that it was a good cha
ritable gift
and that the receipt of the Sister of Mercy in charge of the hospital should be
a sufficient
discharge to the trustees.
42. Gift to existing hospital .] By will, EP, who died in 1941, gave the bala
nce of her
residuary estate "for the Church of England in the Diocesan of Adelaide absolute
ly for the
benefit of the Sunday School Council and a Diocesan Church of England Hospital i
n equal
shares". Her sister, GP, who died in 1958, by will made in the same year gave he
r residuary
estate "for the Synod of the Church of England in the Diocese of Adelaide Incorp
orated for
the fund to establish and/or maintain a Church of England Hospital absolutely".
Another
sister, VP, died in 1963, and by her will made in 1962 gave her residuary estate
in similar
terms to the gift of GP. There was no Diocesan Church of England Hospital, altho
ugh a
convalescent hospital, and homes for the aged which provided nursing attention f
or inmates
of the homes, were conducted under the auspices of the Church. Held: (1) It was
permissible
to use the will of EP as a guide to the construction of the will of GP, and the
wills of EP and
GP as a guide to the construction of will of VP, and reading the three wills in
this way the
intention of the three testatrices was to create a fund for the establishment of
a new hospital,
and not to benefit any of the existing institutions, conducted under the auspice
s of the Church
of England. (2) The gifts for the creation of such a fund were valid charitable
gifts. (3) Upon
the evidence it was not possible to say whether it was practicable for the trust
s created by the
three wills to be carried out, and the Synod of the Church of England in the Dio
cese should
be required to indicate whether it was willing to accept the gifts on trust to e
stablish and
maintain a general Church of England hospital.
EXECUTOR TRUSTEE & AGENCY CO OF SA LTD V WARBEY [1971] SASR 255 (SA
Sup Ct, Bray CJ).
43. Gift for maternity home for young unmarried women .] Held, applying Taylo
r v
Taylor ( (1910) 10 CLR 218; 16 ALR 129) that the home contemplated by the testat
or being
in the nature of a hospital from the benefits of which the poor were not exclude
d, the gift was
a good charitable gift, and on the question of the gift being against public pol
icy as tending to
encourage immorality that the test to be applied was whether the existence of a
home would
be likely to induce any woman to sacrifice her virtue where she might otherwise
not have
done so. Applying that test, the gift would not tend to encourage immorality, an
d was,
therefore, good.
RE WYLD [1912] SALR 190 (SA Sup Ct, Murray J).
[5] C. Poor
44. General principle Whether relief of poor necessary Relief of sickness .
] Poverty
is not a necessary qualification in trusts beneficial to the community. The reli
ef of sickness is
a sufficient purpose without adding poverty.
R
915; sub nom RE RESCH'S WILL TRUSTS; LE CRAS V PERPETUAL TRUSTEE CO LTD
[1968] 3 WLR 1153 (PC).
45. For poor generally Gift to executors "to be distributed to the poor" .]
A gift by will
of the residue of the testator's estate to his executors "to be distributed to t
he poor" is a good
charitable gift.
IN THE WILL OF STACK; O'FLAHERTY V TOMLINSON (1902) 24 ALT 15; 8 ALR 129
(Vic Sup Ct, Hodges J).
46. For poor generally Bequest of sum "to be employed in relieving cases of n
eed and
distress and in assisting persons in indigent circumstances and in particular in
assisting and
relieving persons adversely affected by the effects of" World War II .] A test
ator
bequeathed the residue of his estate to the funds of a religious body "to be emp
loyed by them
in relieving cases of need and distress and in assisting persons in indigent cir
cumstances and
in particular (but not exclusively or in any way that shall limit their discreti
on) in assisting
and relieving persons who have been or shall be adversely affected by the effect
s of" World
War II. Held, that the bequest was a valid charitable bequest. The clause beginn
ing with "and
in particular" should be construed as merely giving a special example of persons
in need or in
distress and of persons in indigent circumstances; semble, if that clause stood
alone, it would
go beyond a valid charitable bequest.
MUIR V OPEN BRETHREN (1956) 96 CLR 166; 30 ALJ 171; [1956] ALR 419 (HC).
47. For poor generally Gift "for distribution to some mission to poor and nee
dy" .] A
testatrix gave to a legatee "all moneys from the Savings Bank or S C Ward & Co w
ho holds
shares and debentures, etc, also all furniture goods and chattels owned by me at
my death for
her own use and what is left at her death for distribution to some mission to po
or and needy
at her discretion". Held, that the gift over of what was left at the death of th
e legatee was a
valid charitable bequest, and the legatee had the power to select or appoint the
particular
mission to benefit, although her power of selection or appointment was limited t
o a mission
"to poor and needy".
In the Estate of Ward [1957] SASR 125 (SA Sup Ct, Ross J).
48. For poor of particular description Gift "for the benefit of the orphans w
hose fathers
fought with the Russian Army against Germany and Japan" in World War II .] A t
estator
after providing for the payment of annuities, directed that the whole of the net
income from
his estate be paid at least yearly to the Armenian General Benevolent Union, a b
ody
incorporated in Switzerland and having its permanent administrative seat in New
York, USA.
This body was directed to pay the annuities and to "use the balance if any of th
e said income
for the benefit of the orphans whose fathers fought with the Russian Army agains
t Germany
and Japan in the World War which ended last year". If the union so desired it wa
s authorized
to call for the transfer to it of the assets of the estate, and directions were
given as to the
mode of investment of such assets and for the setting up of a fund called the "P
ermanent
Trust Fund" which fund the union was to stand possessed of upon the trusts decla
red by the
will. Held, that there was a valid charitable trust for the children of fathers
of the Armenian
race who died on active service with the Russian army in the world war against G
ermany and
Japan which ended in 1945, if the children were under 21 years of age at the dat
e of the
testator's death and in need of assistance or protection and, per Williams, Webb
and Kitto JJ,
such children would remain orphans so long as they continued in need of assistan
ce, whether
they had attained 21 or not.
ARMENIAN GENERAL BENEVOLENT UNION V UNION TRUSTEE CO OF
AUSTRALIA LTD (1952) 87 CLR 597; 26 ALJ 392; sub nom RE BALAKIAN; ARMENIAN
GENERAL BENEVOLENT UNION V ANDREASSION [1952] ALR 781 (HC).
49. For poor of particular description Gift for amelioration of condition of
dependants of
any member or ex-member of naval, military or air forces .] A testator gave th
e whole
balance of his residuary estate to the Roman Catholic Archbishop of Melbourne to
be
distributed by him at discretion for any one or more of specified purposes, incl
uding "the
amelioration of the condition of the dependants of any member or ex-member of He
r
Majesty's naval military or air forces or the naval military or air forces of th
e
Commonwealth". Held: (1) The clause should not be read as if "in Victoria" or "i
n Australia"
appeared after the word "dependants". It followed that if the clause was valid t
he trust
property was not exempted from estate duty by s 8(5) of the Estate Duty Assessme
nt Act
1914 (Cth). (2) The clause was valid for the following reasons: (a) it was confi
ned to those
who were in need of assistance and were dependants of the persons in the classes
specified in
the clause and, therefore, the purpose which the clause expressed was the relief
of poverty;
(b) if on its proper construction the clause applied to all such dependants whet
her in need of
assistance or not, its operation was confined by s 131 of the Property Law Act 1
958 (Vic) to
the amelioration of the condition of necessitous dependants; (c) the clause expr
essed
purposes which included a charitable purpose independently of the relief of pove
rty, namely
that of ameliorating the condition of the dependants of the naval military or ai
r forces of the
Commonwealth, which was beneficial to the community and was within the fourth cl
ass of
the classification in Pemsel's Case [1891] AC 531, at p 583; (d) if the inclusio
n in the clause
of the reference to the dependants of members or ex-members of naval military or
air forces
of Her Majesty other than those of the Commonwealth had the result that the trus
t property
could be applied in a manner going beyond a valid charitable purpose of the kind
mentioned
in (c), s 131 operated to confine the application of the trust property, which t
he clause
permitted, to its application for the charitable purpose mentioned in (c).
[(1970) 17 FLR 39; [1970] VR 795; [1971] ALR 139; 1 ATR 820 affd.]
DOWNING V COMMISSIONER OF TAXATION (CTH) (1971) 125 CLR 185; 45 ALJR
513; 2 ATR 472; 71 ATC 4164; [1971] AEGR 66,067(HC). [Discussed in note, 9 UQLJ
118.]
50. For poor of particular description Gift for "the setting up in life" of b
oy "leaving the
Masonic School" .] A testator made an indefinite gift of the income of propert
y to the
Worshipful Master for the time being of a named Masonic Lodge upon trust "for th
e
advancement preferment and benefit of a boy selected by him leaving the Masonic
Baulkham
Hills School for Boys ... to be paid in such manner as the said Worshipful Maste
r shall think
fit for the purpose of setting up in life the said boy either by furthering his
education or
putting him into some trade business or profession". At the dates of the will an
d of the death
of the testator admission to the school was restricted by the "Regulations for t
he Government
of the Craft" to the fatherless or virtually fatherless, but at those dates the
"Regulations" were
liable to amendment, and after the death of the testator the relevant "regulatio
n" was
amended in such a way as to make it possible that children who were not poor mig
ht be
admitted to the school. Held, that the gift was a trust for the relief of povert
y, that the
possible beneficiaries constituted a class of the community, and accordingly tha
t the gift was
a valid charitable trust.
PERPETUAL TRUSTEE CO (LTD) V FERGUSON (1951) 51 SR (NSW) 256; 68 WN 236
(NSW Sup Ct, Sugerman J). [Discussed in note, 25 ALJ 471.]
51. For poor of particular description Gift to pay passage money to immigrant
s .] A
testatrix directed the expenditure of income of her estate "in paying the passag
e money to
Victoria of immigrants of good character" from her native town in England, such
immigrants
to be selected by a certain person. Held, that a valid charitable trust had been
created, as it
clearly appeared that the bequest was intended for the relief of poverty.
RE WALLACE; TRUSTEES EXECUTORS & AGENCY CO LTD V FATT [1908] VLR
636; (1908) 30 ALT 100; 14 ALR 502 (Vic Sup Ct, Hood J).
52. For poor of particular description Ex-servicemen being "protestants of Sc
ottish or
British descent" .] The testatrix left her estate upon trust after the death o
f an annuitant to
apply a third "at the discretion of my trustee for the benefit of an ex-member o
r ex-members
of the Australian Army, Naval or Air Forces to be selected by my trustee in his
absolute
discretion. And I direct my trustee that in making such selection as aforesaid h
e shall have
regard to the following matters: (i) The selected ex-member or ex-members of the
Australian
Army, Naval or Air Forces shall be a protestant of Scottish or British descent;
(ii) The
selected ex-member or ex-members of the Australian Army, Naval or Air Forces sha
ll in the
opinion of my trustee be in genuine need of financial assistance, and in particu
lar shall or
may require such assistance in order to pay a balance of purchase money owing on
his or
their home or farm property or to repay a mortgage on such home or farm property
". Held:
(1) The dominant intention of the gift was to relieve poverty and the language o
f the gift
would embrace cases of poverty. (2) The element of public benefit necessary for
a valid
charitable gift was present. (3) The language of the gift would embrace cases ot
her than
those of poverty and went beyond relief of poverty in a charitable sense. (4) Th
e expression
"in genuine need of financial assistance" clearly indicated a charitable intenti
on and the gift
was saved from invalidity.
RE GILLESPIE [1965] VR 402 (Vic Sup Ct, Little J). [Discussed in note, 39 ALJ 23
7.]
53. For poor of particular description Gift to provide relief to poor and nee
dy
Freemasons, their widows and children .] A testator made a gift to the Fund of
Benevolence of Freemasons, used in making annual grants to charitable institutio
ns in South
Australia, in providing relief for poor and needy Freemasons and poor and needy
widows and
children of deceased Freemasons. It was not contended that the order of Freemaso
ns was a
charitable society. Held, that the fund was a charitable institution.
RE VOSZ; PUBLIC TRUSTEE V STEELE [1926] SASR 218 (SA Sup Ct, Murray CJ).
54. For poor of particular description Trust to found or provide home for poo
r
Freemasons of particular Lodge .] A testator gave a fund upon trust "to found
or provide
thereout a home for poor and distressed Freemasons who shall be members or past
members
of the United Tradesmen Lodge No 4 in the constitution of South Australia". Held
: (1) While
there was no public benefit in the trust, the general rule stipulating public be
nefit as a
criterion of a valid charitable trust did not apply to trusts for the relief of
poverty where the
beneficiaries were not particularized but were merely a particular description o
f poor people.
(2) The trust was a valid charitable trust.
RE HILDITCH (1985) 39 SASR 469 (SA Sup Ct FC).
55. For poor of particular description Poor of particular locality Gift for
relief of
poverty in town in Germany .] A testator gave the income of two funds to the p
riest for the
time being at Lewin in Germany for distribution during the winter months amongst
such
children at Lewin as he should in his discretion approve, and for providing comf
orts and
clothing for the deserving children attending school during the winter months, i
n his absolute
discretion; and he gave the income of a fund to the mayor of Lewin for the time
being, to
provide and maintain a soup kitchen for the poor and needy. Held, that each bequ
est was
valid according to the law of Queensland.
RE MITCHNER; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (CTH) [NO 2]
[1922] QSR 252 (Q Sup Ct FC).
56. For poor of particular description Poor of particular locality Gift for
relief of
distress in Europe .] A testator left his residuary estate upon trust "for the
relief of distress
in Europe in the manner indicated by the pastor for the time being of the Luther
an Church,
Eastern Hill". Held, that the gift of residue constituted a valid charitable tru
st.
RE PIEPER; TRUSTEES EXECUTORS & AGENCY CO LTD V A-G (VIC) [1951] VLR
42; [1951] ALR 64 (Vic Sup Ct, Smith J). [Discussed in note, 25 ALJ 471.]
57. For poor of particular description Poor of particular occupation Gift f
or "old
members of 37th Battalion" .] A testatrix made a bequest of a small annuity in
perpetuity
to the Returned Sailors, Soldiers and Airmen's Imperial League "to be used as fa
r as possible,
as a special gift to old members of the 37th Battalion". Held, that age alone is
a sufficient
qualification to constitute a good charitable gift; therefore the gift should be
upheld. It might
also be upheld by reason of the smallness of the amount given as a gift to the p
oor.
RE LITCHFIELD; PUBLIC TRUSTEE V MILLETT (1961) 2 FLR 454; sub nom RE
LITCHFIELD [1961] ALR 750 (NT Sup Ct, Joske J).
58. For poor of particular description Poor relations Gift to "next of kin
... in poor and
needy circumstances" .] A testatrix provided that income from her estate shoul
d be
accumulated until 21 years from the death of the last survivor of her children a
nd that the
capital should then go to her female grandchildren, or, in default, to her male
grandchildren
then surviving. If "at the expiration of the period of accumulation" there were
no
grandchildren surviving, the trustees were to ascertain "who of my next of kin (
not being next
of kin on the side of my late husband) in whatever degree are in poor and needy
circumstances and upon such next of kin being ascertained" the trustees were to
convert the
assets and distribute the proceeds equally between such next of kin. In proceedi
ngs in 1930
the court held that, by s 31 of the Conveyancing Act 1919 (NSW) the accumulation
of
income directed by the deceased would cease 21 years after her death and that th
e income
directed to be accumulated thereafter was undisposed of by the will and would pa
ss to the
next of kin as on an intestacy. The last of the deceased's children died on 2 Ju
ly 1971. There
were female and male grandchildren surviving. Held: (1) No acceleration of gifts
in a will
limited to take effect at the conclusion of an invalid period of accumulation of
income is
brought about by reason of the invalidity of the period and such gifts will not
take effect until
the expiry of the period even though invalid, with the result that the gifts to
grandchildren
were not accelerated to 21 years from the death of the deceased. (2) The words "
next of kin"
in the gift over meant "kinsmen" or "relatives" and not statutory next of kin an
d this gift was
intended to be a gift to the relations in poor and needy circumstances of the te
statrix
(excluding relations of her husband), and as "poor relations" is a well known co
ncept in the
law the gift was a valid charitable trust and not void for uncertainty. (3) The
relevant date for
the application of the modern rule against perpetuities to charitable trusts is
the date upon
which the trust property becomes devoted to the charitable purpose, not the date
upon which
the property will vest in the persons chosen as the means of giving effect to th
at purpose, and
accordingly the trust for the poor relations was not to arise only when the poor
relations were
ascertained but when the contingency of having no surviving grandchildren occurr
ed and the
trust did not offend the rule against perpetuities.
IN THE WILL OF SCALES; PERMANENT TRUSTEE CO OF NEW SOUTH WALES LTD
V FREEMAN [1972] 2 NSWLR 108 (NSW Sup Ct, Helsham J).
543. Relief of poor No requirement of direct cash distribution Some monetar
y
contribution by recipients not inconsistent with charitable purpose .] Held: (
1) A person
who had paid stamp duty to the Commissioner under a mistake of law could have a
right of
recoupment on general law restitutionary principles. (2) It could not be doubted
that the
legislature could by legislation oust a right of restitution otherwise available
under the
general law. (3) "Charity" in its legal sense comprises four principal divisions
including
trusts for the relief of poverty. The relief of poverty may be achieved in more
than one way.
That is, a direct cash distribution is not required. There must be an element of
bounty in
order that a disposition be in relief of poverty. But it does not follow that th
e recipients of the
disposition might not be obliged to make some monetary contribution to what is p
rovided.
(4) In circumstances in which the taxpayer was a company set up for the charitab
le purpose
of relief of poverty, it was entitled to a refund of stamp duty paid by it.
COMMON EQUITY HOUSING LTD V COMMISSIONER OF STATE REVENUE (VIC)
(1996) 33 ATR 77; 96 ATC 4,598 (Vic Sup Ct, Ashley J).
[6] Divn 4. Advancement of Religion
59. General religious purposes Gift for preaching of Gospel .] A testator b
equeathed
money to two of his sons and directed that it should "constitute a fund in their
hands to
subsidise the preaching of the Gospel of Our Lord Jesus Christ as they in their
wisdom are
led by Him but without any restrictions as to the mode in which it shall be mana
ged and
expended or the person or persons to whom it shall be paid so long as they see i
t is used to
enable the Gospel to be preached independently of the recognised Churches". One
of the sons
died before any steps had been taken to distribute the money. Held, that the beq
uest
constituted a valid charitable trust for the preaching of the Gospel, and that t
he means
envisaged by the testator for achieving the purpose, namely that the two sons sh
ould agree
upon subsidizing some mode of preaching of the Gospel independently of the recog
nized
churches, was not an essential element in the trust.
60. General religious purposes Gift "for or towards Christian work" .] A be
quest of
one-eighth share of a residuary estate "to be paid and applied either for or tow
ards Christian
work, chiefly in Queensland, or for the assistance of the poor and needy there o
r elsewhere",
Held, to be a valid charitable gift.
BROWN V WHITTY; RE BROWN (1901) 11 QLJ 133 (Q Sup Ct FC).
61. Gift to Presiding Sister of Deaconesses' Home to be applied "entirely at he
r own
discretion" and free from any ecclesiastical control .] A testator gave the in
come from a
share of his residuary estate to "the Presiding Sister for the time being of the
Church of
England Deaconesses' Home at Sale for so long as the Order of Deaconesses at Sal
e
continues to exist as a charitable and religious organization, such income to be
dealt with by
such Presiding Sister entirely at her own discretion and free from any control b
y the Bishop
of Sale or any other ecclesiastical authority". The work carried on by the deaco
nesses was
religious and charitable and, by their constitution, they were subject to contro
l as to temporal
matters by the ecclesiastical authorities, but it did not appear how far the aut
horities had
exercised such control. Held: (1) The gift was to persons in succession as presi
ding sisters of
the organization, that the Presiding Sister's discretion was limited to dealing
with the income
within the charitable and religious purposes with which the deaconesses' work wa
s
concerned, and that the bequest was a good charitable gift for so long as the or
ganization
continued to exist as a charitable and religious organization. (2) Although the
ecclesiastical
authorities might make it impossible for the Presiding Sister to apply the money
entirely at
her own discretion, the trustees were not bound to inquire as to this.
RE A'BECKETT; ALLARD V LAMBERT [1941] VLR 283; [1941] ALR 332 (Vic Sup Ct,
Gavan Duffy J).
62. Gift to "any deserving Roman Catholic institution" .] A testator by a cod
icil to his will
left portion of his estate to his trustees upon trust "at their discretion to pa
y the same to any
deserving Roman Catholic institution". Held: (1) The trust failed for uncertaint
y. (2) The
words used by the testator did not create a charitable trust.
RE BOLAND; BOLAND V BOLAND [1950] QSR 45 (Q Sup Ct FC).
63. Gift for masses .] Held, that the Statute of Chantries (1 Edw VI c 14) is
not in force in
the Australian States and consequently a gift for masses for the repose of the s
oul of a
particular person is not a gift for a superstitious use. Such a gift is charitab
le, and therefore is
not void as a perpetuity.
[[1917] VLR 112 revd.]
NELAN V DOWNES (1917) 23 CLR 546; 23 ALR 354; sub nom IN THE WILL OF
CHILDS; NELAN V DOWNES [1917] VLR 621 (HC).
64. Gift for masses .] A legacy for masses for the testator's soul is not voi
d in New South
Wales as being a superstitious use.
RE HARNETT; CONDON V HARNETT (1907) 7 SR (NSW) 463; 24 WN 104 (NSW Sup
Ct, Simpson CJ in Eq).
RE KEENAN; FORD V KEENAN (1913) 30 WN (NSW) 214 (NSW Sup Ct, Simpson CJ in
Eq). [Discussed in note, 12 ALJ 468.]
65. Gift for masses .] A testator disposed of his estate to his son "subject
to the following
conditions", and after making provision for his widow his will stipulated: "My e
xecutors also
will make provision that one mass shall be said for the repose of my soul once e
very week
until they hand over the property to my son, when he attains the age of thirty y
ears, when he
shall take the place of the executors and have the masses said weekly for ever,
and these are
the conditions I make". Held, that the direction in the will to make provision f
or the masses
created a valid charitable trust and that in effect it imposed a charge upon the
testator's
property.
THOMSON V WHITTARD (1925) 25 SR (NSW) 430; 42 WN 132 (NSW Sup Ct, Long
Innes J).
66. Gift for masses .] A gift for saying masses is a valid charitable gift.
PUBLIC TRUSTEE V SMITH (1944) 44 SR (NSW) 348; 61 WN 206 (NSW Sup Ct, Roper
J).
67. Gift for masses .] A bequest to a Roman Catholic priest for masses for th
e testator's
soul is not void as being for a superstitious use. The 1 Edw VI c 14 (Imp), bein
g passed in the
interests of the Reforming Church, could not reasonably be applied to the Colony
of New
South Wales at the time of the passing of the Australian Courts Act 1828 (9 Geo
IV c 83),
and was, therefore, not in force in Victoria.
In the Will of PURCELL (1895) 21 VLR 249; 17 ALT 67; 1 ALR 57 (Vic Sup Ct, Hodge
s, J).
68. Gift for masses Marshalling assets in favour of charitable gift .] A t
estatrix
appointed an executor, directed payment of her debts and testamentary expenses,
disposed of
all her realty by two specific devises, and stipulated that: "I want 300 for mass
es to be said
and sent from time to time to monasteries and priests (see file hanging up in wa
rdrobe). Also
remember to have some masses said for my dear father, mother and darling sister
Mary as
well as myself ... My brother TMB can pay for those masses out of his rents as h
e thinks fit ...
It may take two years to have them all said or more but do not forget my dear pe
ople. Have
novena of masses said at Sacred Heart Monastery Kensington Sydney also St Joseph
's Oxford
Park Brisbane". Held, that the will created a good precatory trust for the perfo
rmance of
masses, but no charge upon the realty in respect of such trust. A testator appoi
nted an
executor, directed payment of his debts and testamentary expenses, devised a por
tion of his
real estate to a devisee who predeceased him, and stipulated that: "I want 500 to
be paid out
of my estate for masses to be said by priests and monasteries from time to time"
. Held, that
the will created a good precatory trust. In order to obviate the expense of sett
ling a scheme,
the court directed that the times and places of the performance of masses provid
ed for by
both trusts should be left in the discretion of the common executor of both will
s. Held,
further, that a gift for masses is a good charitable gift, and that in Queenslan
d assets may be
marshalled in favour of such a gift.
RE BYRNE'S WILL; BYRNE V BYRNE [1938] QSR 346 (Q Sup Ct FC). [Discussed in
note, 12 ALJ 299.]
69. Religious buildings Community village for aged .] The Local Government
Act
1919 (NSW), s 132(1)(d), exempts land from liability to rates where it belongs t
o any "public
charity" and is used by and for the purposes of the charity. The Presbyterian Ch
urch (New
South Wales) Property Trust was incorporated under the Presbyterian Church (New
South
Wales) Property Trust Act 1936, as amended by Acts of similar name of 1956 and 1
959. By s
9 of the principal Act all property in New South Wales of the Presbyterian Churc
h of
Australia was vested in the trust to be dealt with, subject to any express trust
, on the terms
and with the powers of the Act. Under s 14 the General Assembly of the Church mi
ght give
the Trustees (constituting the Trust) directions with respect to property held b
y them. The
Trust was the registered proprietor of land on which were erected a number of ho
me units
occupied by aged persons, each of whom paid a weekly service fee and might have
donated a
sum of money. Neither religious creed nor poverty was a qualification for occupa
tion of a
unit. The project was conducted by the Social Services Department of the Church.
The Land
and Valuation Court held that the land was exempted from liability for rates und
er s
132(1)(d) of the Local Government Act, having found that maintenance of the home
was
conducive to the advancement of religion. On appeal by stated case, Held: (1) Th
e Land and
Valuation Court had not made any error of law in so construing the Act as to hol
d that the
land was held by the Trust for the purposes of the Presbyterian Church. The mani
fest
intention of the Act regarded as a whole was decisive in this regard, and it was
to be implied
that the Trust could use the land only for purposes which were those of the Chur
ch. (2) The
trial judge was entitled to conclude that the Presbyterian Church was an organiz
ation whose
main purpose was the advancement of religion, although it had incidental and anc
illary
purposes of a non-charitable kind. If a body holds property on trust for purpose
s of that kind
it is proper to describe it as a public charity. (3) The land was being used by
the Trust as a
public charity for the purposes thereof, and the appeal must be dismissed.
[[1977] 1 NSWLR 620; (1977) 35 LGRA 201, affd.]
PRESBYTERIAN CHURCH (NEW SOUTH WALES) PROPERTY TRUST V RYDE
MUNICIPAL COUNCIL [1978] 2 NSWLR 387; sub nom RYDE MUNICIPAL COUNCIL V
PRESBYTERIAN CHURCH (NSW) PROPERTY TRUST (1978) 38 LGRA 199 (NSW Sup
Ct CA).
70. Religious buildings Extensions .] A testator left his residuary estate
to five named
churches "in and for the building of extensions to the said churches and chapels
". He directed
that portion of this residuary gift in each case be spent on a new high altar re
redos. In at least
two cases, the churches named occupied the whole of the site on which they were
built and
extensions, in the literal sense, were not possible. Also as far as the gifts fo
r the reredos were
concerned, in at least one church it would be impracticable to comply with the t
estator's
direction. Held: (1) In construing the word "extensions" the court should take i
nto
consideration surrounding relevant circumstances including the fact that the tes
tator took a
great interest in the churches in question and was aware of the extent of the ch
urch buildings
in relation to their respective sites. (2) In the will, the word "extensions" co
vered alterations,
renovations, restorations or additions to the fabric of the church, either inter
nally or
externally. (3) Even if the direction concerning the high altar reredos might no
t be capable of
being implemented, each church was entitled to its full share of residue and mig
ht use the
money for some purpose similar to the purpose the testator had in mind.
RE BECK; HAFFENDEN V DOUGLASS [1967] 2 NSWR 91 (NSW Sup Ct, Hardie J).
71. Religious buildings Building used for residence of priest .] A building
erected by a
religious body as a convenient residence for priests who have to minister in a p
articular
church can be said to be held upon a trust for the advancement of religion or fo
r other
purposes beneficial to the community.
[Affd on other grounds by HC see (1920) 28 CLR 203; 21 SR (NSW) 113; 37 WN 192
; 5
LGR 90; 27 ALR 47.]
SYDNEY MUNICIPAL COUNCIL V KELLY (1920) 20 SR (NSW) 107; 37 WN 22; 5 LGR
60 (NSW Sup Ct, Street CJ in Eq).
72. Religious buildings Proposed rebuilding of church fabric Church window
.] A
testator, after a number of bequests, directed the balance of all money to be gi
ven to St
Andrew's Cathedral chapter for a new cathedral when they should build, and for a
window.
There was no general charitable intention disclosed by the will. There was evide
nce that
proposals for rebuilding the cathedral had been considered, but nothing was defi
nitely
contemplated, and it was quite uncertain what period of time would elapse before
any such
proposals would be carried out. Held, that the first part of the trust, for the
new cathedral,
failed, but that the second part of the trust for a window, was a valid charitab
le gift, and that
a moiety of the fund should be given to the chapter for this object.
MUIR V ARCHDALL (1918) 19 SR (NSW) 10; 36 WN 4 (NSW Sup Ct, Harvey J).
73. Religious buildings Gift for erection of church .] A gift "to the trust
ees of the
Presbyterian Church at Sale" to be applied (without any limitation of time) in b
uilding a
church, but solely on condition that it should be built in a particular position
on a particular
piece of land, with a proviso that otherwise the gift should lapse into residue,
is not a good
bequest to a charity. The condition is not a condition subsequent.
RE MACLACHLAN; MACLACHLAN V CAMPBELL (1900) 26 VLR 548; 22 ALT 121; 6
ALR 243 (Vic Sup Ct, Hood J).
74. Religious buildings Religious retreats .] The Local Government Act 1958
(Vic), s
251(1)(b) excludes from ratable property land used exclusively for "charitable p
urposes".
The plaintiff's land was occupied and used by a religious order which conducted
a
retreat-house on land within the defendant's municipal district. The plaintiff s
ought a
declaration that this land was not ratable because it was used for a charitable
purpose,
namely, the advancement of religion. The activities at the retreat-house consist
ed principally
of the conduct of retreats during which laymen resided upon the premises for sho
rt periods,
engaged in prayer and meditation, and attended services and lectures. Held: (1)
When the Act
grants exemptions from rating if land is used for defined purposes, the purposes
referred to
must be the purposes of the occupier, to be determined by a consideration and
characterization of what the occupier does or authorizes or permits upon the lan
d. (2) The
conduct of retreats on the plaintiff's land fell within the meaning of the phras
e "the
advancement of religion" so that the land was used for charitable purposes and t
hus not
ratable.
ASSOCIATION OF FRANCISCAN ORDER OF FRIARS MINOR V CITY OF KEW [1967]
VR 732; (1967) 30 LGRA 384 (Vic Sup Ct, Lush J). [Discussed in note, 42 ALJ 22.]

75. Religious buildings Gift for gallery, organ, seating and bell at specifie
d church .]
The testator gave out of residuary estate 750 for the erection at Hendon of a Chu
rch of
England and the providing of a gallery, organ, seating accommodation, and a bell
. Held, a
good bequest, and that if it was found that the amount of the bequest was insuff
icient to build
a church strictly in accordance with the directions given by the testator, the c
ourt would in
proper proceedings direct a scheme cy-pres.
RE MITCHNER; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (CTH) [1922] QSR
39 (Q Sup Ct FC).
76. Religious buildings Structures embellishing shelter shed at cemetery Pe
rsonal
memorial included .] A testator directed his trustees to stand possessed of 150
0, part of
his residuary trust funds, "upon trust to pay the same to the trustees for the t
ime being of the
General Cemetery at Warwick for the following purposes: Firstly in erecting a
shelter
shed of brick or like material at the said cemetery such shelter shed to contain
in the left
hand wing thereof a marble monument with an emblem of a simple marble cross ther
eon, the
said monument to be surrounded with iron railings and to be inscribed as follows
: `This
shelter shed is the gift of William Mitchner for the benefit of the Public. Born
August 2nd
1841, died .' Secondly, in providing within the shelter shed a suitable vault t
o contain my
body. Thirdly, in containing a bust in plaster of myself to be placed upon or ne
ar the said
vault. Fourthly, in providing the said shelter shed with appropriate steeple, be
ll, and belfry.
And I declare that of the said sum of 1500 the sum of ((c))150 shall be expended
by the said
trustees of the Warwick Cemetery in the erection of the said vault and in the pu
rchase of the
said bust. And that they shall expend not less than 100 or more than ((c))150 in
the purchase
of the said bell. And that they shall retain and invest the sum of 200 and apply
the income
thereof in and towards the maintenance of the said shelter shed vault and bust".
Held, the
200 was not bequeathed as a separate gift, but was part of the 1500, and that the
gift was
valid. The sum of 1500 was insufficient for the purpose of carrying out the objec
ts of the
bequests in full, but those objects could be carried out in a modified form. Hel
d, that as the
will showed a general charitable intention to have certain structures erected an
d maintained
and if the money appropriated to those purposes was insufficient to enable effec
t to be given
to the general intention mod et forma, the general intention should be carried o
ut, although
the particular mode of carrying it out prescribed by the testator might prove im
practicable.
39 (Q Sup Ct FC).
77. Religious denominations, associations and congregations Gift to Sydney So
ciety of
the New Church .] A testator bequeathed to the Sydney Society of the New Churc
h
income in perpetuity and directed his trustees to apply 40 per cent for church p
urposes and
60 per cent for establishing lending libraries in such country towns as they sho
uld approve
and that they should have the right to cause an inspection of the books, records
and accounts
of the institution with respect to its use of the gift. All four objects of the
Society were
religious. Its articles of association empowered the Society to circulate the th
eological works
of a named author and other specified religious works and writings. There was ev
idence that
the Society maintained a church in Sydney where the rites of the church were per
formed and
services conducted which, inferentially, were available to the public generally.
The activities
of the Society were not confined to benefiting its members. Held, that the gift
to the Society
was a valid charitable gift.
335; [1952] ALR 729 (HC).
78. Religious denominations, associations and congregations Gift to Congregat
ional
Union of New South Wales .] The fundamental purpose of the Congregational Unio
n of
New South Wales was the advancement of religion. The Union could create, maintai
n and
improve educational, religious and philanthropic agencies only to the extent to
which such
agencies were conducive to the achievement of that purpose. The Union's other ob
ject was to
preserve civil liberty so that congregationalists might worship according to the
ir religious
beliefs. Held, that gifts of income to be applied by the committe of the Union f
or the benefit
of the Union as the committee should think proper were valid charitable gifts.
335; [1952] ALR 729 (HC).
79. Religious denominations, associations and congregations Religious denomin
ations,
associations and congregations Gift to Roman Catholic religious orders .] Th
e testator
devised to the Abbot of Mount Malleray, Ireland, or his successors, land in New
South
Wales, to be held by him and his successors in trust for the religious order of
Cistercians, and
in the event of the offer not being accepted, he devised the land to the Prior o
f the
Redemptorist Fathers, of Waratah, NSW, or his successors, in trust for the monks
of the
order of Our Holy Redeemer. The testator also ordered that the same property cou
ld never be
sold, and must always remain the property of the Roman Catholic Church. Held: (1
) The
testator intended to create a perpetuity, and did not intend the land to become
the personal
property of the individual members of the religious orders at the time of his de
ath. (2) A gift
of property to a voluntary association may be valid as a charitable gift, if the
court on inquiry
finds that the association exists to carry on and is carrying out charitable wor
ks. (3) Applying
this test the gift to the community of the Cistercian order was not, and that th
e gift to the
Redemptorist order was, a good charitable trust.
GLEESON V PHELAN (1914) 15 SR (NSW) 30; 32 WN 2 (NSW Sup Ct, Harvey J).
80. Religious denominations, associations and congregations Gift to three chu
rches .]
A testatrix gave the residue of her estate to be divided between the churches of
three
different denominations at Goulburn, and declared that the legacies should be ap
plied to such
purposes as indicated "nominators", respectively representing those churches, sh
ould as to
the share of each church in their absolute discretion think fit. Held, that the
gifts to the
named churches were gifts to religious institutions for religious purposes and,
applying the
benignant rule of construction, were valid charitable gifts.
RE PRICE; PRICE V CHURCH OF ENGLAND PROPERTY TRUST DIOCESE OF
GOULBURN (1935) 35 SR (NSW) 444; 52 WN 139 (NSW Sup Ct, Long Innes CJ in Eq).
81. Religious denominations, associations and congregations Gift of income to
Adelaide
Hebrew Congregation in perpetuity .] A testator gave all his freehold properti
es (subject
to a life interest in favour of his wife) upon trust to establish the "M de Veda
s Perpetual
Synagogue Fund" and to pay out of the net income arising the cost of administeri
ng the fund
and the balance "to the Adelaide Hebrew Congregation in perpetuity". The Adelaid
e Hebrew
Congregation was an unincorporated association representing the orthodox Jewish
congregation in the State of South Australia. Its main concerns were the religio
us and
educational needs of adherents of the Jewish faith. Held: (1) The gift was not a
gift to the
individual members of the Adelaide Hebrew Congregation. (2) The subject matter o
f the gift
consisted of an equitable right, in perpetuity, to annual payments of the net in
come of the
Fund after deducting the administrative expenses referred to in the will, with t
he intention
that the corpus should remain in the hands of the testator's trustee. (3) The gi
ft was for the
purposes of the work of the Adelaide Hebrew Congregation, those purposes were, a
t the
material time, either religious or educational, and the gift was therefore a val
id charitable
gift.
RE DE VEDAS [1971] SASR 169 (SA Sup Ct, Wells J).
82. Religious denominations, associations and congregations Gift to Salvation
Army for
its work .] A testator left the income of his residuary estate to the Salvatio
n Army for its
work in part of Tasmania. As set forth in the Salvation Army (Tasmania) Property
Trust Act
1930 (Tas), the objects of the Salvation Army besides religious work included "t
he social,
temporal, and moral welfare of ... persons who [are] destitute or vicious or fee
ble-minded ...
and other charitable purposes". The Act by s 9(2) gave a power to vary trusts. H
eld, that there
was a good charitable trust because (a) the objects must be read, not in isolati
on, but, as a
whole, and therefore did not include, eg, the temporal welfare of the vicious ri
ch; and (b) the
gift must be construed as a gift for the work as it existed, and, that being cha
ritable, the
power to vary trusts could not be used to apply the gift to non-charitable purpo
ses.
RE FIELD; TASMANIAN PERMANENT EXECUTORS & TRUSTEES ASSOCIATION
LTD V SALVATION ARMY (TASMANIA) PROPERTY TRUST [1951] Tas SR 16 (Tas
Sup Ct, Green J).
83. Support of church purposes Gift for "diocesan purposes" "In support of
a church"
.] A testatrix made bequests to the Anglican Bishop for the time being of the
Diocese of
Grafton and Armidale to be used respectively "for diocesan purposes" and "for di
ocesan
purposes generally". She also bequeathed an annual sum to the Bishop to be used
"in support
of" an indicated Anglican church. Held: (1) The discretion vested in the Bishop
trustee must
be exercised within the scope of diocesan purposes proper, that every diocesan p
urpose
proper was a religious purpose and charitable in the legal sense, and that the g
ifts to be used
for the purposes of the bequests were, therefore, valid. (2) The gift of an annu
al sum "in
support of" the indicated church was a trust for a religious purpose and was val
id.
RE MACGREGOR; THOMPSON V ASHTON (1932) 32 SR (NSW) 483; 49 WN 179 (NSW
Sup Ct, Long Innes J).
84. Support of church purposes Gift "to Roman Catholic Priest for Church purp
oses in
Parish" .] A testator gave the whole of his property to "the Roman Catholic Pr
iest for the
time being in charge of the Parish of Casino to be used for such Church purposes
in the
Casino Parish as he shall in his absolute unrestricted and unlimited discretion
determine".
Held: (1) Whether the expression "Church purposes in the Casino Parish" should b
e
construed either generically or for the purposes of the actual edifices of that
nature in that
parish, the gift was a valid charitable gift. (2) Assuming the expression "Churc
h purposes in
the Casino Parish" should be read as "the purposes of the Roman Catholic Church"
or "the
purposes of the Roman Catholic Churches now, or hereafter to be situate", in tha
t parish, the
purposes in question were religious purposes which, in view of the absence of a
context to
the contrary in the will, should be read as charitable religious purposes; and t
he gift,
therefore, would be a valid charitable gift.
RE MORONEY; MAGUIRE V REILLY (1939) 39 SR (NSW) 249; 56 WN 105 (NSW Sup
Ct, Long Innes CJ in Eq). [Discussed in note, 13 ALJ 233.]
85. Support of church purposes Gift to Archbishop "for the assistance of poor
parishes" .]
A testatrix bequeathed one-half of the income of her residuary trust fund to t
he Anglican
Archbishop of Sydney "for the assistance of such poor parish or parishes as the
said
Archbishop in his uncontrollable discretion may think fit". Held, a good charita
ble gift.
86. Support of church purposes Gift to "trustees of Roman Catholic Church in
Tasmania
For church purposes in diocese of Launceston" .] A testator bequeathed money
"upon
trust to pay the same to the trustees of the Roman Catholic Church in Tasmania,
to be used
for church purposes in the diocese of Launceston". Held, that the bequest was a
good
charitable gift.
RE HANNAH'S WILL; SHIELDS V A-G (TAS) (1939) 34 Tas LR 45 (Tas Sup Ct, Morris
ACJ).
87. Support of clergy Gift to officiating minister for time being De facto
officiating
minister .] A testator bequeathed money to trustees to accumulate until the ha
ppening of
an event, and thereafter to pay the income to the officiating minister for the t
ime being of a
Presbyterian Church. On the happening of the event S became minister of the chur
ch,
exercised all the functions for 24 years and was recognized by the governing bod
y of the
church in Tasmania, though he was not called or inducted according to the rules
of the
Presbyterian Church. The income was never paid to S or his assignee. Held: (1) T
he bequest
was a good charitable gift being designed as an endowment for a church not in re
spect to the
minister for the time being in his personal capacity, although intended to augme
nt his
stipend. (2) The officiating minister de facto for the time being was personally
entitled to the
income of the fund. (3) The minister for the time being could make a valid assig
nment of his
interest in the fund.
RE DRUMMOND'S TRUSTS (1907) 4 Tas LR 9 (Tas Sup Ct, McIntyre J).
88. Support of clergy Gift of income to Dean for time being of Anglican cathe
dral
Vacancy of office for period Bishop nominally holding office Curate substant
ially
performing duties .] A testatrix bequeathed to trustees 2,500 and directed them
to apply
the annual income for the benefit of the Dean for the time being of St David's C
athedral,
Hobart, provided that the Dean's stipend exceeded a certain amount. If the condi
tions of this
gift were not fulfilled the capital sum was to sink into residue. At her death t
he gift took
effect. On 1 November 1940, the then Dean died and no appointment of a new Dean
was
made until some time in 1942. In the meantime the Bishop, as provided for by the
Cathedral
Act 1886 (Tas), held the office, appointing an acting incumbent, who received th
e only
payment by way of stipend. Held: (1) The Bishop was not entitled to the income,
since he
was only a nominal holder of the office, neither performing its substantial duti
es nor
receiving the Dean's stipend. (2) The income during the vacancy should be added
to the
capital sum and the annual income of the total sum paid to the Dean for the time
being.
RE PATTERSON; PERPETUAL TRUSTEES & AGENCY CO OF TASMANIA LTD V
A-G (TAS) [1942] Tas SR 14 (Tas Sup Ct, Morris CJ).
89. Support of clergy Gift for benefit of "minister officiating" at Synagogue
.] A
testatrix directed her trustees to set apart for or pay to the proper officer of
the Jewish
Synagogue, Hobart, for the benefit of that institution 500, that sum to be invest
ed in trust
and the income applied for the benefit of the minister officiating at that Synag
ogue. The
Synagogue was without a minister until some years after the death of the testatr
ix. Held: (1)
The gift of income was for the benefit of the minister for the time being since
the testatrix
intended a continuing benefit to the Synagogue. (2) The income during the period
while there
was no minister should be added to the capital sum.
RE FALL; EQUITY TRUSTEES CO OF TASMANIA LTD V EPSTEIN [1944] Tas SR 41
(Tas Sup Ct, Morris CJ).
544. Gift for masses Inconvenient gift Alternative scheme .] The testatri
x
bequeathed her estate to be held on trust with the income to be applied for mass
es for the
souls of named individuals at a church and a monastery. The Roman Catholic Archd
iocese of
Melbourne proposed that the income of one-third of the estate be applied for mas
ses and the
other two-thirds be applied by the church and monastery for the advancement of r
eligion.
Held: (1) The trust was a valid charitable trust for the advancement of religion
because: (a)
there was a public benefit in intercessory prayer as the celebration of mass was
itself a
central act of the religion of a large proportion of Christian people; and (b) t
he honorarium
payable for the mass enabled priests to support themselves. (2) The estate shoul
d be applied
cy-pres as proposed by the Roman Catholic Archdiocese of Melbourne because the t
rust
stipulated by the will, if not wholly impractical, was at least highly inconveni
ent to give
effect to.
CROWTHER V BROPHY [1992] 2 VR 97 (Vic Sup Ct, Gobbo J).
545. Gift for repair and maintenance of church Gift for charitable purposes .
]
RE FINDLAY'S ESTATE (1995) 5 Tas R 333 (Tas Sup Ct, Cox CJ).
[7] Divn 5. Advancement of Education
90. Educational institutions Gift for scientific institution .] A gift upon
trust to apply
the property "towards the advancement of scientific research generally and the f
ounding
endowing or assisting any existing scientific institution or any scientific inst
itution which
may hereafter be founded", Held, a valid charitable gift.
91. Educational institutions Gift for scholarship For student at specified
school
showing greatest promise .] A testator bequeathed money on trust to apply the
income
yearly for the use and benefit of the student selected each year by the headmast
er of a named
school as the scholar who showed the greatest promise and would derive the great
est benefit
from further education, with an added condition that, should the student decide
against
further education, he should receive a fixed cash sum from income with the balan
ce of
income in that particular year reverting to the trust fund. Held, that the beque
st was for
educational purposes and charitable because it provided an incentive to promote
education
despite the student's right to use the money for other than educational purposes
.
RE WEAVER; TRUMBLE V ANIMAL WELFARE LEAGUE OF VICTORIA [1963] VR
257 (Vic Sup Ct, Hudson J).
92. Educational institutions Gift for scholarship For study and training in
aviation .]
A testator gave his residuary estate upon trust "to grant in each year two schol
arships of 50
per annum each tenable for three years and to be open for competition to Protest
ant boys of
the Hindmarsh and Brompton Schools for study and training in any branch of aviat
ion and to
assist in his maintenance during the term of the scholarship". Held: (1) The tru
sts expressed a
charitable purpose. (2) They expressed a general charitable intention and in the
event of the
terms of the trust becoming impracticable a cy-pres scheme might be settled.
RE LAMBERT [1967] SASR 19 (SA Sup Ct, Bright J).
93. Educational institutions Gift for scholarship At specified institution
Preference
provision .] A testator directed: "The estate is to be put into the hands of t
he Public
Trustee and administered by them so that the income from the estate provides for
a
scholarship or a number of them tenable at the Ballarat School of Mines preferen
ce being
given to BHA Smelters Port Pirie employees". BHA Smelters was a company which ha
d
employed the testator. Held, that the clause created a general trust for educati
onal purposes
in favour of the school, thus manifesting a general charitable intention, and th
e direction as
to preference did not alter the charitable nature of the bequest. The clause did
not constitute a
special trust in favour of a class consisting of the employees mentioned. The pr
eference
provision was simply an administrative direction to the trustee administering th
e scheme
that, if other things being equal, preference should be given to those employees
if they were
eligible and were willing to accept the scholarship.
[(1980) 23 SASR 239 affd.]
PUBLIC TRUSTEE V YOUNG (1980) 24 SASR 407 (SA Sup Ct FC).
94. Educational institutions Gift for beautification of specified university
grounds .] A
testatrix made a gift to a university for the establishment of a rose garden in
its grounds.
Held, that a gift for the beautification of the grounds of an educational instit
ution which
satisfies the necessary test that it must be open to a sufficient part of the pu
blic is a gift for
the advancement of education; it must be conducive to better studies by the stud
ents. The gift
was accordingly valid as a charitable gift.
MCGRATH V COHEN [1978] 1 NSWLR 621 (NSW Sup Ct, Needham J).
95. Gift for advancement of education in foreign state .] Held, that there is
no rule of law
that a trust for a wholly foreign purpose cannot be a valid charitable trust acc
ording to the
law of New South Wales despite the absence of any public benefit to the local co
mmunity.
Accordingly, a gift of residue in a will to trustees to be held "in trust for th
e Government of
the State of Israel for the advancement of education in that state" is a valid c
haritable trust.
LANDER V WHITBREAD [1982] 2 NSWLR 530 (NSW Sup Ct, Holland J).
96. Education in particular subjects Gift for extension of technical educatio
n in State
schools .] A testator directed that the residue of his estate be invested and
that, after the
death of a life tenant, the income be applied for the perpetuation of an annual
essay award.
The objects of the bequest and the purpose of the essay were to popularize and p
romote the
principles he advocated in his published works, namely, measures to prevent deat
hs of
infants, the improvement of Australian food habits and the extension of the teac
hing of
technical education in State schools. The bequest was to be administered by a sp
ecified
society, but it declined to administer the bequest. Held, that the extension of
the teaching of
technical education in State schools was a valid charitable object and the beque
st was not
void as being a trust for the attainment of a political object.
[(1937) 38 SR (NSW) 22; 55 WN 43 affd subject to variations.]
ROYAL NORTH SHORE HOSPITAL OF SYDNEY V A-G (NSW) (1938) 60 CLR 396; 12
ALJ 182; 38 SR (NSW) 405; 55 WN 166; [1938] ALR 434 (HC).
97. Education in particular subjects Gift for prize for musical competition .
] A
testator, by will handwritten on a printed form, made a specific bequest of his
shares in a
home unit company together with the contents of the unit which those shares enti
tled him to
occupy. He then gave pecuniary legacies, listed what he described as "my assets"
, and
provided that "the rest of the money" should be invested and the interest theref
rom used as
prize money for a musical competition in Australia for an orchestral work and a
song cycle in
alternate years. The will continued: "If the interests are more than 1,000.0.0 th
ousand a year
then a similar price should be made out for Vienna and should be paid under the
same name
Paul Lowin Preis under the same conditions to the best composition from a Vienne
se or
Austrian Composer. Price should not be more than 1,000.0.0 thousand in one go, fi
rst to be
paid in Australia and what is more should go to Vienna" [sic] Held: (1) The disp
osition of
"the rest of the money" constituted a gift of all the residuary estate remaining
after specific
gifts. (2) The bequest for a musical competition in Australia constituted a good
charitable
trust. (3) As there was a sufficient nexus between the advancement and encourage
ment of
music in Austria and the benefit of a substantial section of the public of New S
outh Wales,
the trust relating to the excess of income over 1,000 per annum was a valid chari
table trust.
(4) In respect of the trust providing for the excess of income over 1,000, the re
vealed
intention of the testator was that, whilst the entire trust fund should be retai
ned and
administered by the trustee in New South Wales any net excess over 1,000 should b
e sent to
Vienna to be paid to the winner of a similar competition conducted there, open o
nly to
persons of Austrian birth and who were Austrian nationals, wherever resident.
[[1965] NSWR 1624, varied.]
Ct CA).
98. Education in particular subjects Gift for endowing annual prize for portr
ait painting .]
Held: (1) A trust for a purpose will not be regarded as charitable unless it i
s a trust of a
public nature, for the benefit of the public and capable, if need be, of being c
ontrolled by the
court. (2) What is a public general purpose is to be ascertained from the condit
ions of the age
in which the donor or testator lived. (3) Any gift which proceeds from a philant
hropic or
benevolent motive and which is intended to benefit a class of persons worthy, in
numbers or
importance, of consideration as a public object of generosity, and which will co
nfer the
supposed benefit without contravening law or morals, will be charitable. (4) Acc
ordingly, a
bequest upon trust for the purpose of establishing, endowing and maintaining an
annual prize
for portrait painting was a bequest for the advancement of education and was a v
alid
charitable trust.
PERPETUAL TRUSTEE CO LTD V GROTH (1985) 2 NSWLR 287 (NSW Sup Ct, Powell
J).
99. Education in particular subjects Trust for advancement of legal education
.] A
land-holding company purchased land "as trustee for the College of Law to be inc
orporated".
The dominant object of the company was the provision of legal education. Its sol
e practical
function was to hold land. A building known as the College of Law was erected on
the land.
It functioned as an unincorporated institution established pursuant to a resolut
ion of the Law
Society of New South Wales. As well as conducting pre-admission practical traini
ng courses
the college conducted continuing legal education courses for newly admitted soli
citors and
refresher and "new areas" courses for established practitioners. Held: (1) The p
urposes of the
College of Law were charitable and the activities of the college were consistent
with those
purposes. (2) Although there had been no formally constituted charitable trust i
n respect of
the land and although the contracts of purchase could not be construed as declar
ations of
trust, since the company had always dealt with the property in a manner consiste
nt only with
the existence of an obligation to hold it for the advancement of legal education
and in
particular the activities for the time being of the College of Law as an educati
onal
establishment the company was to be regarded as a constructive trustee for the a
dvancement
of legal education or for the more specific purposes of the College of Law and a
ccordingly,
the land belonged to a public charity and was exempt from rating.
COLLEGE OF LAW (PROPERTIES) PTY LTD V WILLOUGHBY MUNICIPAL COUNCIL
(1978) 38 LGRA 81 (NSW Land & Valuation Ct).
100. Education in particular subjects Gifts for encouragement and support of
natural
history .] A will, not professionally prepared, stipulated that: "I wish the r
est of my
property (investments, etc etc) to be devoted to encouraging and supporting the
study of
natural history, under the control of the University of Adelaide, or in case of
inability some
other University. I should wish the fund to be expended on some sort of laborato
ry or the
furniture thereof or its maintenance for the scientific study of biology and com
parative
anatomy (animal rather than vegetable) in preference to scholarships. Perhaps it
might serve
to provide a nucleus for a contribution towards an institution for the study of
marine zoology;
but the field is very wide". Held, a good charitable gift.
RE BENHAM [1939] SASR 450 (SA Sup Ct, Richards J).
101. Research Gifts to promote research in theory of education, study of Germ
an
language, literature and culture, and "research work in the field of the cure of
human
diseases" .] A testator left his residuary estate upon trust (a) as to 4,500
for the
University of Adelaide to be invested and the annual income applied one-half to
the
promotion of post-graduate research work in the theory of education and the othe
r half to
promote the study of the German language, literature and culture, by the establi
shment of
prizes and awards; (b) as to the balance of his residuary estate for the Univers
ity of Hamburg
in Germany to be devoted to "research work in the field of the cure of human dis
eases having
regard to the influence of the patients' mental attitude in this regard". He dir
ected that the
gifts be invested by the respective beneficiaries in "any authorized securities"
, and that the
beneficiaries apply only one-half of the annual income to arise in each year for
the purposes
specified, and should in each year add the remaining half to the capital from wh
ich it arose.
Held: (1) The bequests were valid charitable gifts. (2) In relation to the beque
st to the
University of Hamburg, the direction that the gift should be invested in "author
ized
securities" must be construed to mean in accordance with the rules of law applic
able thereto
in Germany. (3) In the case of the bequest to the University of Adelaide, the di
rection to
accumulate annually a moiety of the interest derived from the respective funds,
fell within s
60(1) of the Law of Property Act 1936 (SA) and could operate only for 21 years f
rom the
death of the testator. (4) As the mandate of the testator was for payment over o
f the amounts
to the universities contemporaneously with the final winding up of his estate an
d it was his
intention that each university administer the whole of the particular fund for t
he charitable
purposes specified, no question arose as to the destination of so much of the fu
nds from
which a moiety was to be accumulated after 21 years from death.
IN THE ESTATE OF SCHULZ; PLAYFORD V UNIVERSITY OF ADELAIDE [1961]
SASR 377 (SA Sup Ct, Mayo J).
102. Sports and games Gift for fostering football at specified university .]
A testatrix
provided: "I give and bequeath the sum of 2,000 to the Treasurer for the time bei
ng of the
Sydney University Amateur Rugby Union Football Club to be used as a Trust Fund;
the
income therefrom to be available for purposes of the Club and for fostering the
sport of
Rugby Union at Sydney University". Held, that this was a valid charitable gift.
KEARINS V KEARINS (1957) 57 SR (NSW) 286; 74 WN 63 (NSW Sup Ct, McClelland J).
[8] Divn 6. Other Purposes Beneficial to Public
103. Public benevolent institution What is Trust having force of statute .]
The
applicants operated an account styled the "Charities Trust Account" established
under an
agreement approved by the Allport Library and Museum of Fine Arts Agreement Act
1966
(Tas) entered into to prevent failure, on technical grounds, of a charitable dis
position under a
will. The agreement provided for the establishment of a museum of fine arts, the
endowment
of a library board and, materially, that the trustees should hold the balance of
the estate as a
perpetual charitable trust to be known as the Allport Bequest upon trust to appl
y the income
thereof in providing donations or gifts of money for such public charitable obje
cts for the
citizens of Hobart as they should in their absolute discretion decide to help. T
he trustees
sought exemption from debits tax on the ground that the account was in the name
of a
"public benevolent institution" within the definition of "excluded debit" in s 3
(1)(a)(vi)(A) of
the Bank Account Debits Tax Administration Act 1982 (Cth). Held, dismissing the
trustees'
appeal: (1) The trust was a trust for charitable purposes. (2) The class of pers
ons which might
receive benefits from the Allport Bequest constituted a sufficient section of th
e public to
make the Allport Bequest "public" within the meaning of the composite phrase "pu
blic
benevolent institution". (3) The fact that the Allport Bequest had the force of
an Act of
Parliament did not alter its essential character which was that of a mere trust.
The applicants
were no more than simple trustees. They were not an institution within the compo
site phrase
"public benevolent institution".
TRUSTEES OF ALLPORT BEQUEST V COMMISSIONERS OF TAXATION (CTH)
(1988) 19 ATR 1335; 88 ATC 4,436 (Fed Ct of Aust, Northrop J).
104. Benefit of locality Gift for beautification and advancement of township
.] Held,
that a trust of the whole of a testator's residuary estate "for the beautificati
on and
advancement of the township of Bunyip" was a valid charitable trust. Per curiam:
The phrase
"beautification and advancement" should, as a matter of construction, be read di
sjunctively.
[[1952] VLR 525 affd.]
SCHELLENBERGER V TRUSTEES EXECUTORS & AGENCY CO LTD (1953) 86 CLR
454; 26 ALJ 496; sub nom RE SHELLEY; SCHELLENBERGER V TRUSTEES
EXECUTORS & AGENCY CO LTD [1953] ALR 39 (HC).
105. Benefit of locality Gift for "the improvement of the City of Ballarat" .
] A gift by
will "for the improvement of the City of Ballarat as my trustees and the Council
of the said
City for the time being shall agree on", is a good charitable gift.
RE BONES; GOLTZ V BALLARAT TRUSTEES, EXECUTORS & AGENCY CO LTD
[1930] VLR 346; (1930) 36 ALR 279 (Vic Sup Ct, Lowe J). [Discussed in note, 4 AL
J 226.]
106. Benefit of locality Gift for beautification and development as beauty sp
ot of lake .]
A testator bequeathed the residue of his estate for the erection of monuments
over the
graves of his parents and grandparents and for the erection of a cairn to commem
orate the
first settlement of his pioneer ancestors at Natimuk, and the balance of his est
ate and its
income for the upkeep of the monuments and cairn and "the beautification of Nati
muk Lake
and foreshore and the development of same as beauty spot and tourist resort". He
ld, that
neither the erection of the monuments and cairn nor their upkeep was a valid cha
ritable
purpose, but "the beautification of Natimuk Lake and foreshore and the developme
nt of same
as beauty spot and tourist resort" was.
RE SPEHR [1965] VR 770 (Vic Sup Ct, Gowans J). [Discussed in article, 47 ALJ 68.
]
107. Benefit of section of community General principle Repatriation Fund .]
In
order that a gift, not being for the relief of poverty, or the advancement of ed
ucation or
religion, may constitute a valid charitable trust, it must be for the benefit of
the community,
or of an appreciably important class of the community, and need not be confined
to poor
persons only. Therefore, a bequest to "the trustees of the Repatriation Fund, or
other similar
fund for the benefit of New South Wales returned soldiers" is a good charitable
bequest.
[(1921) 21 SR (NSW) 450; 38 WN 118 affd.]
68 SJ 419 (PC).
108. Benefit of section of community Gift "for the benefit of the orphans who
se fathers
fought with the Russian Army against Germany and Japan" in World War II .] A t
estator
after providing for the payment of annuities, directed that the whole of the net
income from
his estate be paid at least yearly to the Armenian General Benevolent Union, a b
ody
incorporated in Switzerland and having its permanent administrative seat in New
York, USA.
This body was directed to pay the annuities and to "use the balance if any of th
e said income
for the benefit of the orphans whose fathers fought with the Russian Army agains
t Germany
and Japan in the World War which ended last year". If the union so desired it wa
s authorized
to call for the transfer to it of the assets of the estate, and directions were
given as to the
mode of investment of such assets and for the setting up of a fund called the "P
ermanent
Trust Fund" which fund the union was to stand possessed of upon the trusts decla
red by the
will. Held, that there was a valid charitable trust for the children of fathers
of the Armenian
race who died on active service with the Russian army in the world war against G
ermany and
Japan which ended in 1945, if the children were under 21 years of age at the dat
e of the
testator's death and in need of assistance or protection and, per Williams, Webb
and Kitto JJ,
such children would remain orphans so long as they continued in need of assistan
ce, whether
they had attained the age of 21 years or not.
109. Benefit of section of community Gift to specified branch of Navy League
Sea Cadets
.] A testator bequeathed to trustees the income from property "for the Navy Le
ague Sea
Cadets Geelong Branch or any other youth welfare organization male or female as
in their
wisdom they deem fit". Held, that the gift to the Navy League Sea Cadets was a c
haritable
gift, but that the gift to "any other youth welfare organization" was void for u
ncertainty; the
former gift was, and the latter gift was not, saved by s 131 of the Property Law
Act 1928
(Vic).
RE BELCHER [1950] VLR 11; [1950] ALR 138 (Vic Sup Ct, Fullagar J).
110. Benefit of section of community Australian aborigines .] By his will,
a testator
directed his trustee to pay or transfer his residuary estate to a named person,
"to be used by
him in his discretion for the benefit of the Australian aborigines". Held, that
the gift was a
valid charitable trust.
RE MATHEW; TRUSTEES EXECUTORS & AGENCY CO LTD V MATHEW [1951] VLR
226; [1951] ALR 518 (Vic Sup Ct, O'Bryan J). [Discussed in note, 26 ALJ 17.]
111. Benefit of section of community Australian aborigines Gift for benefi
t of
aboriginal women .] A testatrix gave the whole of her residuary estate upon tr
ust to the
Australian Aboriginal League to be applied "for the benefit of aboriginal women
in Victoria".
Held: (1) Australian aborigines are now (as they were formerly) a class of perso
ns in need of
protection and assistance, as appears from legislation passed and organizations
formed for
their assistance, and the gift was a valid charitable gift. (2) The expression "
aboriginal
women" in the will was not limited to aboriginal women of full blood.
RE BRYNING [1976] VR 100 (Vic Sup Ct, Lush J).
112. Benefit of section of community Australian aborigines Provision of
accommodation for disadvantaged .] The appellant operated hostels to assist ab
origines
and did not make a profit. By agreement with the Commonwealth it provided facili
ties for
disadvantaged aborigines, in the event of any winding up or dissolution of the a
ppellant, its
property should pass to the Minister, after satisfaction of all debts, rather th
an be distributed
amongst the members. Held, that the purposes of the appellant were charitable, i
t was a
public charity within s 175B(3)(c) of the Local Government Act 1954 (NT) and the
land was
occupied for the purposes of that charity because: (a) the Minister's power to d
ispose of
surplus property did not prevent the existence of a constructive trust; in the e
vent of winding
up, the Minister would be required to administer any surplus assets directly or
by other
means for the same purposes or cy-pres; (b) the expression "public charity" shou
ld, for the
purposes of the Act, be given its legal meaning within the scope of the Charitab
le Uses Act
1601 (43 Eliz I c 4); (c) these questions were to be determined by reference to
the terms of
the trust and the consequent obligations of the trustees; (d) the question wheth
er land is used
or occupied for the purposes of a public charity is determined by comparing the
purposes of
the trust as evinced in the relevant instruments with the actual use to which th
e land is put;
(e) not all of the objects of a trust need to be charitable if those that are no
t are ancillary to
those that are. The purposes in the Charter's objects which do not relate to abo
rigines are
clearly ancillary. Australian aborigines are notoriously in this community a cla
ss which,
generally speaking, is in need of protection and assistance. However, this does
not lead to the
result that they are to be classified perpetually as in need of protection and a
ssistance; (f)
although the provision of accommodation for aborigines may not be strictly regar
ded as
being for the relief of poverty or for one of the expressed traditional charitab
le purposes, it
was sufficiently analogous to those purposes to be held to be a charitable purpo
se. The fact
that payment must be made for the accommodation or that other purposes in the Ch
arter
were not per se charitable, did not detract from the general proposition.
ABORIGINAL HOSTELS LTD V DARWIN CITY COUNCIL (1985) 75 FLR 197; 55 LGRA
414; 33 NTR 1 (NT Sup Ct, Nader J).
113. Benefit of section of community Gift for welfare of church members .]
Held, that
a trust to apply land for any "object and/or purposes having in view the spiritu
al, intellectual,
moral or bodily welfare of the members" of the Wesleyan Methodist Church is a va
lid
charitable gift.
RE CARMICHAEL; WADDINGTON V A-G (Q) [1936] QSR 196 (Q Sup Ct, Henchman J).
114. Objects of public utility Gift to municipal corporation for erection of
hall for
meetings of cultural or educational value .] A testator directed his trustees
to pay the
residue of his estate "to the Corporation of the City of Launceston to be held b
y the said
Corporation as a nucleus of a fund to provide a suitable hall or theatre for the
holding of
concerts to provide music for the citizens of the city and for the production of
drama
entertainments and the holding of meetings of a cultural or educational value".
He directed
that "the Corporation of the said City of Launceston in disposing of the said mo
neys shall be
the sole judge as to whether the objects to which they are applying this bequest
are within the
terms of the gift being confident that the Corporation will use this money to th
e best
advantage and apply the same in accordance with my wishes so far as the circumst
ances at
the time enable them". Held: (1) The gift was a gift for the purpose of providin
g a hall and
was a valid charitable gift. (2) If and so far as the direction making the Corpo
ration the sole
judge as to whether the objects to which the bequest was being applied purported
to make it
the sole judge regarding the purposes for which the hall was to be used, it was
void as an
attempted ouster of the jurisdiction of the court. (3) The gift was an immediate
charitable
gift, and the use of the word "nucleus" did not import into the gift a condition
precedent
suspending the operation of the gift indefinitely so that it would be bad for re
moteness.
Accordingly, the next of kin had no interest in the residue unless it was found
impracticable
to carry into execution the trust, or unless there was a surplus after the trust
had been
executed.
MONDS V STACKHOUSE (1948) 77 CLR 232; 23 ALJ 62; [1949] ALR 299 (HC).
115. Objects of public utility Production of law reports not for private gain
.] The
production not for private gain of law reports recording the decisions of a supe
rior court in
Australia is a purpose beneficial to the community within the scope of the fourt
h head of
charity as expressed in Commissioners for Special Purposes of Income Tax v. Pem
sel [1891]
AC 531, at p 583.
INCORPORATED COUNCIL OF LAW REPORTING (Q) V COMMISSIONER OF
TAXATION (CTH) (1971) 125 CLR 659; 45 ALJR 552; [1972] ALR 127; 2 ATR 515; 71
ATC 4206 (HC).
116. Objects of public utility Trust for showground, park and recreation purp
oses .]
Land was acquired by Brisbane City Council from trustees for the Mount Gravatt
Agricultural, Horticultural and Industrial Association, the main function of whi
ch was to
operate a showground and hold a district show there each year. The land had been
accepted
by the Council, on the terms of a letter of the Town Clerk to one of the trustee
s, specifying:
"(a) The area to be set apart permanently for Showground, park and recreation pu
rposes; (b)
The Show Ring to be levelled off; (c) The Show Society [scil, the Association] t
o be granted
the exclusive use of the Ground without charge for a period of two weeks in each
and every
year, for the purposes of and in connection with the District Annual Show". Held
: (1) The
terms of para (a) of the letter, stating that the area was to be set apart perma
nently for
specified purposes, were entirely appropriate for, and only consistent with, an
intention to
create a trust binding the land in the Council's ownership. (2) The main purpose
included in
"showground purposes" in para (a) was the promotion of agriculture, and thus a c
haritable
purpose within the fourth class defined in Income Tax Special Purposes Commissio
ners v
Pemsel [1891] AC 531, as a trust beneficial to the community within the preamble
to the 43
Eliz I c 4. While not dissenting from the approach that the purposes expressed i
n the whole
phrase "park, recreation or showground purposes" are beneficial to the community
within the
fourth category of charitable purposes, a view specifically relying upon the pro
motion of
agriculture is on firmer ground. (3) The validity of the trusts under para (a) o
f the letter as
charitable trusts was not impaired by a provision which permitted the trusts to
be
implemented, in part, by being placed at the disposition of private individuals.
A valid
charitable trust had accordingly been created.
BRISBANE CITY COUNCIL V A-G (Q) (Ex rel SCURR) (1978) 52 ALJR 599; 40 LGRA
314; 19 ALR 681; [1979] AC 411; [1978] 3 WLR 299; [1978] 3 All ER 30 (PC). [Disc
ussed
in note, 122 Sol J 506.]
117. Objects of public utility Trust for encouragement and settlement of migr
ants in
foreign state .] Held, that a trust created by will, as one to further the pur
poses of a body
whose objects and activities were the encouragement and settlement of migrants g
enerally in
pursuance of a policy of the community and in co-operation with government
instrumentalities was one which would be recognized as a legal charity in this c
ountry.
RE STONE; PERPETUAL TRUSTEE CO LTD V STONE (1970) 91 WN (NSW) 704 (NSW
Sup Ct, Helsham J). [Discussed in note, 44 ALJ 558.]
118. Objects of public utility Trust for relief of distress in Europe .] A
testator left his
residuary estate upon trust "for the relief of distress in Europe in the manner
indicated by the
pastor for the time being of the Lutheran Church, Eastern Hill". Held, that the
gift of residue
constituted a valid charitable trust.
119. Objects of public utility Gift of land as public park for picnic parties
and to provide
facilities for picnickers .] A devise of land "upon trust in memory of my fath
er ... as a
public park to be named as the `Stephen Mair Memorial Park' such park to be fo
r the use
of the public generally for picnic parties, and to provide facilities for the co
mfort and
amusement of picnickers in the said park, and in particular to provide spaces fo
r picnic
parties and for the playing of football, cricket, baseball and other games, prov
ided that such
spaces be used purely for the amusement of the public and not for organized comp
etitions
between outside bodies" has as its object the healthy outdoor recreation of the
public and is a
valid charitable gift, being a gift for the public benefit and falling within th
e spirit and
intendment of the preamble to the Statute of Elizabeth (43 Eliz. I c. 4).
RE MAIR [1964] VR 529 (Vic Sup Ct, Adam, J). [Discussed in note 38 ALJ 250.]
120. Objects of public utility Gift for municipal markets or park .] Land w
as
transferred to a municipal corporation subject to a condition that it should "at
all times
hereafter be maintained and used as a site for a Garden Park or Reserve for the
use of the
public or for Municipal Markets or other similar purposes for the transaction of
the business
of a public Market or other similar business of the City of Fitzroy or other the
Municipal
Corporation by whatever name it may be designated within which the said land sha
ll for the
time being be situate", but if not so used for three years, then at the expirati
on of such period
the interest so transferred was to cease and the land was to revert to the trans
feror or his
successors who could re-enter. Questions arose whether the City of Fitzroy held
the land
subject to any of the conditions or restrictions contained in the transfer. Held
: (1) The words
in the transfer created a valid charitable trust for the period of the gift what
ever that period
was and whether perpetual or limited, and not merely a condition subsequent. (2)
The right
of re-entry contained in the transfer infringed the rule against perpetuities an
d was void. (3)
The charitable trust was unaffected by the invalidity of the right of re-entry a
nd bound the
municipality.
RE SMITH [1967] VR 341; (1966) 18 LGRA 403 (Vic Sup Ct, Menhennitt J).
121. Objects of public utility Fund for relief of suffering and distress and
compensation
for loss caused by natural disaster .] The relief of suffering and distress an
d the
compensation for loss caused by a natural disaster such as the Darwin "Cyclone T
racy" is a
charitable purpose.
RE DARWIN CYCLONE TRACY RELIEF TRUST FUND; ADERMANN V DARWIN
CITY CORPORATION (1979) 39 FLR 260 (NT Sup Ct, Forster CJ).
122. Promotion of safety and protection of country Gift for amelioration of c
ondition of
dependants of any member or ex-member of naval military or air forces .] A tes
tator gave
the whole of the balance of his residuary estate to the Roman Catholic Archbisho
p of
Melbourne to be distributed at his discretion for specified purposes including "
the
amelioration of the condition of the dependants of any member or ex-member of He
r
Majesty's naval military or air forces or the naval military or air forces of th
e
Commonwealth". Held: (1) The clause was valid for the following reasons: (a) it
was
confined to those who were in need of assistance and were dependants of the pers
ons in the
classes specified in the clause and, therefore, the purpose which the clause exp
ressed was the
relief of poverty; (b) if the clause applied to all such dependants whether in n
eed of
assistance or not, its operation was confined by s 131 of the Property Law Act 1
958 (Vic) to
the amelioration of the condition of necessitous dependants; (c) the clause expr
essed
purposes which included a charitable purpose independently of the relief of pove
rty, namely,
the purpose of ameliorating the condition of the dependants of the naval militar
y or air forces
of the Commonwealth, which was beneficial to the community and was within the fo
urth
class of the classification in Pemsel's Case [1891] AC 531, at p 583; (d) if the
inclusion in the
clause of the reference to the dependants of members or ex-members of naval mili
tary or air
forces of Her Majesty other than those of the Commonwealth had the result that t
he trust
property could be applied in a manner going beyond a valid charitable purpose of
the kind
mentioned in (c) (which was not decided), s 131 operated to confine the applicat
ion of the
trust property, which the clause permitted, to its application for the charitabl
e purpose
mentioned in (c).
[(1970) 17 FLR 39; [1970] VR 795; [1971] ALR 139; 1 ATR 820 affd.]
513; 2 ATR 472; 71 ATC 4164; [1971] AEGR 66,067(HC). [Discussed in note, 9 UQLJ
118.]
123. Promotion of safety and protection of country Gift to provide prizes for
competition
amongst members of Police Force .] The testator directed that the income of hi
s residuary
estate should be divided into 21 parts, and that one part should be applied in p
roviding prizes
for competitions among and to be confined to the members of the Police Force of
NSW.
Held, that this was a good charitable bequest.
CHESTERMAN V MITCHELL (1923) 24 SR (NSW) 108; 41 WN 11 (NSW Sup Ct, Harvey
J).
124. Promotion of arts Gift for prize musical competition .] A testator, by
will
handwritten on a printed form, made a specific bequest of his shares in a home u
nit company
together with the contents of the unit which those shares entitled him to occupy
. He then
gave pecuniary legacies, listed what he described as "my assets", and provided t
hat "the rest
of the money" should be invested and the interest therefrom used as prize money
for a
musical competition in Australia for an orchestral work and a song cycle in alte
rnate years.
The will continued: "If the interests are more than 1,000.0.0 thousand a year the
n a similar
price should be made out for Vienna and should be paid under the same name Paul
Lowin
Preis under the same conditions to the best composition from a Viennese or Austr
ian
Composer Price should not be more than 1,000.0.0 thousand in one go, first to be
paid in
Australia and what is more should go to Vienna" [sic] Held: (1) The disposition
of "the rest
of the money" constituted a gift of all the residuary estate remaining after spe
cific gifts. (2)
The bequest for a musical competition in Australia constituted a good charitable
trust. (3) As
there was a sufficient nexus between the advancement and encouragement of music
in
Austria and the benefit of a substantial section of the public of New South Wale
s, the trust
relating to the excess of income of over 1,000 per annum was a valid charitable t
rust. (4) In
respect of the trust providing for the excess of income over 1,000, the revealed
intention of
the testator was that, whilst the entire trust fund should be retained and admin
istered by the
trustee in New South Wales any net excess over 1,000 should be sent to Vienna to
be paid
to the winner of a similar competition conducted there, open only to persons of
Austrian
birth and who were Austrian nationals, wherever resident.
[[1965] NSWR 162A varied.]
Ct CA).
125. Promotion of arts Distribution of literature to residents in country dis
tricts .]
Quaere, whether the activity of supplying books, magazines and other publication
s, religious
or otherwise, to people resident in country districts, is charitable.
RE CARSON; CARSON V PRESBYTERIAN CHURCH OF QUEENSLAND [1956] QSR
466 (Q Sup Ct FC). [Discussed in note, 30 ALJ 453.]
126. Protection of animals Gift to establish and maintain home for homeless s
tray and
unwanted animals .] A testatrix directed her trustee to purchase and equip a h
ome for the
maintenance and care of or for otherwise mercifully and kindly dealing with home
less stray
and unwanted animals. Held, that "homeless stray and unwanted animals" referred
to
domestic animals, that is, such animals as are commonly kept and cared for aroun
d human
habitations. So construed, the trust declared was a valid charitable trust.
A-G (SA) V BRAY (1964) 111 CLR 402; 37 ALJR 447; [1964] ALR 955 (HC).
127. Protection of animals Gift for preservation of native wild life .] A t
estatrix
provided that the net balance of her estate should be devoted to the preservatio
n of native
wild life (flora and fauna) and directed that her trustees might carry out her w
ishes "either by
making direct donations to one or more organizations concerned with wild life by
promoting
the preservation of wild life or in such other manner as [her] trustees [should]
in their
absolute discretion think fit". On an application for a declaration that this be
quest constituted
a valid charitable trust Held: (1) The question whether a particular purpose is
for the benefit
of the community has to be determined as of the time when the question falls to
be answered
and by reference to relevant matters existing at that time. (2) The language use
d in
expressing the purposes of the gift and the objects to be benefited showed more
than a mere
intention to benefit wild life in vacuo. It indicated more than a mere concern f
or animal
welfare, and extended to a concern for the welfare of the community in saving in
digenous
wild life from the encroachment of human activities; and this negatived an argum
ent that no
charitable intention was expressed. (3) The preservation of "native" wild life w
as to be
interpreted as meaning wild life, flora and fauna, indigenous to Australia. (4)
The evidence
established that there was a real and substantial benefit to the community in th
e preservation
of Australian wild life in aspects which matched in spirit purposes stated in th
e preamble to
the Charitable Uses Act 1601 (43 Eliz I c 4). The gift was accordingly for a val
id charitable
trust.
128. Protection of animals Gift for preservation of native wild life Maint
enance of
sanctuary .] A testator directed his trustees to hold his property upon the fo
llowing trusts:
"(a) For the benefit of the public of Australia to preserve animals (being mamma
ls) and birds
indigenous to Australia but particularly to Victoria, and the indigenous flora t
hat provides
cover food and general conditions suitable for the life habits and preservation
of such
animals and birds. (b) To foster support and improve, both for scientific and ed
ucational
purposes, education knowledge and research in the origin history habits life and
use and the
scientific benefits (if any) of the mammals birds and flora specified in (a) and
the
relationship of one or more to the other. (c) To contribute to the funds of any
University or
School or any society institution or corporation which encourages teaches or end
eavours to
carry into effect the spread of any one or more of the above objects and/or the
practical
application thereof. (d) To contribute to the maintenance and improvement of any
sanctuary
under the Game Act 1928 (Victoria) or land subject to the provisions of the Wild
Flowers
and Native Plants Protection Act 1928 (Victoria). (e) To pay for work done or se
rvices
rendered in connection with any one or more of the objects of the trust. (f) To
grant prizes or
rewards: (i) To any person or persons who is or are prosecuting or has or have
prosecuted
the study of any one or more of the objects of the trust; (ii) To any person or
persons who in
the opinion of my trustees is or are qualified to act as an Òbserver' or Òbser
vers'. (g) All
proper costs charges commission and expenses of and incidental to administration
and
management of the trust shall be first defrayed by the trustees out of income an
d subject to
such payments the yearly income shall be applied by the trustees in furtherance
of the objects
of the trust in such manner as the trustees shall deem expedient. (h) The truste
es shall have
power to receive any additional donations subscriptions or endowments for the ge
neral
purposes of the Trust. They may also receive donations subscriptions or endowmen
ts for any
special purpose connected with the objects of the trust not inconsistent with or
calculated to
impede the due working of the provisions of the same". Held: (1) The trust in cl
(a) being
confined to the preservation of animals and birds in such circumstances and in s
uch manner
as would be beneficial to the public was a valid charitable trust. (2) The trust
in cl. (b) was
wholly charitable. (3) In so far as cl (c) referred to any university or school
its purposes were
charitable, and the effect of the Property Law Act 1928 (Vic), s 131, was to del
ete from the
clause the words "or any society institution or corporation". (4) The trust in c
l (d) was not
charitable and the effect of s 131 of the Property Law Act was to delete it from
the will. (5)
Clauses (e), (f) and (g) should be construed as limited to the preceding valid c
haritable
purposes and operated accordingly. (6) Clause (h) had no effect upon the rights
of the
trustees except in so far as it might impliedly prohibit them from receiving cer
tain kinds of
donations, subscriptions or endowments.
RE INGRAM [1951] VLR 424; [1951] ALR 900 (Vic Sup Ct, Smith J). [Discussed in no
te,
25 ALJ 697.]
129. Protection of animals Prevention of disease in live stock .] The preve
ntion of
disease in animals such as sheep and cattle is a charitable purpose.
MCGARVIE SMITH INSTITUTE V CAMPBELLTOWN MUNICIPAL COUNCIL (1965)
83 WN (Pt 1) (NSW) 191; 11 LGRA 321; [1965] NSWR 1641 (NSW Land & Valuation Ct).

130. Protection of animals Gift to Animal Welfare League (Vic) .] A testato
r left
money in trust for the Animal Welfare League of Victoria. Held, that as the purp
oses of the
League were directed to the welfare of animals, and in the main sick animals, an
d tended to
promote human feelings and improve public morality, the bequest was a valid char
itable gift.
131. Protection of animals Gift to Royal Society for Prevention of Cruelty to
Animals .]
The Royal Society for the Prevention of Cruelty to Animals is a charity.
and in
note, 39 ALJ 237.]
132. Protection of animals Gift to Cat Protection Society Body ceasing to e
xist .] A
share of residue was left by will in trust "for the general purposes of the Cat
Protection
Society" which at the date of the will was an unincorporated association but whi
ch had
become incorporated by the date of the death of the testatrix. There had been no
interruption
in the continuity of the work of the society by reason of its change in legal st
atus. No new
election of office bearers was considered necessary on incorporation and the com
pany used
the same buildings and the same bank account as before. Held, that the gift was
not one to
the unincorporated body so as to fail by reason of that body's having ceased to
exist, but it
created a purpose trust for the charitable work of the body and the share should
be directed to
be paid to the treasurer of the company to be applied for its charitable objects
, without the
necessity of directing the settlement of a scheme.
RE GOODSON [1971] VR 801 (Vic Sup Ct, Adam J). [Discussed in article, 47 ALJ 305
.]
133. Protection of animals Gift to Society for Prevention of Cruelty to Anima
ls .] A
testatrix gave her residuary estate to her trustee upon trust "to invest same &
pay annual
income & pay to the Society for Prevention of Cruelty to Animals incorp Devonpor
t" to build
a home for animals. There was an unincorporated body known as Royal Society for
Prevention of Cruelty to Animals Tasmania, which had a local branch at Devonport
. Held:
(1) There can be a bequest to an unincorporated body. (2) A gift to care for ani
mals is a
charitable purpose. (3) The testatrix had created a valid charitable trust for t
he purpose of
building a home or hospital near Devonport to care for animals in need of care.
(4) The
provisions were an effective disposition of corpus and income.
PUBLIC TRUSTEE V CLAYTON (1985) 38 SASR 1 (SA Sup Ct, Mohr J).
546. Public benevolent institutions What constitutes Characteristics .] T
he taxpayer
was a non-profit organization whose work was predominantly that of providing cli
nical
services to people by way of psychotherapy for psychological disorders or abnorm
alities.
Those conditions were treated using techniques embracing personal consultation,
and
marriage, family and group counselling. The taxpayer charged a standard fee for
a clinical
consultation based on a percentage of professional rates, according to a client'
s ability to pay.
As a marriage counselling organization approved by the Attorney-General, the tax
payer also
received grants from the Attorney-General's Department. Fees and grants were use
d by the
taxpayer to defray outgoings on wages, etc. The taxpayer was found by the Admini
strative
Appeals Tribunal to be a public benevolent institution under s 10(1)(ba) of the
Pay-roll Tax
Act 1971 (Vic) and an appeal was dismissed. Held, dismissing the Commissioner's
further
appeals: (1) The relief of poverty or the provision of services to those in fina
ncial need are
not essential characteristics of benevolence. Nor does the levying of a charge f
or the service
remove the element of benevolence. (2) The question of payment for services shou
ld not be
approached on the basis that the making of a charge is prima facie inconsistent
with
benevolence. To do this is to make poverty in the nature of destitution an essen
tial
characteristic of benevolence. (3) The service was predominantly the treatment o
f mental
conditions or disability by psychotherapy, and these conditions were such as to
arouse
community compassion and so engender the provision of relief. Those findings wer
e
sufficient to bring the taxpayer within the concept of public benevolent institu
tion in s
10(1)(ba) of the Pay-roll Tax Act.
[(1990) 21 ATR 665; 90 ATC 4,752 (which affd (1989) 2 VAR 516; 20 ATR 3233; 89 A
TC
2,001) affd.]
COMMISSIONER OF PAY-ROLL TAX V CAIRNMILLAR INSTITUTE [1992] 2 VR 706;
(1992) 23 ATR 314; 92 ATC 4,307 (Vic Sup Ct FC).
547. Public benevolent institutions Marriage counselling organization .] Th
e appellant
was an approved marriage counselling organization under the Family Law Act 1975
(Cth). Its
principal activities were to provide, for a fee, counselling services to the pub
lic on all aspects
of marriage. The Administrative Appeals Tribunal of Victoria rejected the claim
that it
qualified for exemption as a public benevolent institution within s 10(1)(ba) of
the Pay-roll
Tax Act 1971 (Vic). Held, dismissing an appeal: (1) The question to be decided w
as
essentially whether in the common language of the community the service which th
e
taxpayer provided fell within the description of benevolent as used in the relev
ant sense. (2)
The work of the taxpayer, while entirely commendable socially and of great value
to its
recipients and the community generally, was preventative in nature, akin to trai
ning,
education or improvement, and was different from the work of a benevolent instit
ution. (3)
The category of persons seeking attention from the taxpayer did not fall directl
y or by
analogy within the descriptions given in the cases of categories for which publi
c benevolent
institutions might be organized to provide relief.
[(1988) 2 VAR 499; 20 ATR 3217; 88 ATC 2,080 affd.]
MARRIAGE GUIDANCE COUNCIL (VIC) V COMMISSIONER OF PAY-ROLL TAX
(VIC) (1990) 21 ATR 1272; 90 ATC 4,770 (Vic Sup Ct, McGarvie J).
548. Public benevolent institutions Aboriginal Co-operative Society .] Held
: (1) Land
which was occupied and intended to be acquired by a Community Advancement Societ
y
under the Co-operation Act 1923 (NSW), the objects of which included the relief
of poverty,
sickness, destitution, distress, suffering, misfortune or helplessness of needy
members of the
Aboriginal community in the particular area, was a public benevolent institution
and as such
exempt from rating. (2) The requirement that any surplus land be held in perpetu
ity for the
use and benefit of Aboriginals in Australia made it clear that such land must be
held on a
charitable trust and the current disadvantaged position in Australia of Aborigin
als was such
that any valid charitable trust for their benefit must also be for public benevo
lent purposes.
[(1991) 73 LGRA 178 affd.]
[Further proceedings see (1995) 86 LGERA 430.]
MACLEAN SHIRE COUNCIL V NUNGERA CO-OPERATIVE SOCIETY LTD (1994) 84
LGERA 139 (NSW Sup Ct CA).
549. Recreation Provision of facilities for "recreation or other leisuretime
occupation"
Ambiguous trust instrument Community hall Evidence of past usage of hall .]
Held:
(1) Where the words of a trust instrument are ambiguous owing to a deficiency of
description
of the trust thereby created, evidence of past usage of the subject property is
admissible on
the question of whether or not the trust should be declared to be charitable. (2
) In
circumstances in which a hall, notwithstanding its occasional use for meetings o
f a Masonic
Lodge, had been devoted to the out of hours purposes and pursuits of a rural com
munity, it
was provided for "recreation or other leisuretime occupation" within the meaning
of the
Trusts Act 1973 (Q), s 103. Accordingly, the hall having been made available to
members of
the public at large, the trust upon which it was held was charitable.
RE SAMFORD HALL TRUST [1995] 1 Qd R 60 (Q Sup Ct, Macrossan CJ).
550. Recreation Land for use for recreational activities of residents Power
of local
authority to sell .] Land (being a sports oval) which was acquired by a counci
l in 1888 was
allegedly the subject of an express declaration of trust, under which the land w
as to be held
on trust for the benefit of the public. The instrument creating the trust was no
t to be found,
though minutes, etc, of the council recorded its existence at the time. In 1991
the council
sought a declaration that the court had power under the Trustee Act 1936 (SA), s
s 59(b) and
69(b), to authorize the sale of the land. Under the District Councils Act 1887 (
SA), s 105, the
council had power to purchase lands for the public use of the district as a recr
eation ground
and might accept conveyances of land for recreational purposes "upon such trusts
or for such
purposes as may be declared by the donor". Under the Local Government Act 1934 (
SA), s 5,
"park lands" were defined to mean: "any open or enclosed lands included in or ad
joining the
area which are declared or set apart for the use and enjoyment of the inhabitant
s of the area".
In 1988, the definition of "park lands" was altered to mean land declared or set
apart as a
park, or set aside for the use and enjoyment of the public. The Trustee Act, s 5
9(b),
empowers the court to authorize trustees, among other things, to sell trust prop
erty
notwithstanding an absence of power to do so in the trust instrument or that the
trust
instrument forbids it. Section 69(b) permits the trustee to apply for applicatio
n of the trust
estate cy-pres. On appeal, Held: (1) The council had power in 1888 to purchase t
he land and
to execute a declaration of trust specifying the purposes for which the land was
to be held.
(2) The secondary evidence available supported a valid and enforceable trust for
(private)
charitable purposes. (3) In the absence of clear and convincing evidence of the
relevant terms
of the trust it could not be held that, as a charitable trust for public recreat
ion, it contained by
necessary implication a prohibition on the sale of the land. (4) (by majority) T
here was
sufficient minuted evidence that the original declaration of trust in 1888 was t
o hold the land
"for the public use of the District as a recreation ground" and, in the absence
of any
prescribed procedure for the making of a declaration or the setting aside of the
land as park
lands in the Local Government Act, the action of the council in executing the de
ed of trust
and its subsequent dealing with the land constituted a setting aside of the land
for use and
enjoyment of the public. Accordingly, the land was "park land" within the meanin
g of the
Local Government Act, s 5. (5) (by majority) The council had power to sell land
which is
"park land" under the Local Government Act in the absence of any specific prohib
ition
therein. (6) Where property was subject to the terms of a charitable trust, the
powers under
the Trustee Act, s 59(b) were not available. (7) The power under the Trustee Act
, s 69, to
approve a cy-pres scheme, includes power to make a declaration for the purposes
of
authorizing a scheme to sell land held under a charitable trust, and the matter
should be
referred back to the trial judge for determination under s 69.
[(1992) 75 LGRA 145; and 76 LGRA 226 affd in part.]
BURNSIDE CITY COUNCIL V A-G (SA) (1993) 61 SASR 107; 81 LGERA 167 (SA Sup Ct
FC). [Discussed in note, 1 LGLJ 65.]
[9] Pt II. Non-Charitable Purposes.
134. Gifts for benefit of individuals Fund to provide payments to employees d
isabled by
accidents .] The employees of a company agreed to form an accident fund for th
e relief of
employees who might be disabled by accidents suffered in the discharge of their
duties. The
rules provided that all employees should pay to the fund weekly contributions, a
nd that
should it become necessary to dissolve the fund, any amount in hand should be di
stributed
amongst Sydney charities as might be determined by the then subscribers. Held, t
hat the fund
was not a charity.
DOUST V A-G (NSW) (1904) 4 SR (NSW) 577; 21 WN 198 (NSW Sup Ct, Simpson CJ in
Eq).
135. Gifts for benefit of individuals Trust for eventide settlement for use o
f relatives of
testator .] A testator gave part of his residuary estate to the Salvation Army
for an eventide
settlement for the use of the descendants of the testator's great grandparents.
On originating
summons King CJ held that the gift was a valid charitable trust. On appeal, Hel
d, allowing
the appeal: (1) To limit the benefit of the charity to a particular class of per
sons, however
numerous, and to narrow the class of beneficiaries introduces a refinement which
works to
deny to the gift, however benevolent and worthy may be its object, a strictly ch
aritable
purpose. The "Founder's kin" cases were not applicable and ought not be extended
to cases
such as this. (2) The language of the testator evinced a clear intention that th
e gift was not
primarily for the relief and benefit of aged persons in the community generally
but that its
operation was confined to lineal descendants of named relatives of the testator.
(3) Since the
public element essential to the creation of a legal charity was lacking, the gif
t must be held to
be a perpetuity and to fail accordingly.
[(1980) 27 SASR 200 revd.]
RE MILLS (1981) 27 SASR 200 (SA Sup Ct FC).
136. Monuments and memorials Gift to perpetuate memory of poet .] Held, tha
t a
direction in a will to establish a memorial to perpetuate the memory of the poet
was not a
valid charitable trust.
RE HAMILTON-GREY; PERPETUAL TRUSTEE CO (LTD) V MELVILLE (1938) 38 SR
(NSW) 262; 55 WN 45 (NSW Sup Ct, Long Innes CJ in Eq).
137. Monuments and memorials Trust to erect carillon .] A testator directed
his
trustees to hold his residuary estate and income upon trust to erect a carillon
at such place on
the foreshores of Sydney Harbour as they might deem expedient, or to join with a
ny other
person in erecting such carillon. Held, that the purported trust to erect the ca
rillon was not a
charitable trust, nor was it for the benefit of any ascertainable cestui que tru
st or within the
exceptional class of "monument cases", and therefore it was void.
PUBLIC TRUSTEE V NOLAN (1943) 43 SR (NSW) 169; 60 WN 84 (NSW Sup Ct, Roper
138. Monuments and memorials Gift for erection of monuments over graves and c
airn to
commemorate pioneer ancestors .] A testator bequeathed the residue of his esta
te for the
erection of monuments over the graves of his parents and grandparents and for th
e erection
of a cairn to commemorate the first settlement of his pioneer ancestors at Natim
uk, and the
balance of his estate and income for the upkeep of the monuments and cairn and "
the
beautification of Natimuk Lake and foreshore and the development of same as beau
ty spot
and tourist resort". Held, that neither the erection of the monuments and cairn
nor their
upkeep was a valid charitable purpose, but "the beautification of Natimuk Lake,
and
foreshore and the development of same as beauty spot and tourist resort" was.
RE SPEHN [1965] VR 770 (Vic Sup Ct, Gowans J). [Discussed in article, 47 ALJ 68.
]
139. Monuments and memorials Bequest for publication of writings of testator
Small
part only of work with literary merit or educational value .] A testator left
a share of his
residuary estate upon trust to apply from the capital and income such amount as
his trustee
should determine for the preparation and publication of his writings in prose an
d poetry.
Except for a very small part of the writings, they had no literary merit or educ
ational value.
The writings took a variety of forms and were concerned with many subjects and w
ere
without the colour of any particular character. Held, that the trust was not for
the
advancement of education or the public benefit, and therefore not a valid charit
able trust.
RE ELMORE [1968] VR 390 (Vic Sup Ct, Gowans J).
140. Gift to establish Catholic daily newspaper .] The testator bequeathed to
the Roman
Catholic Archbishop of Melbourne and others specific personal property "as a nuc
leus to
establish a Catholic daily newspaper", and provided that the income from that be
nefaction
should be used "for Catholic education, or any good object the Hierarchy may dec
ide, until
sufficient funds are in hand, to found the daily paper". After various other gif
ts, he
bequeathed half the residue of the estate to the Hierarchy of the Roman Catholic
Church "in
addition to the bequest, already made, to establish a Catholic daily paper". The
Supreme
Court of Victoria held that the specific gift for the establishment of the newsp
aper involved
or tended to a perpetuity, and could not be supported as a gift for a charitable
purpose; that
the specific gift being invalid, the gift of the intermediate income therefrom a
lso failed; and
that the gift of half the residue was intended for the establishment of a Cathol
ic daily paper,
and was for the same reasons invalid. Upon appeal to the High Court, Gavan Duffy
CJ, Evatt
and McTiernan JJ, were of opinion (1) that the specific gift of personalty and t
he gift of half
the residue were gifts for a charitable purpose, and therefore valid; and (2) th
at the gift of
intermediate income was also valid for the same reason. Rich, Starke and Dixon J
J, were of
opinion (1) that the gift for the establishment of a Catholic newspaper could no
t be supported
as being for a charitable purpose, and consequently failed as tending to create
a perpetuity,
and fell into residue; (2) that the gift of the intermediate income, being depen
dent on the gift
of corpus, failed with it; (3) that the gift of half the residue was for the pur
pose of founding a
Catholic daily paper, was not for a charitable purpose, and therefore failed; an
d (4) that none
of these gifts was saved by the application of s 131 of the Property Law Act 192
8 (Vic).
[[1934] VLR 22 affd.]
ROMAN CATHOLIC ARCHBISHOP OF MELBOURNE V LAWLOR (1934) 51 CLR 1; 8
ALJ 70; [1934] VLR 231; [1934] ALR 202 (HC).
141. Trust in favour of Royal Society for Prevention of Cruelty to Animals Us
e of
suburban land as bird sanctuary .] Held: (1) The testator's requirements that
a small area
of suburban land near the sea coast should be made accessible to birds and that
there should
be food and water for them did not come within the principles on which trusts fo
r the benefit
of animals were held charitable, and was void. (2) A trust could not be treated
as one in
favour of the Royal Society for the Prevention of Cruelty to Animals independent
ly of the
conditions on which the Society took, and was invalid. (3) The failure of the tr
ust in favour
of the Royal Society for the Prevention of Cruelty to Animals involved the failu
re of a trust
by way of gift over in favour of the Benevolent Society.
[(1958) 76 WN (NSW) 299 affd.]
ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, NEW SOUTH
WALES V BENEVOLENT SOCIETY OF NEW SOUTH WALES (1960) 102 CLR 629; 33
ALJR 435; [1960] ALR 223 (HC).
142. Gift for improving breeding and racing of homer pigeons .] A testator be
queathed
the residue of his estate to a charitable body for the purpose of applying the i
ncome "in
improving the breeding and racing of Homer Pigeons". Held, that the gift was not
for a
charitable purpose in the legal sense.
[[1973] Qd. R 406 affd.]
ROYAL NATIONAL AGRICULTURAL & INDUSTRIAL ASSOCIATION V CHESTER
(1974) 48 ALJR 304; 3 ALR 486 (HC). [Discussed in note, 91 LGR 167.]
143. Gift for "patriotic purposes" .] A testator gave his residuary estate to
trustees on trust
"to set apart a sum of 1,000 to be expended by my trustees from time to time and
at their
discretion for any patriotic purposes they may approve of, and lastly, to invest
the balance of
my residuary estate and to pay the income" to a tenant for life, with remainders
over. Held,
that the legacy for "patriotic purposes" being a gift for purposes of general pu
blic utility,
some of which were not necessarily charitable, was too wide to be a good charita
ble bequest,
and failed.
RE TYSON; TYSON V WEBB (1906) 7 SR (NSW) 91; 24 WN 6 (NSW Sup Ct, Street J).
144. Gift "for the benefit of any deserving female" of class "whose income does
not for the
time being exceed" 200 per annum "in case of illness or otherwise as the Committe
e may in
its absolute discretion think fit" .] The testatrix bequeathed her residuary e
state upon a
trust to pay the income to a committee to be applied "for the benefit of any des
erving female"
of a certain class "whose income does not for the time being exceed" 200 per annu
m "in
case of illness or otherwise as the Committee may in its absolute discretion thi
nk fit". She
then directed that "if in the opinion of my trustees" the application of the inc
ome for the
purpose specified should become impossible, the capital and income should be div
ided
between certain institutions. Held, that the purpose specified by the testatrix
was not
charitable.
UNION TRUSTEE CO OF AUSTRALIA LTD V CHURCH OF ENGLAND PROPERTY
TRUST, DIOCESE OF SYDNEY (1946) 46 SR (NSW) 298; 63 WN 153 (NSW Sup Ct,
Nicholas CJ in Eq).
145. Gift for advancement of deserving journalists .] A testatrix directed th
at part of a
fund to be held on trust should be paid to the proprietors of a newspaper for ap
propriation in
their discretion for the advancement of deserving journalists but in such a mann
er as would
perpetuate the name of her late father, a former editor of the newspaper. Held:
(1) The gift
was not an absolute gift to the proprietors of the newspaper, the intention of t
he testatrix
being to confer a benefit on a class of persons falling within the description "
deserving
journalists". (2) The gift was for uncertain objects and tended to a perpetuity.
No criterion
was laid down as to the qualities which would make a journalist deserving. The c
lass was
indefinite in that the testatrix did not contemplate a benefit being conferred o
n a class of
journalists in existence at her death or in existence at the death of the life t
enants to the
exclusion in either event of all later members of the class. (3) The gift was no
t for a
charitable purpose, and being one in which a single purpose was stated s 37D of
the
Conveyancing Act 1919 (NSW) could not be availed of to constrain the scope of th
e single
purpose designated by the testatrix.
PERPETUAL TRUSTEE CO LTD V JOHN FAIRFAX & SONS PTY LTD (1959) 76 WN
(NSW) 226 (NSW Sup Ct, Else-Mitchell J).
146. Gift for Catholic Boys' Club .] Section 37D of the Conveyancing Act 1919
(NSW),
provides that no trust shall be held to be invalid by reason that some non-chari
table and
invalid purpose as well as some charitable purpose is included in any of the pur
poses to or
for which an application of the trust funds is directed or allowed, and any such
trust shall be
given effect to as if no application of the trust funds to or for any such non-c
haritable and
invalid purpose had been directed or allowed. A testator directed that assets of
his estate
should be applied for the formation or advancement of a Catholic Boys' Club. Hel
d: (1) The
words used in the gift did not connote a charitable purpose within the meaning o
r intention of
the Charitable Uses Act 1601 (Imp) or one which fell within any of the four reco
gnized
classes of charitable trusts. (2) Section 37D of the Conveyancing Act was not ap
plicable in
the present case where testator had named a single purpose.
[(1967) 87 WN (Pt 1) (NSW) 332 affd on these points.]
A-G (NSW) V CAHILL [1969] 1 NSWR 85 (NSW Sup Ct CA).
147. Bare trust for aged persons Not confined to relief against ills of aged
persons .]
Land was vested in the Trustees of Church Property for the Diocese of Newcastle
appointed
under s 6 of the Church of England Trust Property Act 1917 (NSW). It was used fo
r a
retirement village for aged persons. Under s 24 of that Act the Diocese of Newca
stle made an
Ordinance establishing a Department of Social Work, having a Board of Management
which
managed the retirement village. The objects of the department were defined in th
e Ordinance
to be "to co-ordinate control and further the work of social and community servi
ce within the
Diocese, including the operation of Children's and Aged People's Homes Hostels a
nd Court
Chaplaincies and all matters related thereto and any other activities which the
Synod or the
Diocesan Council may from time to time determine and allocate to it". Held, that
the land on
which the village stood did not belong to a public charity within s 132(1)(d) of
the Local
Government Act, and therefore was not exempted from liability to shire rates.
[(1973) 22 FLR 247; 26 LGRA 408 affd].
TRUSTEES OF CHURCH PROPERTY OF DIOCESE OF NEWCASTLE V LAKE
MACQUARIE SHIRE COUNCIL [1975] 1 NSWLR 521; (1975) 33 LGRA 11 (NSW Sup Ct
CA). [Discussed in note, 50 ALJ 472.]
148. Bare trust for aged persons Not confined to relief against ills of aged
persons .]
While to make a trust for the aged charitable it need not necessarily be limited
to the aged
needy or the aged sick, there must be some element, quality, or characteristic p
ertaining to
the class of aged people from or in respect of which relief ought in the public
interest to be
given. A trust for aged persons simpliciter is therefore not a charitable trust.

NSW NURSING SERVICE & WELFARE ASSOCIATION FOR CHRISTIAN SCIENTISTS
V WILLOUGHBY MUNICIPAL COUNCIL (1968) 88 WN (Pt 1) (NSW) 75; 16 LGRA 65;
[1968] 2 NSWR 791 (NSW Land & Valuation Ct).
149. Gift for erection of church Conditional on erection on particular site .
] A gift "to
the trustees of the Presbyterian Church at Sale" to be applied (without any limi
tation of time)
in building a church, but solely on condition that it should be built in a parti
culr position on a
particular piece of land with a proviso that otherwise the gift should lapse int
o residue, is not
a good bequest to a charity. The condition is not a condition subsequent.
150. Gift to person rendering in any year "the greatest benefit to humanity" .]
A testator
directed payment each year of the income of his residuary estate to the person w
hom an
appointed Board considered to have rendered by discovery or otherwise during the
year "the
greatest benefit to humanity". Held, that the gift was not a good charitable gif
t and was
invalid.
RE BELL; BALLARAT TRUSTEES, EXECUTORS & AGENCY CO LTD V BELL [1943]
VLR 103; [1943] ALR 192 (Vic Sup Ct, Gavan Duffy J). [Discussed in note, 17 ALJ
86.]
151. Gift to Government department .] A testator gave one-fourth of the resid
ue of his
estate to the Children's Welfare Department. Held, that the gift was not void si
nce it did not
constitute a gift to the State or Government of Victoria, but, providing the Dep
artment was
prepared to utilize the bequest for the benefit of children needing its care, in
some way over
or above its normal duties, the gift would take effect. A gift for carrying on t
he ordinary
activities of a Government department pursuant to a statute, is not a gift for c
haritable
purposes, even if the activities are such that if carried on by private persons
they would be
charitable.
RE CAIN; NATIONAL TRUSTEES EXECUTORS & AGENCY CO OF A/ASIA LTD V
JEFFREY [1950] VLR 382; [1950] ALR 796 (Vic Sup Ct, Dean J). [Discussed in notes
, 25
ALJ 173; 5 Res Jud 55; 1 UQLJ 63.]
152. Trust for assistance of rural producers .] By consent of all existing me
mbers, an
unincorporated association, the Victorian Rural Producers Association, was disso
lved and its
funds were disposed of by the appointment of trustees to ensure uniform action i
n fostering
and promoting the industrial and commercial interests of rural producers, to ass
ist rural
producers in such manner as the trustees deemed best, to resist demands of the w
orkers
considered by the trustees to be unreasonable and to incur expenditure considere
d necessary
in the management and administration of the fund. The intention was that when th
e trusts
became operative there would be no association in existence and, therefore, no m
embers of
the association. The persons who contributed the funds did not intend to retain
any interest in
them. Held: (1) The trust was wholly for non-charitable purposes and, being neit
her a trust
for individuals nor for charitable purposes, was invalid. (2) Assuming that it w
ould have
been otherwise effective to create a trust and to confer on the trustees power t
o apply the
funds and money for the purposes indicated, the trust was invalid as infringing
the rule
against perpetuities. (3) There was neither a resulting trust to the members of
the association
nor a beneficial interest passing to the trustees. (4) Accordingly the beneficia
l interest in the
funds passed to the Crown as bona vacantia.
RE PRODUCERS' DEFENCE FUND [1954] VLR 246; [1954] ALR 541. (Vic Sup Ct, Smith
153. Gift to Girls' Friendly Society .] The constitution of a "Girls' Friendl
y Society"
provided that it was a society of girls and women who accept the Christian faith
and seek to
serve God. Its objects were stated to be (a) to reunite girls and women in a fel
lowship of
prayer, service and purity of life for the glory of God; (b) to offer to its mem
bers friendly
comradeship and opportunities of service to others and arrange introductions fro
m branch to
branch and from one country to another; (c) to encourage its members in loyalty,
faithfulness
in work and home life and self-control in all things. Held: (1) The purposes of
the society
were not charitable. (2) The validity of a testatmentary gift to the society cou
ld not be upheld
as being an immediate and absolute gift made beneficially to the members as at t
he date
thereof.
RE WILSON'S GRANT; FIDELITY TRUSTEE CO LTD V JOHNSON [1960] VR 514 (Vic
Sup Ct, Hudson J).
154. Gift to Anti-Vivisection Society .] The Anti-Vivisection Society, the le
ading object
of which is to secure the abolition of vivisection by demanding its prohibition
by law, is not a
charitable institution.
and in
note, 39 ALJ 237.]
155. Gift for establishment of native flora and fauna on land .] A gift for t
he purchase and
establishment of a suitable area of land upon which native fauna and flora may b
e
established, such land to be properly fenced and supervised by a permanent range
r so that in
the course of time native fauna and flora may without hindrance be encouraged to
establish
itself thereon, is not a charitable gift.
RE GREEN [1970] VR 442 (Vic Sup Ct, Anderson J). [Discussed in note, 44 ALJ 506.
]
156. Gift for propagating and spreading doctrine of faith of Society of Freethi
nkers .] A
testator provided that after the death of his son and daughter, to whom the whol
e income of
his estate was given, his trustees should: "hand over all my real and personal [
estate] to four
trustees, appointed by the Incorporated Body of Freethinkers of South Australia
for the
benefit of that institution, for the purpose of propagating and spreading the do
ctrine of their
faith in South Australia. Should there be no incorporated body of freethinkers a
t the time, my
estate shall accumulate until such a body is incorporated, and should there be a
ny
impediment as to their receiving it, it shall accumulate until such impediment i
s removed".
An Incorporated Body of Freethinkers had been formed but had since become defunc
t. Held:
(1) An integral part of the society having gone, and there being no power to res
tore it, or do
any corporate act, the society's corporate existence had been extinguished befor
e the
testator's death, and the primary gift therefore failed. (2) The substitutionary
gift not being
for the relief of poverty, the advancement of education or religion, or for othe
r purposes
beneficial to the community, did not show a general charitable intention and, th
erefore,
failed as being contrary to the rule against perpetuities.
RE JONES [1907] SALR 190 (SA Sup Ct FC).
157. Gift to Archbishop to apply as he should in his sole and uncontrolled disc
retion think fit
for benefit of diocese .] A testator left his residuary estate upon trust to p
ay the income to
his wife for life so long as she should not remarry and "from and after her deat
h or
remarriage to pay the residuary trust funds to the Archbishop for the time being
of the
Corporation of the Synod of the Diocese of Brisbane to apply the income thereof
as he shall
in his sole and uncontrolled discretion think fit for the benefit of the said di
ocese". Held, that
the gift did not constitute a good charitable trust, either as being a trust for
the advancement
of religion or as being a trust for other purposes beneficial to the community,
namely, a trust
for purposes beneficial to a class of the public within a defined area.
QUEENSLAND TRUSTEES LTD V HALSE [1949] QSR 270 (Q Sup Ct FC). [Discussed in
notes, 23 ALJ 605; 1 UQLJ 74; 23 Law Inst J 190.]
158. Gift to "any deserving Roman Catholic institution" .] A testator by a co
dicil to his
will left portion of his estate to his trustees upon trust "at their discretion
to pay the same to
any deserving Roman Catholic institution". Held: (1) The trust failed for uncert
ainty. (2) The
159. Gift for manse or other purposes determined by church committee .] A tes
tatrix
devised a house and land to the Presbyterian Church of Queensland "to be used fo
r a Manse
or for such other purpose as the Session and Committee of Management of the said
Church
at Warwick aforesaid may from time to time determine". Held, that as the purpose
s for which
the Session and Committee of Management of the Presbyterian Church at Warwick co
uld
determine to use the house and land were not so clearly defined so as to preclud
e their being
used for other than charitable purposes, the gift was not a good charitable gift
.
RE ROSS; PIDDINGTON V PRESBYTERIAN CHURCH OF QUEENSLAND [1964] Qd R
160. Gift to "Brisbane Revival Centre" Objects including non-charitable objec
ts .] A
testator made dispositions to "Brisbane Revival Centre" for its use and benefit
absolutely. A
body known by that name had been established in 1963; it had never been incorpor
ated; at
the testator's death it had no formal constitution or rules; its membership fluc
tuated. At a
meeting of the Brisbane Revival Centre in 1971 a written constitution was adopte
d. The main
object of the Centre was: "To propagate the Christian religion by all means and
avenues
possible throughout the world". The objects clause concluded: "It is hereby expr
essly
declared that each sub-clause of this clause shall be construed independently of
the other
sub-clauses hereof and that none of the objects mentioned in any sub-clause shal
l be deemed
to be merely subsidiary to the objects mentioned in any other sub-clause". Held:
(1) An
absolute gift for the immediate beneficial enjoyment of those who were members o
f the
association at the date at which the gifts took effect was not intended: the Bri
sbane Revival
Centre was intended to take the gifts to it in the character of a trustee. (2) A
ny trust intended
for the benefit of the present and future members of the Centre failed as the be
neficiaries
thereof were not ascertained or ascertainable. (3) The Constitution having been
carefully
drafted and deliberately adopted at a meeting, the objects clause should be cons
trued
according to its literal meaning and no object deemed subsidiary to any other ob
ject. (4)
Accordingly the subject matter of the gifts might be employed for purposes which
were not
charitable, and the gifts failed as infringing the rule against perpetuities. (5
) A gift for its own
use and benefit absolutely to a religious body, not subject to any written const
itution or rules
for the application of property, was not a gift which must be employed only for
charitable
purposes, and the gifts failed for that reason. (6) The gifts to the Brisbane Re
vival Centre be
declared to be invalid.
RE HARGREAVES [1973] Qd R 448 (Q Sup Ct, Lucas J).
161. Gift for expansion of co-operation and work of co-operative movement .]
A testator
left four-fifths of a substantial residuary estate to his wife for life and afte
r her death "upon
trust to pay the same to Westralian Farmers Co-Operative Limited ... to be inves
ted by that
company in any investment of trust funds and the income from such investment to
be applied
in such manner as the directors think fit for the expansion of co-operation and
the work of
the co-operative movement in Western Australia". Held: (1) The testator intended
that the
trust should be used to aid and enlarge the actual work of co-operation and the
co-operative
movement as it existed in Western Australia and that it was not merely or even p
artly to
promote or promulgate a theoretical principle or ideology or a philosophy of lif
e and that the
gift was therefore not valid as a trust for the advancement of education. (2) Al
though the
enlargement of the number and scope of trading co-operatives in the State may we
ll benefit
many people, and even substantial sections of the community, nevertheless it is
essentially
economic and commercial in character and not an object which could be said to fa
ll within
the spirit and intendment of the Statute of Elizabeth (43 Eliz I c 4).
RE DAVIS; WATTS V DAVIS [1965] WAR 25 (WA Sup Ct, Jackson J).
162. Political purposes Dominant purpose of donee only to be achieved by legi
slative
action Gift to League having object of abolition of traffic in intoxicating li
quor .] The
testator, who died in 1939, by will executed in 1924, bequeathed money to the tr
ustees for
the time being of the Prohibition League of Tasmania. The object of the League (
which was
formed in 1921 and ceased to exist in 1927) was "the abolition of the traffic in
intoxicating
beverages" to be realized "through education, legislation and adequate law enfor
cement".
Held: (1) Since the dominant purpose of the League could be achieved only by leg
islative
action, the bequest was not charitable. (2) Even if it were charitable the beque
st showed no
general charitable intention and therefore lapsed.
RE CRIPPS; CRIPPS V HOBART TEMPERANCE ALLIANCE [1941] Tas SR 19 (Tas Sup
Ct, Morris CJ).
551. Residual estate for erection and maintenance of vault and chapel for ashes
.] Held,
that a provision in a will that the "whole of the residue" of the testator's est
ate was to be held
by the trustee "for the sole purpose that he shall totally apply same for the ex
penses relating
to my cremation and the erection and maintenance of a vault and chapel in which
to house
my ashes" was void as involving a perpetuity for a non-charitable object.
PEDULLA V NASTI (1990) 20 NSWLR 720 (NSW Sup Ct, Needham J).
552. Trust for conduct of registered horse racing .] Held: (1) A trust for th
e purpose of the
conduct of registered horse racing was outside the spirit and intendment of the
preamble of
the Statute of Elizabeth I and was therefore not charitable according to ordinar
y concepts. (2)
Such a trust was not charitable within the meaning of the Trusts Act 1973 (Q), s
103, as the
activity of registered horse racing was not conducted with the object of improvi
ng the
conditions of life for the persons for whom the relevant facilities were primari
ly intended.
RE HOEY [1994] 2 Qd R 510 (Q Sup Ct, Demack J).
553. Gift for benefit of animals Not for benefit of community Gift not char
itable .]
A testator left a share of his residual estate to a veterinary surgeon, "for the
benefit of
animals generally". Held: (1) A gift for the benefit of animals is not charitabl
e per se.
Something more, by way of a benefit to the community, is required. If the object
of the gift is
to prevent cruelty to animals such a benefit may readily be perceived. It is not
enough to say
that some things done for the benefit of animals will be for the benefit of the
community. (2)
In the present case, the gift was not a charitable gift.
MURDOCH V A-G (1992) 1 Tas R 117 (Tas Sup Ct, Zeeman J).
[10-29] Pt III. Charitable Gifts and Trusts.
[10-14] Divn 1. In General
[10-13] A. Construction
[10-12] (i) Ascertainment of Objects
[10] (a) Generally
163. Rules of construction .] Per Dixon and Evatt JJ The differing rules of
construction applied to charitable and ordinary trusts considered.
A-G (NSW) V PERPETUAL TRUSTEE CO (LTD) (1940) 63 CLR 209; 14 ALJ 122; [1940]
ALR 209 (HC).
164. Construction in favour of charity .] In the case of a charitable gift, i
f the words are
capable of a meaning which will support the gift, that construction should be ad
opted.
165. Construction in favour of charity Gift to three churches .] A testatr
ix gave the
residue of her estate to be divided between the churches of three different deno
minations at
Goulburn, and declared that the legacies should be applied to such purposes as i
ndicated
"nominators", respectively representing those churches, should as to the share o
f each church
in their absolute discretion think fit. Held, that the gifts to the named church
es were gifts to
religious institutions for religious purposes and, applying the benignant rule o
f construction,
were valid charitable gifts.
166. Construction in favour of charity Change in legal status of object .]
A share of
residue was left by will in trust "for the general purposes of the Cat Protectio
n Society"
which at the date of the will was an unincorporated association but which had be
come
incorporated by the date of the death of the testatrix. There had been no interr
uption in the
continuity of the work of the society by reason of its change in legal status. N
o new election
of office bearers was considered necessary on incorporation and the company used
the same
buildings and the same bank account as before. Held, that the gift was not one t
o the
unincorporated body so as to fail by reason of that body's having ceased to exis
t, but it
created a purpose trust for the charitable work of the body and the share should
be directed to
be paid to the treasurer of the company to be applied for its charitable objects
, without the
necessity of directing the settlement of a scheme.
.]
167. Gift to institution General principles .] In determining whether a gif
t to an
association is a gift for charitable purposes the court may inquire into the obj
ects of the
association and if these are found to be charitable within the Statute 43 Eliz I
c 4, the court
may hold the gift to be for charitable purposes.
PERPETUAL TRUSTEE CO LTD V SHELLEY (1921) 21 SR (NSW) 426; 38 WN 132
(NSW Sup Ct FC).
168. Gift to institution General principles .] Per Higgins J It is true tha
t no trust is
created unless the object as well as the subject of the gift is defined but wher
e a gift is made
to a society having a distinctive charitable purpose, prima facie, the gift is f
or that purpose.
HARDEY V TORY (1923) 32 CLR 592 (HC).
169. Gift to institution General principles "Charitable institutions bodie
s and
organizations" .] A testator left the balance of his residuary estate to his t
rustees to
distribute "between such charitable institutions bodies and organizations in the
Perth-Fremantle Area as my trustees may select". Held: That the word "charitable
" applied to
the three nouns "institutions", "bodies" and "organizations", and there was no p
ossibility of
the trustees applying any part of the fund to a non-charitable purpose.
[(1950) 52 WALR 30 affd.]
SMITH V WA TRUSTEE EXECUTOR & AGENCY CO LTD (1950) 81 CLR 320; 24 ALJ
464; [1950] ALR 735 (HC).
170. Gift to institution General principles Inference of trust for charita
ble purposes .]
Per Kitto J A trust does not arise in every case of a gift to a body establi
shed for
limited objects. The nature of the objects may have provided the donor with the
motive for
his gift, and yet the gift may be a beneficial gift entitling the body to apply
the property as it
sees fit within the scope of its powers as they exist from time to time. Propert
y given to a
company, for example, is not necessarily held on trust for the objects stated in
the company's
memorandum of association, nor is property which is given to a chartered corpora
tion
necessarily held on trust for application in accordance with the charter. But if
the objects of a
body are limited to altruistic purposes, it is as an instrument of altruism that
it is likely to
attract benefactions. Very often, to say the least, it will be a proper inferenc
e, when a gift is
made to such a body, that the donor intends the gift to operate as a devotion of
the subject
property to the relevant purposes, and that the donee accepts it as such. Where
that is the case
all the elements necessary for the creation of a binding trust are present. Acco
rdingly a gift
which would be invalid unless it operates to create a charitable trust may be up
held because,
when the objects of the body which is the donee are taken into consideration, an
inference
arises that the gift is upon trust for charitable purposes (or for charitable pu
rposes and others
which are no more than ancillary).
SYDNEY HOMOEOPATHIC HOSPITAL V TURNER (1959) 102 CLR 188; 33 ALJR 27;
[1959] ALR 782 (HC).
171. Gift to institution General principles Inference of trust for charita
ble purposes .]
Per Herring CJ The charitable nature of the gift derives from the fact that
the purposes
and objects of the institution are themselves charitable, for it is presumed tha
t a gift to such
an institution without more is to be held for its general purposes and objects.
The devotion to
charity is effected by the institution itself applying the income each year as i
t is received to
its purposes and objects. It is with an obligation so to apply the income each y
ear that it
receives it. There is in other words a trust involved so to apply it, and the in
stitution itself,
where it is incorporated as The Carlton Home was, is the trustee and takes the i
ncome as
such Tudor on Charities (5th ed), at pp 118-9. This does not mean that it is t
o be held on
any special trust and kept separate from the general funds of the institution. F
or all the
institution's property is dedicated to the furtherance of its purposes and objec
ts, and so the
trust of the income, that is involved, will be carried into effect, if such inco
me is used to
supplement such general funds.
RE GODFREE [1952] VLR 353; [1952] ALR 595 (Vic Sup Ct, Herring CJ). [Discussed i
n
note, 26 ALJ 541.]
172. Gift to institution General principles .] Held: (1) A disposition to a
charitable
corporation is to be treated as having presumptively the necessary elements crea
ting a trust
so that the disposition to such a corporation takes effect as a trust for the pu
rposes of the
corporation rather than as a gift to it to be applied as it sees fit. (2) The ef
fect of such a
presumption is that, while the purpose exists, the failure of a particular insti
tution, which is
the vehicle through which the purpose is intended to be implemented, does not pr
event the
trust for such purposes being carried out. (3) Accordingly a trust for a particu
lar purpose may
be carried into effect as long as the purpose itself remains unfulfilled, whethe
r or not the
funds of the institution have been fully expended.
SIR MOSES MONTEFIORE JEWISH HOME V HOWELL AND CO (NO 7) PTY LTD
[1984] 2 NSWLR 406 (NSW Sup Ct, Kearney J).
173. Gift to institution General principles .] A bequest, without more, of
a fund or
trust to pay the income in perpetuity to a society, whether corporate or unincor
porate, whose
objects are exclusively charitable, will, if the circumstances justify the infer
ence that the
bequest is intended for the furtherance of the work of the body, be upheld as a
gift for the
purpose of a charitable body and therefore for a charitable purpose. A like bequ
est to a
society, whether corporate or unincorporate, whose objects are in no respects ch
aritable, will,
if the circumstances justify the inference that the bequest is intended for the
furtherance of
the work of the body, fail as a gift for the purpose of the body and, therefore,
for a purpose
which is not charitable. If there is a like bequest to a society, whether corpor
ate or
unincorporate, whose objects are diverse, so that some considered apart would be
charitable
and others (not merely ancillary) considered apart would be non-charitable, and
the
circumstances justify the inference that the bequest is for the work of the body
, it will also
fail because it is a gift for the purpose of the body, and therefore, for a purp
ose which is not
charitable, and s 131 of the Property Law Act 1958 (Vic) cannot apply as though
it were a
trust for both charitable and non-charitable purposes.
and in
note, 39 ALJ 237.]
174. Gift to institution Nature of gift Wesleyan Missionary Society .] A
testator
directed his trustees to hold money upon trust "to pay over the same into the ha
nds of the
secretaries for the time being of the Wesleyan Missionary Society in London". He
ld, that the
gift was for the purposes of the society; and, as those purposes were known to t
he law as
charitable purposes, the gift was valid.
[(1923) 26 WALR 44 affd.]
HARDEY V TORY (1923) 32 CLR 592 (HC).
175. Gift to institution Nature of gift Institution having incidental and a
ncillary objects
Non-charitable when considered independently .] A gift of income was bequeat
hed by
a homoeopathic practitioner to the Sydney Homoeopathic Hospital to the funds of
which he
had subscribed during his lifetime. The hospital was founded to afford gratuitou
s medical
and surgical aid under the homoeopathic system to sick persons in destitute circ
umstances
and to others on such terms of payment as determined by a Board. From its founda
tion in
1902 until 1941 the hospital was conducted as a homoeopathic hospital and visite
d by
medical practitioners who practised their profession in accordance with the prin
ciples of
homoeopathy. From 1941 to 1945 homoeopathetic treatment was given to patients by
the
matron of the hospital but since 1945 no such treatment has been given at the ho
spital
because no homoeopathic practitioners had sought to have patients admitted. Ther
e had
always been at least one bed available at the hospital in case a homoeopathic pr
actitioner
should desire to have a patient admitted. The hospital was incorporated under th
e Public
Hospitals Act 1929 (NSW). Held: (1) In the absence of evidence to the contrary,
the court
would assume that the object of the gift to the hospital was for the benefit of
the community
and therefore charitable. (2) As there had not been such a change in the object
or purposes of
the hospital as to destroy its identity as it existed with the institution named
by the testator in
his will, the gift had not failed.
335; [1952] ALR 729 (HC).
176. Gift to institution Nature of gift Roman Catholic religious orders .]
A testator,
who died in 1955, by his will, made in 1954, provided by cll 3 and 5: "(3) As to
my property
known as Èlmslea' ... upon trust for such Order of Nuns of the Catholic Church
or the
Christian Brothers as my executors and trustees shall select ... (5) As to all t
he rest and
residue of my estate both real and personal ... upon trust to use the income as
well as the
capital to arise from any sale thereof in the provision of amenities in such con
vents as my
said executors and trustees shall select either by way of building a new convent
... or the
alteration of or addition to existing buildings occupied as a convent or in the
provision of
furnishings in any such convent or convents ... the receipt of the Reverend Moth
er ... of that
particular order of nuns or convent shall be a sufficient discharge ... for any
payment under
this clause". It was not disputed that the phrase "orders of nuns" was not used
in its strict
canonical sense, but included also Congregations of Sisters, and among the order
s were
contemplative orders, which were not regarded as charitable in the legal sense o
f that word.
By s 37D of the Conveyancing Act 1919 (NSW): "(1) No trust shall be held invalid
by reason
that some non-charitable and invalid purpose as well as some charitable purpose
is or could
be deemed to be included in any of the purposes to or for which an application o
f the trust
funds or any part thereof is by such trust directed or allowed". Held: (1) The g
ift in cl 5 was
saved from invalidity by s 37D of the Conveyancing Act. That section applied not
only where
a testator had expressly indicated alternative purposes, the one charitable and
the other
non-charitable or not necessarily charitable, but applied also where, as here, t
he gift was for a
purpose described in a composite expression embracing both charitable and non-ch
aritable
purposes, for both orders of nuns; the charitable and non-charitable active an
d
contemplative, the valid and the invalid were embraced in the single phrase "O
rders of
Nuns". The section, which applied alike to invalidity due to uncertainty or perp
etuity, would
apply where the gift was for an object so predominantly charitable such as an
order of
nuns that a charitable intention on the part of the testator could be fairly a
ssumed, or for
(say) benevolent purposes, which connoted charitable as well as non-charitable p
urposes. Not
every expression, however, which might possibly justify a charitable application
was brought
within the section. (2) There were ample indications in this case to displace th
e prima facie
conclusion that the gift in cl 3 was to the individual members of the selected o
rder of nuns or
Christian Brothers at the date of the testator's death so that they could togeth
er dispose of it
as they thought fit. The dominant and sufficiently expressed intention of the te
stator was that
the gift in the clause was to be an endowment of the order or orders selected to
be held as an
endowment, and that, as the order or orders were according to their form perpetu
al the gift
must, if it was to a non-charitable order, fail. The gift made by cl 3 was, ther
efore, valid by
reason only of the provisions of s 37D of the Conveyancing Act and the power of
selection
given by the clause to the trustees did not extend to contemplative orders of nu
ns.
[(1958) 32 ALJR 44; [1958] ALR 257 varied.]
LEAHY V A-G (NSW) (1959) 101 CLR 611; 33 ALJR 105; [1959] ALR 869; [1959] AC
457; [1959] 2 WLR 722; [1959] 2 All ER 300 (PC).
177. Gift to institution Nature of gift Roman Catholic religious orders .]
The
testator devised to the Abbot of Mount Malleray, Ireland, or his successors, lan
d in New
South Wales, to be held by him and his successors in trust for the religious ord
er of
Cistercians, and in the event of the offer's not being accepted, he devised the
land to the Prior
of the Redemptorist Fathers of Waratah, NSW, or his successors, in trust for the
monks of the
order of Our Holy Redeemer. The testator also ordered that the same property cou
ld never be
sold, and must always remain the property of the Roman Catholic Church. Held: (1
) The
testator intended to create a perpetuity, and did not intend the land to become
the personal
property of the individual members of the religious orders at the time of his de
ath. (2) A gift
of property to a voluntary association may be a valid charitable gift, if the co
urt on inquiry
finds that the association exists to carry on and is carrying out charitable wor
ks. (3) Applying
this test the gift to the community of the Cistercian order was not, and that th
e gift to the
Redemptorist order was, a good charitable trust.
178. Gift to institution Nature of gift Roman Catholic convent .] A testa
trix
bequeathed the balance of her residuary estate to trustees upon trust to divide
equally
between three beneficiaries including the Carmelite Monastery, Dulwich Hill, for
the benefit
of that institution. An originating summons was taken out to determine the valid
ity of the
gift. The monastery consisted of nuns living in a community. Their duties includ
ed
community duties, prayer and spiritual reading or work in their cells. By the Ru
les of the
Order no member could possess property for her individual use. Held, that there
was no
sufficient indication to displace the prima facie conclusion that the gift was t
o the individual
members of the convent at Dulwich Hill so that they could together dispose of it
as they
thought fit; and accordingly the bequest was valid.
RE GROVENOR; PERMANENT TRUSTEE CO (NSW) V PRINCIPAL IN CHARGE OF
CARMELITE MONASTERY AT DULWICH HILL [1965] NSWR 723 (NSW Sup Ct,
McLelland CJ in Eq).
179. Gift to institution Nature of gift Vocational Guidance Centre .] A t
estator gave
one-fourth of the residue of his estate to the Victorian Vocational Guidance Cen
tre. Held,
that the bequest to the Centre, which was an unincorporated body with a written
constitution,
was valid since the gift was made to the body with no statement of the purposes
to which it
was to be applied. If, however, a trust had been created, semble that the gift w
ould have been
void, because it would have been a trust for a non-charitable purpose, irrespect
ive of whether
it created a perpetuity or not.
JEFFREY [1950] VLR 382; [1950] ALR 796 (Vic Sup Ct, Dean J). [Discussed in notes
, 25
ALJ 173; 1 UQLJ, No 3, p 63.]
180. Gift to institution Nature of gift Gift to Girls' Friendly Society .]
The
constitution of a "Girls' Friendly Society" provided that it was a society of gi
rls and women
who accept the Christian faith and seek to serve God. Its objects were stated to
be (a) to
reunite girls and women in a fellowship of prayer, service and purity of life fo
r the glory of
God; (b) to offer to its members friendly comradeship and opportunities of servi
ce to others
and arrange introductions from branch to branch and from one country to another;
(c) to
encourage its members in loyalty, faithfulness in work and home life and self-co
ntrol in all
things. Held: (1) The purposes of the society were not charitable. (2) The valid
ity of a
testamentary gift to the society could not be upheld as being an immediate and a
bsolute gift
made beneficially to the members as at the date thereof.
RE WILSON'S GRANT; FIDELITY TRUSTEE CO LTD V JOHNSON [1960] VR 514 (Vic
Sup Ct, Hudson J).
181. Gift to institution Nature of gift Rationalist Association of Australi
a Ltd .] A
testator's will provided that the capital of a residuary trust fund should be he
ld "upon trust for
the Rationalist Association of Australia Limited for its general purposes". The
donee was
incorporated as a company limited by guarantee. Held, that the gift to the Ratio
nalist
Association of Australia Ltd was not a gift to it in trust for the objects for w
hich it was
incorporated, with the result that the gift was a valid gift to that body withou
t qualifications.
RE PYKE; PERPETUAL EXECUTORS & TRUSTEES ASSOCIATION OF AUSTRALIA
LTD V PYKE [1974] VR 788 (Vic Sup Ct, Gowans J).
182. Gift to institution Nature of gift Charities selected by trustees .]
A testator
directed his trustees to set aside a sum sufficient to produce by investments an
annuity to his
wife for life, the investments from her decease to fall into residue, and the re
sidue, in the
events which happened, passed under his will to his father, V. By his will, V ap
pointed two
trustees, who were also two of the trustees of the son's will, and gave his esta
te to them upon
trust that they, or the survivor of them, should convert it, should pay two lega
cies to two
named charities, and should hold the final residue on trust to pay or distribute
among
charitable institutions, bodies or societies (including, if the trustees thought
desirable, the
Adelaide Hospital) that might exist at the time of his decease in, or within 20
miles of, the
city of Adelaide, for the benefit of such charitable institutions, as had for th
eir philanthropic
objects the relief of aged, impotent or poor people, maintenance of the sick and
helpless and
schools of learning, the education and preferment and support of orphans or negl
ected
children, the assistance and reform of fallen women, the support of persons deca
yed and
widows and their children, and the maintenance, assistance and reform of persons
addicted to
drunkenness. Held, that the wording of the gift to the charities showed that V d
id not intend
that the charities selected by the trustees should be trustees for the benefit o
f such charities as
had for or among their objects the purposes specified by the testator, but were
themselves to
enjoy the gift and to have the objects specified by V.
183. Gift to institution Nature of gift Adelaide Hebrew Congregation .] A
testator
gave all his freehold properties (subject to a life interest in favour of his wi
fe) upon trust to
establish the "M de Vedas Perpetual Synagogue Fund" and to pay out of the net in
come
arising the cost of administering the fund and the balance "to the Adelaide Hebr
ew
Congregation in perpetuity". The Adelaide Hebrew Congregation was an unincorpora
ted
association representing the orthodox Jewish congregation in the State of South
Australia. Its
main concerns were the religious and educational needs of adherents of the Jewis
h faith.
Held: (1) The gift was not a gift to the individual members of the Adelaide Hebr
ew
Congregation. (2) The subject matter of the gift consisted of an equitable right
, in perpetuity,
to annual payments of the net income of the Fund after deducting the administrat
ive expenses
referred to in the will, with the intention that the corpus should remain in the
hands of the
testator's trustee. (3) The gift was for the purposes of the work of the Adelaid
e Hebrew
Congregation, those purposes were, at the material time, either religious or edu
cational, and
the gift was therefore a valid charitable gift.
RE DE VEDAS [1971] SASR 169 (SA Sup Ct, Wells J).
184. Gift to institution Nature of gift TB Sailors' and Soldiers' Associati
on .] The
testator appointed the Public Curator of Queensland his executor and trustee and
bequeathed
the whole of his estate to the plaintiff "upon trust for the TB Sailors' and Sol
diers'
Association of Queensland (whose office is at present in Brisbane aforesaid) abs
olutely for
such purposes as the Board or Committee of Management of the said association sh
all in its
unfettered discretion and in accordance with its rules at any time and from time
to time
decide". At the time of the execution of the will the TB Sailors' and Soldiers'
Association of
Queensland was a voluntary association. Between the execution of the will and th
e death of
the testator letters patent were issued by the Lieutenant-Governor in Council de
claring that
the president and chairman and members of the Board of Management of the TB Sail
ors' and
Soldiers' Association of Queensland and their successors should be a body corpor
ate. Held:
(1) Whether the testator intended a charitable gift or not, the language of the
will did not tend
to create a perpetuity and the gift was good and valid. (2) The voluntary body e
xisting before
the incorporation of the Board of Management was the beneficiary intended; and i
ts
members were entitled to the gift.
RE MCAULIFFE; PUBLIC CURATOR OF QUEENSLAND V LEEPER [1944] QSR 167 (Q
Sup Ct, Macrossan ACJ). [Discussed in note, 18 ALJ 294.]
185. Gift to institution Nature of gift Unincorporated religious body .]
A testator
made dispositions to "Brisbane Revival Centre" for its use and benefit absolutel
y. A body
known by that name had been established in 1963; it had never been incorporated;
at the
testator's death it had no formal constitution or rules, its membership fluctuat
ed. At a
meeting of the Brisbane Revival Centre in 1971 a written constitution was adopte
d. The main
object of the Centre was: "To propagate the Christian religion by all means and
avenues
possible throughout the world". The objects clause concluded: "It is hereby expr
essly
declared that each sub-clause of this clause shall be construed independently of
the other
sub-clauses hereof and that none of the objects mentioned in any sub-clause shal
l be deemed
to be merely subsidiary to the objects mentioned in any other sub-clause". Held:
(1) An
absolute gift for the immediate beneficial enjoyment of those who were members o
f the
association at the date at which the gifts took effect was not intended: the Bri
sbane Revival
Centre was intended to take the gifts to it in the character of a trustee. (2) A
ny trust intended
for the benefit of the present and future members of the Centre failed as the be
neficiaries
thereof were not ascertained or ascertainable. (3) The Constitution having been
carefully
drafted and deliberately adopted at a meeting, the objects clause should be cons
trued
according to its literal meaning and no object deemed subsidiary to any other ob
ject. (4)
Accordingly the subject matter of the gifts might be employed for purposes which
were not
charitable, and the gifts failed as infringing the rule against perpetuities. (5
) A gift for its own
use and benefit absolutely to a religious body, not subject to any written const
itution or rules
for the application of property, was not a gift which must be employed only for
charitable
purposes, and the gifts failed for that reason. (6) The gifts to the Brisbane Re
vival Centre
must be declared to be invalid.
RE HARGREAVES [1973] Qd R 448 (Q Sup Ct, Lucas J).
186. Modification or limitation of words Reference to character of trustee .]
A trust
expressed in plain language, whether the words used be sufficient or insufficien
t to satisfy
the requirements of the law, cannot be modified or limited in its scope by refer
ence to the
position or character of the trustee.
DUNNE V BYRNE (1912) 16 CLR 500; 18 ALR 122; [1912] AC 407; 81 LJ PC 202; 106 LT
394; 28 TLR 257; 56 SJ 324 (PC).
187. Modification or limitation of words Reference to character of trustee .]
Where
the purposes of a trust are expressed in plain language, the nature or public ch
aracter or the
trustee cannot be relied on to impart a charitable character to a trust.
ussed
188. Modification or limitation of words Gift for charitable purposes followe
d by
example of objects .] A testator bequeathed the residue of his estate to the f
unds of a
religious body "to be employed by them in relieving cases of need and distress a
nd in
assisting persons in indigent circumstances and in particular (but not exclusive
ly or in any
way that shall limit their discretion) in assisting and relieving persons who ha
ve been or shall
be adversely affected by the effects of" World War II. Held, that the bequest wa
s a valid
charitable bequest. The clause beginning with "and in particular" should be cons
trued as
merely giving a special example of persons in need or in distress and of persons
in indigent
circumstances; semble, if that clause stood alone, it would go beyond a valid ch
aritable
bequest.
189. Precatory words .] A testator devised all his real estate to RF for life
, and then as F
should appoint, in default of appointment to the heirs of the body of RF; in def
ault of such
issue, to the testator's right heirs. There was then a bequest of all personalty
to RF and next
the gift of an annuity of 50 to a charity during the life of RF. These words foll
owed: "And I
request the said RF to give a like annual sum and secure the payment of the same
after his
decease unto the treasurer or trustees of the said society, for the like use and
benefit and
charitable purposes of the said society". RF was appointed executor. Held, that
the words
were sufficiently certain to raise a trust in favour of the charity, binding RF
to continue and
secure the annuity after his death.
CREW V FITZGERALD (1870) 9 SCR (NSW) Eq 90; 10 SCR Eq 4 (NSW Sup Ct FC).
190. Power of selection Nature of power .] A devised a house upon trust to
permit her
husband to reside there until his remarriage or death or until he earlier advise
d the trustee
that he no longer desired to reside there, whereupon it was to be held upon trus
t for sale and
to pay the net proceeds to the "psychology department of either the University o
f Queensland
or of the University of New South Wales as directed by ... F, who shall also hav
e the right to
direct and prescribe the research project upon which such moneys are to be expen
ded". The
will also provided a bequest to the Faculty of Veterinary Science of the Univers
ity of
Queensland for the purpose of specified research. There was a general residuary
clause in
favour of the husband. F renounced and refused to exercise the power referred to
. Upon
application for determinations whether the gift failed and whether it manifested
a general
charitable intention, Held: (1) The power of appointment was entrusted to F to e
ffectuate the
intention that the property devolve upon one of the objects of the power accordi
ng to F's
discretion. (2) The testatrix intended that there be a trust for psychological r
esearch and that
the recipient should be either the University of Queensland or the University of
New South
Wales. (3) F's intervention was sought merely as a machinery provision in order
to put the
primary purpose into effect efficiently. (4) Reference to both universities in t
he bequest was
not for the purpose of appointment of one so that the other would be excluded bu
t rather for
the positive purpose of identifying two universities from which the donee of the
power was
to make his choice. (5) The right given to F to prescribe the research project d
id not imply
that the gift would fail should he decline to exercise his right; F's right was
a subsidiary
machinery provision better to effect the primary purpose of the gift. (6) As the
prime purpose
of the trust was psychological research generally, then, if the trust did fail b
y virtue of F's
having refused to exercise his powers, there was a general charitable intent and
the cy-pres
doctrine would be applied; the appropriate cy-pres order would divide the fund e
qually
between the two universities for their respective researches. (7) Were either un
iversity
incapable of applying its share of the fund into an appropriate research project
then the entire
fund should go to the other provided the latter was capable of doing so.
RE ANNANDALE [1986] 1 Qd R 353 (Q Sup Ct, Derrington J).
191. Power of selection Objects of selection Gift to be distributed amongst
a "few of
my friends, the priests" .] A testator gave his residuary estate "to be dispos
ed of"
according to the discretion of his executor and "if after my funeral expenses an
d all my just
debts are paid anything remains the same is to be distributed among a few of my
friends
namely the priests to be applied for masses for my soul". Held, that the executo
r's discretion
was not limited to the time and method of realization, but that he had a power o
f selection
among the persons indicated, and that the gift did not fail for uncertainty.
192. Power of selection Objects of selection Gift to "public charities or c
harity or
public hospital" .] A testator gave residuary trust funds to his trustees "upo
n trust to apply
the income arising therefrom for such public charities or charity or public hosp
itals in
Queensland as my trustee shall select, such income to be distributed among such
charities or
public hospitals and if more than one in such shares and proportions, and at suc
h time as my
trustees shall think proper with power to my trustees from time to time to add t
o the list of
charities or public hospitals for the time being participating in the benefit of
this trust the
names of such charities or public hospitals or to delete names therefrom tempora
rily or
permanently and without assigning any reason therefor". Held: (1) The trust was
a valid
charitable trust. (2) The following institutions or bodies were qualified for se
lection to
participate in the income: (a) Hospitals to which Pt III of the provisions of th
e Hospitals Act
1936 (Q) relate; (b) Public hospitals as defined in the Hospitals Benefit Agreem
ent Act 1945
or in the schedule thereto; (c) Ambulance brigades established under the Hospita
ls Act 1847,
the Hospitals Act 1923 and the Hospitals Act 1936; (d) Any institution or body h
aving an
object or objects as enumerated in the preamble to the Statute 43 Eliz I c 4, an
d all others
which by analogy are deemed within its spirit and intendment. (3) Hospitals whol
ly
maintained at the public expense and subject to the entire control of government
officers
were not disqualified from selection to participate in the said income. (4) The
trustees' power
of selection was one which they might use from time to time in relation to any c
harities or
public hospitals which at the time they made the selection came within the defin
ition of
public charities or public hospitals within Queensland. (5) The trustees' power
of selection
was restricted to charities in Queensland only.
Ct FC).
193. Power of selection When to be made .] A testator directed his trustees
to set aside
a sum sufficient to produce by investments an annuity to his wife for life, the
investments
from her decease to fall into residue. The residue, in the events which happened
, passed
under his will to his father, V. By his will, V appointed two trustees, who were
also two of
the trustees of the son's will, and gave his estate to them upon trust that they
, or the survivor
of them, should convert it, should pay two legacies to two named charities, and
should hold
the final residue on trust to pay or distribute it amongst charitable institutio
ns. The testator
gave his trustees full discretion in the distribution amongst the charitable ins
titutions and
bodies as to which (other than those named) should participate to the exclusion
of others, and
in what manner and shares those participating should take; the trustees were als
o empowered
to retain the capital, to apply the income to the above-mentioned objects or to
hand over the
capital without further responsibility to any persons or trustees representing a
ll or any of such
objects. Before the death of the annuitant the trustees executed an indenture tr
ansferring the
residue to a trustee for selected charities. Held, that as V's will, under which
the power to
distribute among the charities was exercisable, contemplated an immediate distri
bution of
V's estate, the power, although exercised before the death of the annuitant, was
well
exercised, and that the trustee was authorized to hand over to a person appointe
d as trustee
for the charities.
[11] (b) Error in Description
194. Falsa demonstratio .] A testator directed that the balance of his estate
"shall be
divided into three equal parts one of which shall be paid or transferred to the
said diocesan
trustees of the Church of England in Western Australia a second to the trustees
for the time
being of the hospitals and lunatic asylums in the said colony to be divided amon
g them
equally and the third to the trustees of the poor houses in the said colony". He
ld, that
although the Government Lunatic Asylum was the only one in existence and had no
trustees,
it was entitled to share pari passu with hospitals, as defined in Re Will and Co
dicil of
Padbury; Home of Peace for Dying & Incurable v Solicitor-General (WA) ((1908) 7
CLR
680), the words "trustees of" being an erroneous addition to an adequate and suf
ficient
description with convenient certainty of what was meant. The words "Poor Houses"
designated Government institutions of that name to the exclusion of private char
ities. Held,
therefore, as to both cases, that trustees should be appointed by the court, and
that the
bequest, so far as it relates to the institutions now held to be benefited, shou
ld be dispensed
under a scheme to be settled by a judge, under which the money would be used for
the
benefit of the inmates, and not to help the Government in its ordinary expenditu
re.
DIOCESAN TRUSTEES OF CHURCH OF ENGLAND IN WA V SOLICITOR-GENERAL
(1909) 9 CLR 757; 16 ALR 70 (HC).
195. Falsa demonstratio .] A gift was made to St Patrick's Orphanage, South M
elbourne.
There was no St Patrick's Orphanage at South Melbourne, and no Roman Catholic
Orphanage in the colony, except two at Geelong and one at South Melbourne, none
of them
bearing the name of "St Patrick". The testator was a member of the Roman Catholi
c Church.
Held, that he intended his gifts to be given to charitable objects in connexion
with that
church, and must be taken to mean the Roman Catholic Orphanage at South Melbourn
e,
called St Vincent de Paul Orphanage, and that the words "St Patrick's" were mere
falsa
demonstratio.
O'CALLAGHAN V SWAN (1887) 13 VLR 676 (Vic Sup Ct, Webb J).
196. Falsa demonstratio .] A testator made a gift to the Industrial School fo
r the Blind,
Brougham Place. A body styled the Royal Institute for the Blind, Inc, was formed
in 1884 to
assist the blind, and also deaf mutes. Its activities were carried on at Brougha
m Place and at
Adelaide. Held, that this institution was entitled to participate.
197. Falsa demonstratio .] A testator made a gift to the Orphan Girls' Home,
Carrington
Street, Adelaide. At the time of his death there was in Carrington Street an ins
titution called
"The Orphan Home for the Reception of Orphan Children". Its name was later chang
ed to
"The Orphan Home, Adelaide, Inc" and the building was removed to Mitcham. The ob
ject of
the institution was for the relief of destitute orphans. Held, that the Orphan H
ome was
entitled to participate.
198. Falsa demonstratio .] A testatrix provided that "the residue is to be pa
id to the Home
Mission Extension Fund of the Cong Church and the other to the London Missionary
Society
to be kept at interest". The Congregational Union had no fund known under the ab
ove name;
there was a fund known as the Home Mission and Forward Movement Board. Held, tha
t the
testatrix intended to indicate a certain purpose by the use of the words "Home M
ission
Extension", and that a gift was expressed to the Congregational Union and Home M
ission for
home mission purposes. Semble, the gift would have been construed as a general c
haritable
bequest if necessary, and be administered cy-pres.
RE TURNER; ELDER'S TRUSTEE & EXECUTOR CO LTD V MORIALTA
PROTESTANT CHILDREN'S HOMES INC [1930] SASR 223 (SA Sup Ct, Richards J).
199. Falsa demonstratio .] A testatrix gave a fund in trust for the "Protesta
nt Children's
Home at Magill". At Magill there was an institution called the "Methodist Childr
en's
Homes", and at Norton's Summit, several miles distant from Magill, was an instit
ution called
the "Morialta Protestant Children's Home", whose correspondence was frequently a
ddressed
to it at Magill. Held, that a clear intention to effect a particular object of c
harity had been
shown by the testatrix, and this object being carried out by the Morialta Protes
tant Children's
Home, it was entitled to the fund, though inaccurately described.
[Earlier proceedings see [1943] SASR 336.]
RE CUMING [1950] ALR 696 (SA Sup Ct, Paine AJ).
200. Falsa demonstratio .] A testatrix who died in England and who, so far as
was known,
had only once visited South Australia, left her residuary estate in Australia "t
o the trustees of
the Adelaide Art School, Adelaide, Australia absolutely it being my desire that
they shall
make annual grants therefrom to aid Australian students in the school to continu
e the study
of art in Europe and for such periods and subject to such conditions as the Dire
ctors of the
Adelaide Art School may from time to time decide". There was no institution or b
ody in
Adelaide known as the Adelaide Art School, but there was a body, the South Austr
alian
School of Arts and Crafts, which was formerly known as the Adelaide School of Ar
t. It was
controlled by the Minister of Education. Held: (1) The institution intended to b
e benefited
was the South Australian School of Arts and Crafts. (2) The expression of the te
statrix's
desire as to the purpose for which the fund should be used was not sufficient to
impose a
trust for that purpose, but that (the Minister of Education consenting) the orde
r of the court
should subject the fund to a trust to that effect.
RE CHANTER [1952] SASR 299 (SA Sup Ct, Mayo J).
201. Falsa demonstratio .] A testator directed his trustees to distribute in
equal parts, at
the end of each year, any balance of money in hand after payment of all legal ch
arges and
any other payments directed by the will, "to the following Societies association
s or
committees". Then followed the names of three charitable institutions which suff
iciently
answered the descriptions to effectuate his intention. This enumeration was imme
diately
followed by a fourth charitable object, namely "Blind, Deaf and Dumb Children",
the whole
clause concluding with the words "all of Brisbane, Perpetual". There was no inst
itution in or
near Brisbane known as a home or institution for blind, deaf and dumb children,
though there
was a School for the Deaf and Blind at South Brisbane conducted by the Departmen
t of
Public Instruction and administered under the Blind, Deaf and Dumb Children Inst
ruction
Act 1924 (Q), with which was associated a committee who however did not control
the
institution but raised and distributed money for the benefit of the children who
boarded there.
Held, that the fourth institution which the testator intended was sufficiently i
dentified and
that it was the School for the Deaf, and Blind at South Brisbane.
RE TURNER; QUEENSLAND TRUSTEES LTD V TURNER [1942] QSR 223 (Q Sup Ct
FC). [Discussed in note, 16 ALJ 234.]
202. Extrinsic evidence Latent ambiguity .] A testator directed that the re
sidue of his
estate "shall be divided into three equal parts one of which shall be paid or tr
ansferred to the
said Diocesan Trustees of the Church of England in Western Australia a second to
the
Trustees for the time being of the Hospitals and Lunatic Asylums in the said Col
ony to be
divided among them equally and the third to the trustees of the Poor Houses in t
he said
Colony". Held, that the word "hospitals" included public hospitals existing at t
he date of the
testator's death which had been proclaimed under the Hospitals Act 1894 (WA) and
hospitals
then established which were governed by elected committees, whether assisted by
contributions from the public revenue or not, but did not include hospitals whic
h were
wholly maintained at the public expense and were subject to the entire control o
f
Government officers. The Full Court of Western Australia used certain affidavits
to help
them in ascertaining the objects of the gift. Held, that this evidence was prope
rly admitted, as
in every case evidence is admissible for the purpose of identifying the object o
f a gift in a
will, and if the words used to denote the object are capable of being applied to
more than one
object, evidence is admissible to show the surrounding circumstances in order to
enable the
court to ascertain to which object the testator intended to refer.
[(1908) 10 WALR 92 varied.]
In the Will and Codicil of PADBURY; HOME OF PEACE FOR DYING & INCURABLE V
SOLICITOR-GENERAL (WA) (1908) 7 CLR 680; 15 ALR 77 (HC).
203. Extrinsic evidence Latent ambiguity .] A testator who for many years h
ad been
closely connected with the city of Broken Hill made a gift to "The Broken Hill O
rphanage";
and by a codicil executed in 1944 he made a further gift to "The Church of Engla
nd
Orphanage at Broken Hill". Extrinsic evidence was tendered to show that there wa
s only one
orphanage, in the strict sense of the word, in Broken Hill, namely, St Anne's Ho
me of
Compassion, a Roman Catholic institution. This institution was usually called in
Broken Hill
"The Orphanage". St Faith's Day School, a Church of England institution, althoug
h not
properly an orphanage, was often colloquially referred to by inhabitants of Brok
en Hill as
"The Church of England Orphanage". Held, that extrinsic evidence was admissible
to
identify St Anne's Home of Compassion and St Faith's Day School as being respect
ively the
institutions specified by the testator as "The Broken Hill Orphanage" and "The C
hurch of
England Orphanage at Broken Hill".
RE GUIDI [1948] SASR 207 (SA Sup Ct, Reed J).
204. Extrinsic evidence Latent ambiguity Wills of sisters in similar terms
.] By her
will a spinster, EP, who died in 1941, gave the balance of the residue of her es
tate "for the
Church of England in the Diocese of Adelaide absolutely for the benefit of the S
unday
School Council and a Diocesan Church of England Hospital in equal shares". Her s
ister, GP,
who died in 1958, by her will made in the same year gave the residue of her esta
te "for the
Synod of the Church of England in the Diocese of Adelaide Incorporated for the f
und to
establish and/or maintain a Church of England Hospital absolutely". Another sist
er, VP, died
in 1963, and by her will made in 1962 gave the residue of her estate in similar
terms to the
gift contained in the will of her sister GP. There was no Diocesan Church of Eng
land
Hospital, although a convalescent hospital, and homes for the aged which provide
d nursing
attention for inmates of the homes, were conducted under the auspices of the Chu
rch of
England. Held: (1) It was permissible to use the will of EP as a guide to the co
nstruction of
the will of GP and the wills of EP and GP as a guide to the construction of the
will of VP,
and reading the three wills in this way the intention of the three testatrices w
as to create a
fund for the establishment of a new hospital, and not to benefit any of the exis
ting
institutions, conducted under the auspices of the Church of England. (2) The gif
ts for the
creation of such a fund were valid charitable gifts. (3) Upon the evidence befor
e the Court it
was not possible to say whether it was practicable for the trusts created by the
three wills to
be carried out, and the Synod of the Church of England in the Diocese of Adelaid
e
Incorporated should be required to indicate whether or not it was willing to acc
ept the gifts
on trust to establish and maintain a general Church of England hospital.
Sup Ct, Bray CJ).
205. Filling in blanks .] A testator devised the residue of his real estate "
to and for the
benefit of the Presbyterian Church at, to be by the trustees of the said church
used for the
benefit of the said Church". Held, that the court would not hear evidence for th
e purpose of
filling up the blank.
A-G (NSW) V POWELL (1890) 11 LR (NSW) Eq 263; 6 WN 157; 7 WN 30 (NSW Sup Ct
FC).
[12] (c) Particular Words and Phrases
206. "Aboriginal women" .] A testatrix gave the whole of her residuary estate
upon trust
for the Australian Aboriginal League to be applied "for the benefit of aborigina
l women in
Victoria". Held, that the expression "aboriginal women" in the will was not limi
ted to
aboriginal women of full blood.
RE BRYNING [1976] VR 100 (Vic Sup Ct, Lush J).
207. "Annual examination" "Shall continue ... education at any secondary scho
ol" .] A
will provided for the establishment of a trust fund from which bursaries were to
be paid to
students of a specified school who should attain the highest pass "in the annual
Junior Public
Examination ... (or any annual examination which may be substituted for such Jun
ior Public
Examination) and who shall continue his or her education at any secondary school
in
Queensland". The annual Junior Public Examination conducted by the Department of
Education of Queensland ceased in 1971. Thenceforth a system was instituted unde
r which
students who advanced to Junior level and reached the required standard after tw
o years'
work received a Junior certificate. The students were periodically assessed by t
heir school,
such assessments being influenced by the quality of written work during the year
. Held: (1)
The system of assessment was no less an examination than the Junior Public Exami
nation
and was neither more or less annual. (2) The words "shall continue ... education
at any
secondary school" required that while a pupil attended a secondary school he or
she should
receive the benefit of the bursary, and that a course of study available at such
a school be
followed, and that a secondary school was a school at which a pupil received sec
ondary
education. Payments from the bursary fund should cease if and when a pupil cease
d
education at a secondary school.
HURWOOD V A-G (Q) [1974] Qd R 30 (Q Sup Ct, Andrews J).
208. "Benevolent institution" .] The term "benevolent institution" would not
in Victoria
include any institution whose objects were not charitable in the legal sense.
RE PARKER; BALLARAT TRUSTEES EXECUTORS & AGENCY CO LTD V PARKER
[1949] VLR 133; [1949] ALR 545 (Vic Sup Ct, Fullagar J).
209. "Charitable" .] A testator left the balance of his residuary estate to h
is trustees to
distribute "between such charitable institutions bodies and organizations in the
Perth-Fremantle Area as my trustees may select". Held, that the word "charitable
" applied to
the three nouns "institutions", "bodies" and "organizations", and there was no p
ossibility of
the trustees applying any part of the fund to a non-charitable purpose.
[(1950) 52 WALR 30 affd.]
464; [1950] ALR 735 (HC).
210. "Church" "Protestant" Whether Plymouth Brethren included .] A testat
or by
his will directed his trustee "to pay to the various Protestant Churches in the
township of
Hurlford ... the sum of 2,500, if more than one in equal shares". A body of 14 pe
rsons
described as "the Assembly of Christian Brethren meeting in the town of Hurlford
, Scotland"
was shown by evidence to be "a congregation of Christians locally organized into
a society
for religious worship and spiritual purposes, under the direction of one set of
spiritual
office-bearers" (and thus in accord with a definition of "Church" in the Oxford
Dictionary)
and was part of a sect known as the Plymouth Brethren. The Assembly was "a volun
tary and
unincorporated association of Christians united on the basis of agreement in cer
tain religious
tenets and principles of worship, discipline, and Church government" within the
dictum of
Lord Davey in General Assembly of Free Church of Scotland v Lord Overton [1904]
AC 515,
at p 643. Held, that the Assembly had the essential attributes of and was proper
ly
characterized as a church. Held, further, that as the evidence showed that the m
embers of the
Assembly were opposed to the doctrines of the Roman Catholic Church and took the
Bible as
the word of God to guide them in all matters of belief and practice, they were p
roperly
described as "Protestant".
RE RICHARDSON; EQUITY TRUSTEES EXECUTORS & AGENCY CO LTD V
CHRISTIE [1956] VLR 706; [1957] ALR 61 (Vic Sup Ct, Martin J). [Discussed in not
e, 30
ALJ 570.]
211. "Church of England Charities in New South Wales" .] A testator directed
that the
balance of his estate be distributed as to half "to the Synod of the Church of E
ngland,
Diocese of Sydney, to be distributed by the Synod amongst the Church of England
Charities
in New South Wales in such proportions and in such manner as Synod shall direct"
. Held: (1)
The word "charities" was used in the popular and not in the legal sense; that is
to say with the
meaning ascribed to it in Income Tax Special Purposes Commissioners v Pemsel [18
91] AC
531, at p 572. (2) The phrase "Church of England Charities" was not limited to c
harities
established or controlled by the Synod of the Diocese of Sydney, but extended to
charitable
institutions having a substantial association or connexion with the Church of En
gland in New
South Wales. (3) The Synod should not only decide which charities came within th
e
description in the direction, but also which of them should participate in the d
istribution of
the estate. (4) The words "in New South Wales" did not operate so as to exclude
any charity
the operations of which extended beyond New South Wales.
Re the Will of FAITHFULL (1967) 86 WN (Pt 1) (NSW) 161; [1967] 2 NSWR 265 (NSW
Sup Ct, Hardie J).
212. "Dean for the time being" .] A testatrix bequeathed to trustees a fund a
nd directed
them to apply the annual income for the benefit of the Dean for the time being o
f St David's
Cathedral, Hobart, provided that the Dean's stipend exceeded a certain amount. I
f the
conditions of this gift were not fulfilled the capital sum was to sink into resi
due. At her death
the gift took effect. But on 1 November 1940, the then Dean died and no appointm
ent of a
new Dean was made until some time in 1942. In the meantime the Bishop, as provid
ed for by
the Cathedral Act 1886 (Tas), held the office, appointing an acting incumbent, w
ho received
the only payment by way of stipend. Held: (1) The Bishop was not entitled to the
income,
since he was only a nominal holder of the office, neither performing its substan
tial duties nor
to the
being.
213. "Extensions" .] A testator left his residuary estate to five named churc
hes "in and for
the building of extensions to the said churches and chapels". He directed that p
ortion of this
residuary gift in each case be spent on a new high altar reredos. In at least tw
o cases, the
churches named occupied the whole of the site on which they were built and exten
sions, in
the literal sense, were not possible. Also as far as the gifts for the reredos w
ere concerned, in
at least one church it would be impracticable to comply with the testator's dire
ction. Held: (1)
In construing the word "extensions" the court should take into consideration sur
rounding
relevant circumstances including the fact that the testator took a great interes
t in the churches
in question and was aware of the extent of the church buildings in relation to t
heir respective
sites. (2) In the will, the word "extensions" covered alterations, renovations,
restorations or
additions to the fabric of the church, either internally or externally. (3) Even
if the direction
concerning the high altar reredos might not be capable of being implemented, eac
h church
was entitled to its full share of residue and might use the money for some purpo
se similar to
the purpose the testator had in mind.
214. "Failing any such descendant" .] A testator devised his residuary estate
to the
trustees of the Presbyterian Church of Australia "upon trust to apply the income
thereof in
perpetuity for the promotion and encouragement of education in NSW in manner her
einafter
appearing". The will provided for the establishment of scholarships to be awarde
d to students
or intending students of any primary or secondary school in NSW "provided that i
n making
any such award preference shall be given to any lineal descendant or descendants
of my late
father David Edward and failing any such descendant to any child or children of
a minister or
deceased minister of the said Presbyterian Church and failing any such child or
children to
any then present or then intending student of Scots College, Bellevue Hill, near
Sydney".
Held: (1) The particular means indicated did not constitute a family trust but w
as for the
benefit of a section of the community and constituted a valid charitable trust.
(2) The words
"failing any such descendant" in the proviso did not refer to a failure of issue
of David
Edward, but meant that if there were from time to time descendants of David Edwa
rd
eligible and willing to accept the scholarships, they should be preferred.
0
ALJ 432.]
215. "Homeless, stray and unwanted animals" .] A testatrix directed her trust
ee to
purchase and properly equip a home for the maintenance and care of or for otherw
ise
mercifully dealing with homeless, stray and unwanted animals, and to invest the
balance of
her residuary estate and apply the income for the permanent upkeep including wag
es of the
home. Held, that "homeless stray and unwanted animals" in the will referred to d
omestic
animals, that is, such animals as are commonly kept and cared for around human h
abitations.
So construed, the trust declared was a valid and charitable trust.
216. "Hospital" Gift to "Sydney Homoeopathic Hospital" .] Per Dixon CJ and
Kitto J
The phrase "in case there shall be no such Hospital established" means in case
neither the
Sydney Homoeopathic Hospital nor one of like characteristics shall be establishe
d. Per
McTiernan, Fullagar and Menzies JJ The words "no such Hospital" refer to the S
ydney
Homoeopathic Hospital and not to any hospital where homoeopathy is practised.
SYDNEY HOMOEOPATHIC HOSPITAL V TURNER (1959) 102 CLR 188; 33 ALJR 27;
[1959] ALR 782 (HC).
217. "Hospital".] Meaning of the term "hospital", used in a charitable beques
t,
considered.
Sup Ct, Bray CJ).
218. "Hospital" "Public hospital" .] A testator directed his executors to p
ay and
transfer his residuary estate to "The Public Hospitals in The County of Cumberla
nd in the
State of New South Wales in equal shares absolutely". Held, that various institu
tions
including hospitals for the insane, a Leper Lazaret, hospitals for cases of tube
rculosis and
convalescent hospitals fell within the term "public hospitals" as used in the wi
ll, but that
other institutions, including a nursing association, dental hospital and certain
homes for
children did not fall within that term. Meaning of "public hospital" discussed,
but not
determined. Characteristics of a hospital indicated.
PUBLIC TRUSTEE V HOSPITALS COMMISSIONER (NSW) (1939) 56 WN (NSW) 198
(NSW Sup Ct, Long Innes CJ in Eq). [Discussed in note, 13 ALJ 403.]
219. "Hospitals" .] A testator directed that the residue of his estate "shall
be divided into
three equal parts one of which shall be paid or transferred to the said Diocesan
Trustees of
the Church of England in Western Australia a second to the Trustees for the time
being of the
Hospitals and Lunatic Asylums in the said Colony to be divided among them equall
y and the
third to the trustees of the Poor Houses in the said Colony". Held, that the wor
d "hospitals"
included public hospitals existing at the date of the testator's death which had
been
proclaimed under the Hospitals Act 1894 (WA) and hospitals then established whic
h were
governed by elected committees, whether assisted by contributions from the publi
c revenue
or not, but did not include hospitals which were wholly maintained at the public
expense and
were subject to the entire control of Government officers.
In the Will and Codicil of Padbury; Home Of Peace For Dying & Incurable v
Solicitor-General (WA) (1908) 7 CLR 680; 15 ALR 77 (HC).
220. "Minister officiating" at Synagogue .] A testatrix directed her trustees
to set apart for
or pay to the proper officer of the Jewish Synagogue, Hobart, for the benefit of
that
institution a sum to be invested in trust and the income applied for the benefit
of the minister
officiating at that Synagogue. The Synagogue was without a minister until some y
ears after
the death of the testatrix. Held: (1) The gift of income was for the benefit of
the minister for
the time being since the testatrix intended a continuing benefit to the Synagogu
e. (2) The
income during the period while there was no minister should be added to the capi
tal sum.
221. "Native wild life" .] A testatrix provided that the net balance of her e
state, having
been converted into money, should be devoted to the preservation of native wild
life (flora
and fauna) and directed that her trustees might carry out her wishes "either by
making direct
donations to one or more organizations concerned with wild life by promoting the
preservation of wild life or in such other manner as [her] trustees [should] in
their absolute
discretion think fit". Held: (1) The language used in expressing the purposes of
the gift and
the objects to be benefited showed more than a mere intention to benefit wild li
fe in vacuo. It
indicated more than a mere concern for animal welfare, and extended to a concern
for the
welfare of the community in saving indigenous wild life from the encroachment of
human
activities; and this negatived an argument that no charitable intention was expr
essed. (2) The
preservation of "native" wild life was to be interpreted as meaning wild life, b
oth flora and
fauna, indigenous to Australia. (3) The evidence established that there was a re
al and
substantial benefit to the community in the preservation of Australian wild life
, fauna and
flora, in aspects which matched in spirit purposes stated in the preamble to the
Charitable
Uses Act 1601 (43 Eliz I c 4). The gift was accordingly for a valid charitable t
rust.
222. "Next of kin in whatever degree" .] A testatrix provided that income fro
m her estate
should be accumulated until 21 years from the death of the last survivor of her
children and
that in default the capital should then go to her female grandchildren, or to he
r male
grandchildren then surviving. If "at the expiration of the period of accumulatio
n" there were
no grandchildren surviving the trustees were to ascertain "who of my next of kin
(not being
next of kin on the side of my late husband) in whatever degree are in poor and n
eedy
circumstances and upon such next of kin being ascertained" the trustees were to
convert the
assets and distribute the proceeds equally between such next of kin. Held, that
the words
"next of kin" in the gift over meant "kinsmen" or "relatives" and not statutory
next of kin and
this gift was intended to be a gift to the relations in poor and needy circumsta
nces of the
testatrix (excluding relations of her husband), and as "poor relations" is a wel
l known
concept in the law the gift was a valid charitable trust and not void for uncert
ainty.
223. "Officiating minister" .] A testator bequeathed a fund to trustees to ac
cumulate until
the happening of a certain event, and thereafter upon trust to pay the income to
the
officiating minister for the time being of a Presbyterian Church. On the happeni
ng of the
event S became minister of the church, exercised all the functions for 24 years
and was
recognized by the governing body of the church of Tasmania, though he was not ca
lled or
inducted according to the rules of the Presbyterian Church. The income was never
paid to S
or his assignee. Held: (1) The bequest was a good charitable gift being designed
as an
endowment for St Andrew's Church not in respect to the minister for the time bei
ng in his
personal capacity, although intended to augment his stipend. (2) The officating
minister de
facto for the time being was personally entitled to the income of the fund.
224. "Orphans" .] A testator directed that the whole of the net income from h
is residuary
estate be paid at least yearly to the Armenian General Benevolent Union, to "use
the balance
if any of the said income for the benefit of the orphans whose fathers fought wi
th the Russian
Army against Germany and Japan in the World War which ended last year". Held, th
at there
was a valid charitable trust for the children of fathers of the Armenian race wh
o died on
active service with the Russian army in the world war against Germany and Japan
which
ended in 1945, if the children were under 21 at the date of the testator's death
and in need of
assistance or protection and, per Williams, Webb and Kitto JJ, such children wou
ld remain
orphans so long as they continued in need of assistance, whether they had attain
ed 21 years
or not.
225. "Orphans" .] The laws of the AMA, an unincorporated association of membe
rs of
the medical profession, by cl 53 provided: "The cash of the Association shall be
long to (a) A
General Fund ... (b) A Benevolent Fund for rendering pecuniary aid to those in d
istress, who
are or have been Fellows of the Association, their widows or orphans". In 1869 t
he
association ceased to function but the benevolent fund was vested in trustees, a
nd its
administration was continued by them and by new trustees appointed from time to
time. No
Fellows or widows of Fellows remained alive. Several children of deceased Fellow
s were
living, but apart from L required no aid. L attained her majority and married be
fore the death
of her father in 1898, and had been supported by her husband. She had become a w
idow in
straitened circumstances and her health was impaired. Held, that the term "orpha
ns" as used
in cl 53 meant children of a deceased Fellow who, by reason of his death, were i
n distress
owing to deprivation of, or of the expectation of, his support. Meaning of "orph
an" discussed.
ARMSTRONG V A-G (NSW) (1934) 34 SR (NSW) 454; 51 WN 151 (NSW Sup Ct, Long
Innes J). [Discussed in note, 8 ALJ 255.]
226. "Orphanage" .] Held, that whether an institution was or was not an orpha
nage, was a
question of fact, and that the rules and practice of the institution were to be
considered. An
orphanage is an institution where the main or primary purpose which it is actual
ly fulfilling
is to provide and care for orphaned children.
RE DODSON [1931] SASR 387 (SA Sup Ct, Napier J).
227. "Patriotic funds" .] Per O'Bryan J As the real and substantial purpose
s of this trust
extend beyond purposes in connexion with World War II and beyond the supply of c
omforts
and conveniences to members of the forces, the trust fund is not a "patriotic fu
nd" within the
meaning of the Patriotic Funds Act 1939 (Vic). This view is supported by a consi
deration of
the Act as a whole, which seems to be concerned with the administration of trust
funds
whose purpose, being limited to purposes in connexion with the war, may fail at
or shortly
after the termination of the war.
LEWIS V BENSON [1944] VLR 106; [1944] ALR 244 (Vic Sup Ct, O'Bryan J).
228. "Poor houses" .] Held, that the gift by will to trustees "of the poor ho
uses in the said
colony" designated government institutions of that name to the exclusion of priv
ate charities.
(1909) 9 CLR 757; 16 ALR 70 (HC).
229. "Portrait" Trustees to give prize for best portrait .] Held, that the
word "portrait",
as understood by artists, has not a technical meaning. The word was an ordinary
word of the
English language and its meaning had to be ascertained, accordingly, in the ligh
t of the
assistance afforded by dictionaries and other works. The word "portrait" as used
in the will in
question, incorporating in its meaning the limitations imposed by its context, m
eant a
pictorial representation of a person painted by an artist; and that definition c
onnoted that
some degree of likeness was essential and for the purpose of achieving it the in
clusion of the
face of the subject was desirable and perhaps also essential.
A-G (NSW) V TRUSTEES OF NATIONAL ART GALLERY (NSW) (1944) 62 WN (NSW)
212 (NSW Sup Ct, Roper J).
230. "Relations" Direction to prefer certain individuals .] A direction tha
t all relations
of the testator who sought admission as scholars to an educational institution p
rovided by the
testator should be given priority, is a good direction according to Queensland l
aw, and
"relations" means next of kin.
[1922] QSR 252 (Q Sup Ct FC).
231. "Scholarship" "Government control" .] A testator directed that part of
his
residuary estate should after the death of his wife be held upon trust for the e
stablishment of
a scholarship at a named school in Scotland. If the school should come under "Go
vernment
control" there should be a gift over. At the date of his death schooling at the
school was free
to all pupils and the school was conducted by the local County Council. Since hi
s death
legislation had been passed requiring approval by central government authority o
f education
schemes for such schools as the one in question. Held: (1) The term "scholarship
" was not
limited to money granted to scholars to assist them financially to continue thei
r education,
and that, on the facts of the case, it had not been established that the trust f
ailed because it
was impracticable of fulfilment as so construed. (2) "Government control" meant
control by
the central government and that the school had not come under government control
since the
testator's death.
RE LEITCH [1965] VR 204 (Vic Sup Ct, Adam J).
232. "Rest of the money" .] Held, that a disposition of "the rest of the mone
y" constituted
a gift of all the residuary estate remaining after specific gifts.
[[1965] NSWR 1624, varied.]
Ct CA).
233. "War orphans and widows" .] A testatrix devised a property "to the Legac
y Club of
Brisbane absolutely to be used by them for the benefit of war orphans and widows
". Held,
that the testatrix intended to benefit "dependants" of deceased ex-members of He
r Majesty's
Forces within the meaning of the objects of the Legacy Club at Brisbane, provide
d such
dependants were widows and children within the meaning of the Brisbane Legacy Wa
r
Widows' and Orphans' Fund.
RE STABLE; LEGACY CLUB OF BRISBANE V MARSTON [1957] QSR 90 (Q Sup Ct,
Jeffriess AJ).
234. "Yearly" .] The will of the testator contained the following clause: "In
trust I leave
the sum of 5,000 to the Animal Welfare League of Victoria who shall receive the i
nterest
from such amount yearly". Held, that the word "yearly" indicated an intention th
at the League
enjoy only the income, and the bequest did not operate as an immediate gift of c
orpus.
554. "Educational institute" Open to "Protestants" Scholarships .] A man
who died
in 1900 left legacies by will and four codicils to set up two trusts, one to est
ablish a school
and the other to provide scholarships "at such educational institute or school a
s may be
approved by my trustees and where scholars may attain a thoroughly good and prop
er
education". Scholarships were to be available only to scholars of the Protestant
religion. The
latter trust included a direction to accumulate income, if a suitable school did
not exist in
that locality, until such school should be established, and to invest the accumu
lations. A
private Act was passed in 1926 to allow the income from 5,000 in the scholarship
trust fund
to be applied towards the running of the school. The school closed in the late 1
940s. The
school trustees paid the remainder of their trust funds into the scholarship fun
d, thus mixing
the two. No scholarships had been awarded for upwards of 40 years. The court was
asked to
give directions. Held: (1) The direction to accumulate was in breach of s 60(1)
of the Law of
Property Act 1936 (SA). (2) The surplus income invalidly accumulated should be a
pplied
cy-pres and added to the trust fund. (3) "Protestant" means any Christian except
a member of
the Roman Catholic Church or any of the Orthodox Churches or an Old Catholic. It
includes
therefore a Seventh Day Adventist and members of denominations formed after the
execution of the relevant codicil. (4) The trustees in approving an "educational
institute or
school" for the scholarship holders to attend are bound to consider only "a thor
oughly good
and proper education" as the qualification for the schools. The schools may ther
efore be
government or private, church or non-denominational. (5) The trustees would be f
orgiven for
their breaches of trust in mixing the funds and in not acting on scholarships fo
r more than 40
years.
RE UMPHERSTON (1990) 53 SASR 293 (SA Sup Ct, Millhouse J).
[13] (ii) Subject Matter and Quality of Estates
235. Certainty as to subject matter Words "wholly or in part" .] A testator
directed that
the residue of his estate should be "handed to the Roman Catholic Archbishop of
Brisbane
and his successors, to be used and expended wholly or in part as such Archbishop
may judge
most conducive to the good of religion in this diocese". Held, that the words "w
holly or in
part" did not create an uncertainty as to how much of the trust property was imp
ressed with
the trust, but merely gave an authority to break in upon the capital of the trus
t fund.
[(1910) 11 CLR 637; 17 ALR 457 revd.]
394; 28 TLR 257; 56 SJ 324 (PC).
236. Trust for limited duration To use land as hospital until hospital should
cease to be
conducted .] The Lesser Chapter of Brisbane Cathedral was a body corporate und
er the
Religious Educational and Charitable Institutions Act 1861 (Q). To prevent land
adjoining
the cathedral from being devoted to commercial purposes and so as to conduct a h
ospital
there, it acquired parcels of such land and established "St Martin's Hospital".
Conduct of the
hospital was entrusted to a religious order of sisters. Funds were subscribed fo
r building and
maintaining the hospital as the result of a public appeal. By about 1970 it had
become
impracticable to continue operating the hospital near the cathedral, and plans w
ere made for
a new hospital. An action was brought to determine whether the land and funds in
the hands
of the sisters were the subject of any, and if so what, charitable trusts. Held:
(1) Under the
Cathedral Canon, which regulated the powers and duties of the Lesser Chapter, an
d which
gave it in respect of cathedral property vested in it the functions and powers o
f the
Corporation of the Synod of the Diocese of Brisbane, under s 13 of the Church of
England
Act 1895 (Q) and s 2 of the Church of England Act 1895 Amendment Act 1901, the L
esser
Chapter had power to sell or otherwise deal with the land, including power to cr
eate trusts in
favour of St Martin's Hospital if it were a separate charity. (2) St Martin's Ho
spital was a
separate charity, and a trust in its favour had been created by the appropriatio
n of the land to
its purposes, but for a limited duration only, that is until the hospital should
cease to be
conducted on the site, with a reverter to the Lesser Chapter at that time. (3) S
uch an
appropriation, being directed to ensuring that the land would not be devoted to
undesirable
purposes but to a purpose suitable to the environs of a cathedral, was a devotio
n of the land
to "cathedral purposes" within cl 39 of the Canon. (4) The accumulated funds of
the hospital
were held on the charitable trusts of the St Martin's Hospital, and as it was no
longer
practicable to carry on the hospital, a scheme for their application cy-pres sho
uld be settled.
A-G (Q) (Ex rel NYE) V CORPORATION OF LESSER CHAPTER OF CATHEDRAL
CHURCH OF BRISBANE (1977) 136 CLR 353; 12 ALR 87 (HC).
237. Limited gift of income Right of charity to corpus .] A testator direct
ed his
trustees to invest 200, and divide the income between two churches equally for th
e benefit
of the churches for 50 years, and thereafter to divide the sum between the churc
hes equally,
to be expended in permanent improvements for the churches. Held, that the gift w
as a
charitable trust, and therefore valid, but the capital could not be paid over to
the persons
authorized to give discharges until the expiration of the 50 years.
39 (Q Sup Ct FC).
238. Unlimited gift of income Right of charity to corpus .] Held, that the
rule under
which a general and unlimited gift of income carries the corpus is applicable to
a gift to a
charity capable of holding property, but the rule did not apply in this instance
because the
will evinced the intention that the beneficiaries were to take only the income.
335; [1952] ALR 729 (HC).
239. Unlimited gift of income Right of charity to corpus .] A testatrix gav
e her
residuary estate to her trustees upon trust to pay the income to the University
of Sydney for
charitable purposes. After empowering her trustees to convert the residuary esta
te, she
expressed a desire that the fund payable to the University of Sydney should be k
nown by a
certain name. Held, that the will did not evince an intention that only the inco
me was to go to
the university, and accordingly the rule under which a general and unlimited gif
t of income
carries the corpus applied.
ROBERTS V UNIVERSITY OF SYDNEY (1960) 78 WN (NSW) 541; [1960] NSWR 702
(NSW Sup Ct, Jacobs J). [Discussed in note, 34 ALJ 330.]
240. Unlimited gift of income Right of charity to corpus .] A testator dire
cted his
trustees out of the proceeds to arise from the sale of his estate to invest in a
ny mode of
investment specified in the will 3,000 "and to pay the annual income thereof or p
ermit the
same to be received by the treasurer for the time being of the institution now k
nown as the
Melbourne Hospital for the benefit of that institution". He made a gift of 2,000
in like terms
for the benefit of the Alfred Hospital and directed that his trustees should div
ide the residue
of his estate into five equal parts, and in like terms he made a gift of one eac
h of such parts
for the benefit of five other charitable institutions. He declared that "the pay
ment of the
annual income arising from any such moneys aforesaid by my trustees in the manne
r
respectively before mentioned shall relieve my trustees of all or any responsibi
lity of seeing
to or being accountable for the application, non-application or mis-application
thereof".
Held, that the charitable institutions were not entitled to have the corpus of t
he several funds
paid over to them respectively. The rule that a bequest of the income of persona
l estate
without limit of time is equivalent to a gift of the principal should not be ext
ended to gifts to
charities.
IN THE WILL OF WRIGHT; WESTLEY V MELBOURNE HOSPITAL [1917] VLR 127;
(1916) 38 ALT 150; 23 ALR 42 (Vic Sup Ct FC).
241. Unlimited gift of income Right of charity to corpus .] A testator bequ
eathed a
number of pecuniary legacies to named persons. He then devised a particular free
hold to the
Baby Health Centre, Bendigo, and bequeathed the residue of his estate upon trust
to pay
further legacies and expenses and "to stand possessed of the residue upon trust
to pay the
income arising therefrom to the Bendigo Base Hospital for ever". Held, that ther
e was a clear
indication that the beneficiary of the residuary estate was not to receive the c
orpus but was to
receive only the annual income.
RE WILLIAMS; BENDIGO & NORTHERN DISTRICT BASE HOSPITAL OF BENDIGO V
A-G (VIC) [1955] VLR 65; [1955] ALR 255 (Vic Sup Ct, Dean J). [Discussed in note
s, 29
ALJ 572; 7 Res Jud 211.]
242. Unlimited gift of income Right of charity to corpus .] The will of the
testator
contained the following clause: "In trust I leave the sum of 5,000 to the Animal
Welfare
League of Victoria who shall receive the interest from such amount yearly". Held
, that the
word "yearly" indicated an intention that the League enjoy only the income, and
the bequest
did not operate as an immediate gift of corpus.
243. Unlimited gift of income Right of charity to corpus .] A testator gave
his
residuary estate to his trustee "to invest ... and to hold the net income arisin
g from such
investments" upon trusts to pay to A an annuity for life, and to pay the remaind
er to a brother
for life, and thereafter "to divide the said income into three equal parts and p
ay one of such
equal parts to each of" three named public hospitals "in perpetuity". Held, that
the charities
were not entitled to the corpus upon the death of A and the brother since there
was to be
found in the will a clear implied intention on the part of the testator that the
se beneficiaries
were not to take more than income. The fact that the institution is charitable t
aken alone
would not be sufficient to exclude the general rule of construction by which a g
eneral and
unlimited gift of income is held to carry an absolute interest in the corpus.
RE DEHNERT [1973] VR 449 (Vic Sup Ct, Starke J). [Discussed in note, 47 ALJ 747.
]
244. Unlimited gift of income Right of charity to corpus .] A testator dire
cted his
trustees to invest his residuary estate and to pay the income to the Adelaide Ho
spital and the
Adelaide Children's Hospital in equal shares, "provided and I hereby direct that
from and
after the death of all of my trustees the said investments shall be under the ca
re control and
management of the respective trustees of the said two hospitals they to continue
such
investments and pay the net annual income therefrom in such manner as if my trus
tees had
not died". Held: (1) As to the bequest to the Children's Hospital, one moiety of
the
investments was to be held by the trustees named in the will until the death or
retirement of
the surviving trustee, and the investments were then to be assigned to the trust
ees of the
Children's Hospital to be continued as a permanent endowment. (2) As to the bequ
est to the
Adelaide Hospital, that this hospital is an institution "established" under or p
ursuant to an
Act of Parliament and, accordingly, subject to the provisions of the Public Char
ities Funds
Act 1912 (SA). (3) The trustees of the will should assign the moiety of residue
held in trust
for the Adelaide Hospital to the Commissioner of Charitable Funds pursuant to s
8 of the
Public Charities Fund Act 1912.
RE LOMMAN [1934] SASR 222 (SA Sup Ct, Napier J).
245. Unlimited gift of income Right of charity to corpus .] A testatrix gav
e her
residuary estate to her trustee upon trust "to invest same & pay annual income &
pay to the
Society for Prevention of Cruelty to Animals incorp Devonport" to build a home f
or animals.
There was an unincorporated body known as Royal Society for Prevention of Cruelt
y to
Animals Tasmania, which had a local branch at Devonport. Held: (1) There can be
a bequest
to an unincorporated body. (2) A gift to care for animals is a charitable purpos
e. (3) The
testatrix had created a valid charitable trust for the purpose of building a hom
e or hospital
near Devonport to care for animals in need of care. (4) The provisions were an e
ffective
disposition of corpus and income.
PUBLIC TRUSTEE V CLAYTON (1985) 38 SASR 1 (SA Sup Ct, Mohr J).
[14] B. Effect
246. Distinction between gifts for charitable purposes and gifts to charitable
institution .]
The Educational Institutions (Stamp Duties Exemption) Act 1961 (NSW), s 2(3), pr
ovides
that nothing contained in the Stamp Duties Act 1920 applies to any property "com
prised in
any gift, bequest or devise" made to any educational institution to which the Ac
t applies.
Under s 2(1) the University of Sydney is such an institution. A testator gave th
e residue of his
estate for the purpose of purchase or construction of a building as a centre for
the musical
and dramatic arts and directed his trustees to vest such residue in such public
authority as
they should consider fit. About five years after the death of the testator the t
rustee resolved to
transfer the residue to the University of Sydney provided it entered into a decl
aration of trust
in accordance with the will. Held: (1) The question whether a gift is exempt fro
m duty is to
be determined by reference to the state of facts at the time for ascertainment o
f liability, that
is the death of the deceased; at that time there was no gift to the University o
f Sydney; and,
accordingly, the residue was not exempted from liability for duty. (2) The disti
nction
between a gift for charitable purposes, and a gift to a charitable institution (
unless there is a
total coincidence between the one and the other as, for example, a gift for the
purposes of the
University of Sydney), is a fundamental one, and the 1961 Act exempts only gifts
of the latter
type, whereas the gift of residue was of the former type and there was no gift o
r bequest by
the will to the University of Sydney even when the trustee had selected the Univ
ersity under
its power in the will.
[[1975] 1 NSWLR 111; (1975) 5 ATR 263 affd.]
PERPETUAL TRUSTEE CO LTD V COMMISSIONER OF STAMP DUTIES (NSW)
(1976) 50 ALJR 740; [1976] 1 NSWLR 127; 9 ALR 1; 6 ATR 75; [1976] 2 WLR 979; [19
76]
2 All ER 792 (PC). [Discussed in note, 14 Law Soc J 196.]
247. Power of selection When charitable trust created .] A testator gave hi
s residuary
estate "upon trust for the Roman Catholic Archbishop of Adelaide ... to be expen
ded by the
said Archbishop for the benefit of Catholic Charities in such manner as he in hi
s absolute
discretion shall think fit". By deed the Archbishop declared that he held the re
sidue upon
trust for two specified orphanages. These orphanages were "public benevolent ins
titutions"
within the meaning of s 8(5) of the Estate Duty Assessment Act 1914 (Cth). Held,
that an
argument that, by analogy to the rule that for the purposes of the rule against
perpetuities the
perpetuity period starts from the date when a special power of appointment is cr
eated not
from the date on which it is exercised, the Archbishop's decision to devote the
property to the
two orphanages meant that the property was bequeathed to them by the will, could
not be
sustained: the trust of residue took effect as a trust for charity immediately o
n the death of
the testator without awaiting the Archbishop's selection of objects.
PUBLIC TRUSTEE V COMMISSIONER OF TAXATION (CTH) (1964) 111 CLR 326; 38
ALJR 251; [1965] ALR 570 (HC, Windeyer J). [Discussed in note, 39 ALJ 109.]
248. Power of selection Nature of power Refusal of appointee to exercise .]
A
devised a house upon trust to permit her husband to reside there until his remar
riage or death
or until he earlier advised the trustee that he no longer desired to reside ther
e, whereupon it
was to be held upon trust for sale and to pay the net proceeds to the "psycholog
y department
of either the University of Queensland or of the University of New South Wales a
s directed
by ... F, who shall also have the right to direct and prescribe the research pro
ject upon which
such moneys are to be expended". The will also provided a bequest to the Faculty
of
Veterinary Science of the University of Queensland for the purpose of specified
research.
There was a general residuary clause in favour of the husband. F renounced and r
efused to
exercise the power referred to. Upon application for determinations whether the
gift failed
and whether it manifested a general charitable intention, Held: (1) The power of
appointment
was entrusted to F to effectuate the intention that the property devolve upon on
e of the
objects of the power according to F's discretion. (2) The testatrix intended tha
t there be a
trust for psychological research and that the recipient should be either the Uni
versity of
Queensland or the University of New South Wales. (3) F's intervention was sought
merely as
a machinery provision in order to put the primary purpose into effect efficientl
y. (4)
Reference to both universities in the bequest was not for the purpose of appoint
ment of one
so that the other would be excluded but rather for the positive purpose of ident
ifying two
universities from which the donee of the power was to make his choice. (5) The r
ight given
to F to prescribe the research project did not imply that the gift would fail sh
ould he decline
to exercise his right; F's right was a subsidiary machinery provision better to
effect the
primary purpose of the gift. (6) As the prime purpose of the trust was psycholog
ical research
generally, then, if the trust did fail by virtue of F's having refused to exerci
se his powers,
there was a general charitable intent and the cy-pres doctrine would be applied;
the
appropriate cy-pres order would divide the fund equally between the two universi
ties for
their respective researches. (7) Were either university incapable of applying it
s share of the
fund into an appropriate research project then the entire fund should go to the
other provided
the latter was capable of doing so.
249. Performance of trust Money for improvement of church or similar purpose
.] The
Lesser Chapter of Brisbane Cathedral was a body corporate under the Religious Ed
ucational
and Charitable Institutions Act 1861 (Q). To prevent land adjoining the cathedra
l from being
devoted to commercial purposes and so as to conduct a hospital there, it acquire
d parcels of
such land and established "St Martin's Hospital". Conduct of the hospital was en
trusted to a
religious order of sisters. Funds were subscribed for building and maintaining t
he hospital as
the result of a public appeal. By about 1970 it had become impracticable to cont
inue
operating the hospital near the cathedral, and plans were made for a new hospita
l. An action
was brought to determine whether the land and funds in the hands of the sisters
were the
subject of any, and if so what, charitable trusts. Held: (1) Under the Cathedral
Canon, which
regulated the powers and duties of the Lesser Chapter, and which gave it in resp
ect of
cathedral property vested in it the functions and powers of the Corporation of t
he Synod of
the Diocese of Brisbane, under s 13 of the Church of England Act 1895 (Q) and s
2 of the
Church of England Act 1895 Amendment Act 1901 (Q), the Lesser Chapter had power
to sell
or otherwise deal with the land, including power to create trusts in favour of S
t Martin's
Hospital if it were a separate charity. (2) St Martin's Hospital was a separate
charity, and a
trust in its favour had been created by the appropriation of the land to its pur
poses, but for a
limited duration only, that is until the hospital should cease to be conducted o
n the site, with
a reverter to the Lesser Chapter at that time. (3) Such an appropriation, being
directed to
ensuring that the land would not be devoted to undesirable purposes but to a pur
pose suitable
to the environs of a cathedral, was a devotion of the land to "cathedral purpose
s" within cl 39
of the Canon. (4) The accumulated funds of the hospital were held on the charita
ble trusts of
the St Martin's Hospital, and as it was no longer practicable to carry on the ho
spital, a
scheme for their application cy-pres should be settled.
A-G (Q) (Ex rel NYE) V CORPORATION OF LESSER CHAPTER OF CATHEDRAL
CHURCH OF BRISBANE (1977) 136 CLR 353; 12 ALR 87 (HC).
250. Dissolution of charitable institution Persistence of charitable trust
Land granted
on charitable trusts reverting to Crown .] The Crown, in 1826, erected a corpo
rate body in
New South Wales, by letters patent with the object of making provision "for the
maintenance
of religion and the education of youth". There was a clause enabling the Crown t
o dissolve
the corporation, in which event it was declared that all the land granted should
revert to the
Crown, subject to all existing contracts, to be "held, applied and disposed of i
n such a
manner as shall appear to Us, Our heirs, and successors most conducive to the ma
intenance
and promotion of religion, and the education of the youth of the said colony". G
rants were
issued to the corporation, which were declared to be for making "provision for t
he
maintenance and promotion of religion, and the education of the youth of the sai
d colony";
and it was declared in the grants that they were "subject in all respects to the
provisions,
declarations, and regulations contained in the letters patent", and that the lan
d should be
"subject, also, to the rules, declarations, ordinances, provisos and directions
contained in the
letters patent relative to the powers thereby given to the corporation". Held, t
hat upon the
dissolution of the corporation in 1833, the land granted to it reverted to the C
rown, upon trust
for the maintenance and promotion of religion and the education of the youth in
the colony.
A-G (NSW) V EAGAR (1864) 3 SCR (NSW) 234 (NSW Sup Ct FC).
251. Gift to unincorporated charity in general terms Person entitled to claim
and give
receipt for gift not designated Uncertainty .] A devise or bequest in genera
l terms to an
unincorporated charitable society or association will not fail for uncertainty m
erely because
the person who can claim and give a receipt for what is given is not designated
in the gift.
IN THE WILL OF SEADON; UNION TRUSTEE CO OF AUSTRALIA LTD V CHERBURY
(1905) 27 ALT 118; 11 ALR 511 (Vic Sup Ct, a'Beckett J).
252. Mode of administration Delegation of power to person other than trustee
Gift to
be used for relief of distress in Europe in manner indicated by named person .]
A testator
left his residuary estate upon trust "for the relief of distress in Europe in th
e manner indicated
by the pastor for the time being of the Lutheran Church, Eastern Hill". The past
or indicated
that the residue should be distributed to a relief society in Melbourne, the soc
iety to purchase
the goods to send to a relief society in Germany for distribution in Germany by
the latter
society for the relief of distress in the nature of poverty. Held: (1) The fact
that the direction
required that goods should be distributed by the German organization named there
in did not
invalidate the direction. (2) If the transfer of the residue to the relief socie
ty in Melbourne
could serve no purpose other than to save the trustee the trouble of administeri
ng the fund the
direction would be invalid as providing for a disposition which was not a reason
able
application of the trust fund by the trustee towards the purposes of the trust,
but in reality an
unauthorized change in the trusteeship in the guise of such an application of th
e fund. (3) It
might be contended with some force that no precise meaning could be attached to
the word
"Germany" in the direction, and that the direction was therefore void for uncert
ainty. (4) A
new direction would be valid if it directed the trustee to apply the residue in
purchasing from
the relief society or otherwise goods which the society advised, and the trustee
considered
were suitable to be sent to the British Occupied Zone in Germany for the relief
of distress in
the nature of poverty in that area; and if it directed the trustee, subject to t
he obtaining of any
necessary exemptions and licences, to forward such goods to the relief society i
n the said
area for distribution by it, on behalf of the trustee, for the relief of distres
s in the nature of
poverty in the said area.
253. Gift to holder of office To officiating minister for time being De fac
to officiating
minister .] A testator bequeathed money to trustees to accumulate until the ha
ppening of
an event, and thereafter to pay the income to the officiating minister for the t
ime being of a
Presbyterian Church. On the happening of the event S became minister of the chur
ch,
exercised all the functions for 24 years and was recognized by the governing bod
y of the
church in Tasmania, though he was not called or inducted according to the rules
of the
Presbyterian Church. The income was never paid to S or his assignee. Held: (1) T
he bequest
was a good charitable gift being designed as an endowment for a church not in re
spect to the
minister for the time being in his personal capacity, although intended to augme
nt his
stipend. (2) The officiating minister de facto for the time being was personally
entitled to the
income of the fund. (3) The minister for the time being could make a valid assig
nment of his
interest in the fund.
254. Gift to holder of office Gift of income to Dean for the time being of An
glican
cathedral Vacancy of office for period Bishop nominally holding office Cur
ate
substantially performing duties .] A testatrix bequeathed to trustees 2,500 and
directed
them to apply the annual income for the benefit of the Dean for the time being o
f St David's
Cathedral, Hobart, provided that the Dean's stipend exceeded a certain amount. I
f the
conditions of this gift were not fulfilled the capital sum was to sink into resi
due. At her death
the gift took effect. On 1 November 1940, the then Dean died and no appointment
of a new
Dean was made until some time in 1942. In the meantime the Bishop, as provided f
or by the
Cathedral Act 1886 (Tas), held the office, appointing an acting incumbent, who r
eceived the
only payment by way of stipend. Held: (1) The Bishop was not entitled to the inc
ome, since
he was only a nominal holder of the office, neither performing its substantial d
uties nor
to the
being.
255. Gift to holder of office "Minister officiating" at Synagogue .] A test
atrix directed
her trustees to set apart for or pay to the proper officer of the Jewish Synagog
ue, Hobart, for
the benefit of that institution, a sum to be invested in trust and the income ap
plied for the
benefit of the minister officiating at that Synagogue. The Synagogue was without
a minister
until some years after the death of the testatrix. Held: (1) The gift of income
was for the
benefit of the minister for the time being since the testatrix intended a contin
uing benefit to
the Synagogue. (2) The income during the period while there was no minister shou
ld be
added to the capital sum.
555. Conveyance of land for school Trust of governmental obligation Power t
o sell
land .] In 1881 land was conveyed by a private individual to a Minister of the
Crown for
the purposes of a school. The consideration expressed for the conveyance was the
sum of
five shillings and "for other good causes and considerations" moving from the ow
ner. The
Attorney-General sought a declaration as to whether the land was held upon a cha
ritable
trust. Held: (1) A distinction is to be drawn between a true trust and a trust w
hich may be
characterised as a "political trust" or a trust of governmental obligation. (2)
Any obligation
created by the former owner's act of transferring the land to the Minister was n
o more than a
governmental obligation which would not be enforceable in a court of law. The pr
esent
Minister was free to dispose of the land in question and to apply the proceeds g
enerally for
the purposes of the Crown.
RE MODBURY PRIMARY SCHOOL (FORMER) (1997) 69 SASR 497 (SA Sup Ct,
Williams J).
[15-22] Divn 2. Validity and Practicability
[15] A. Non-existence of Objects
256. Gift to charitable fund Fund ceasing to exist .] A testatrix directed
that
five-twelfths of the residue of her estate be held upon trust for K fund, to be
applicable to its
general purposes. When the will was made there was in existence a body known as
K fund
which consisted of a voluntary association for the purpose of raising money and
applying it
for purposes set out in a constitution which it had adopted. The objects were ma
inly
charitable in the legal sense, though some were merely philanthropic or benevole
nt. The
association had disbanded and passed out of existence before the death of the te
statrix. Held,
that the case was distinguishable from cases in which it had been held that a gi
ft to an
institution which existed at the time a will was made and passed out of existenc
e before the
death of the testator lapsed, because, first, K fund was merely a voluntary asso
ciation and
was not an institution, and, second, the testatrix had stated expressly, and had
not merely left
to implication, that the share of residue was to be applied for the general purp
oses of the
fund. In so far as the objects of the fund were not charitable, s 37D of the Con
veyancing Act
1919 (NSW) applied, and the fund should be applied for such of the objects of K
fund as
were found to be charitable.
PERPETUAL TRUSTEE CO (LTD) V KING GEORGE'S FUND FOR SAILORS (1949) 50
SR (NSW) 145; 67 WN 72 (NSW Sup Ct, Roper CJ in Eq).
257. Gift to charitable fund Fund ceasing to exist .] A testator, by will d
ated 22 May
1917, directed his trustees to divide the whole of his property "equally between
the South
Australian Wounded Soldiers' Fund and The Industrial School for the Blind, North
Adelaide". He died on 19 June 1941 without having revoked or altered his will. I
n July 1915,
the South Australian Soldiers' Fund was established; one of its objects was to m
ake grants to
South Australian wounded soldiers and the dependants of those killed or wounded.
The fund
was incorporated in July 1927, and the incorporated body had the same objects as
the
unincorporated fund. In April 1936, another fund called "The Sailors' and Soldie
rs' Distress
Fund" was established. In July 1937, the incorporated fund was wound up and the
surplus
money and records in its possession were handed to The Sailors' and Soldiers' Di
stress Fund
which later was incorporated and remained in existence. Its objects were to gran
t assistance
to ex-members of the Royal Australian Navy and the Australian Imperial Forces an
d to
ex-members of His Majesty's Imperial Forces, limited in either case to those who
had been
engaged in active service overseas during World War I and who had resided in Sou
th
Australia for five years before the date of application to the fund and to their
dependants.
This society and the Limbless Soldiers' Association of SA were the only existent
societies
providing benefits for soldiers wounded in World War I. Held, that the Sailors'
and Soldiers'
Distress Fund, Incorporated, should receive one-half of the net estate of the te
stator because
it had succeeded to and administered the objects of the legatee named by the tes
tator, and
would be bound to administer the legacy for the same objects.
RE BINDER; SOBELS V A-G (SA) [1942] SASR 251 (SA Sup Ct, Mayo J). [Discussed in
note, 17 ALJ 176.]
258. Gift to charitable institution Institution ceasing to exist General pr
inciples .]
Held: (1) A disposition to a charitable corporation is to be treated as having p
resumptively
the necessary elements creating a trust so that the disposition to such a charit
able corporation
takes effect as a trust for the purposes of the corporation rather than as a gif
t to it to be
applied as it sees fit. (2) The effect of such a presumption is that while the p
urpose exists, the
failure of a particular institution, which is the vehicle through which the purp
ose is intended
to be implemented, does not prevent the trust for such purposes being carried ou
t. (3)
Accordingly a trust for a particular purpose may be carried into effect as long
as the purpose
itself remains unfulfilled, whether or not the funds of the institution have bee
n fully
expended.
259. Gift to charitable institution Institution ceasing to exist General pr
inciples .]
The testatrix gave the residue of her estate to be divided equally among a numbe
r of bodies,
which included "Melrose Farm of the William Forster Try Boys' Society", "the Sal
vation
Army Toddlers Home" and "centres of the Victorian Bush Nursing Association" name
d
Neerim South, Lorne, Glen Wills and Berriwillock. The Lorne Bush Nursing Centre
had
ceased to exist before the date of the will and shortly after its dissolution th
e Lorne
Community Hospital had been established. The Glen Wills Bush Nursing Centre had
also
ceased to exist before the date of the will and Omeo District Hospital then beca
me the
nearest hospital and centre of nursing facilities for residents of the Glen Will
s area. The
Berriwillock Bush Nursing Centre also had ceased to exist before the date of the
will and
upon its dissolution the Sea Lake Bush Nursing Hospital took over its work. The
William
Forster Try Boys' Society had conducted a training farm for underprivileged and
problem
boys known as Melrose Farm until it was closed down in 1958, before the date of
the will.
The Salvation Army conducted a home for babies and small children known as the T
oddlers'
Home at North Carlton between 1914 and 1947. In that year the Salvation Army sta
rted the
Kardinia Children's Home at Geelong before the date of the will with the intenti
on that it
should replace the North Carlton Home. The children at North Carlton were transf
erred to
the Kardinia Home, which institution was still in existence. Held: (1) It was an
essential
element of the intention of the testatrix that the shares of the Lorne and Glen
Wills centres
should be applied through the instrumentality of the Bush Nursing Movement, and
accordingly the gifts of these shares did not fall within any of the exceptions
to the lapse rule
and failed. (2) The only two indispensable or essential elements in the intentio
n of the
testatrix with respect to the gift to the Berriwillock Centre were (a) that the
gift should be
used to aid the treatment of sick and injured persons in the Berriwillock distri
ct, and (b) that
it should be so used through the instrumentality of the Bush Nursing Movement. T
he Sea
Lake Bush Nursing Centre could properly be regarded as the successor to the Berr
iwillock
centre, with the result that the gift to the latter centre fell within an except
ion to the lapse
rule and took effect in favour of the Sea Lake Nursing Centre, in favour of whic
h an order for
transfer of the share by way of cy-pres scheme should be made. (3) Melrose Farm
was itself
an "institution". It was an essential element of the testatrix's intention that
the purpose of the
relevant gift should be carried out through the instrumentality in some sense at
least of
Melrose Farm, with the result that the gift was not preserved by any exception t
o the lapse
rule and failed. (4) By the reference to the Salvation Army Toddlers Home in the
will the
testatrix meant the establishment known as Kardinia Children's Home. (5) Had the
intention
of the testatrix been to refer to the North Carlton Home, the Kardinia Home was
to be
regarded as the successor to it, and as the dominant intention of the testatrix
was wide
enough the gift would have been valid as falling within an exception to the laps
e rule.
RE TYRIE [NO 1] [1972] VR 168 (Vic Sup Ct, Newton J).
260. Gift to charitable institution Institution ceasing to exist.] A testat
rix directed her
trustees to pay the residue of her estate in equal shares to two named charitabl
e institutions.
At the time of her death one of the institutions had discontinued its activities
, and its trustees
had devoted its assets to other charitable purposes, though they still retained
a piece of
vacant land and a small sum of money. Held, that the gift of the share was to a
clearly
defined charitable institution maintained for a particular purpose; that institu
tion had ceased
to exist; there was no room for the application of the cy-pres doctrine, and the
gift therefore
lapsed.
RE MILLS; EQUITY, TRUSTEES, EXECUTORS & AGENCY CO LTD V EUNSON
[1934] VLR 158; [1934] ALR 150 (Vic Sup Ct, Mann ACJ).
rix, who died in
1929, made bequests to the Sanatorium for Consumptives at Echuca for the purpose
s of that
institution. At one time there existed an institution which conducted sanatoria
for
consumptives at Echuca and at Macedon, but in 1908, owing to lack of funds, it c
eased its
activities. In 1911 an Act was passed which provided for the dissolution of the
institution and
vested its property in the Crown, and enacted that any sums which, by any will o
f which
probate was granted before the commencement of the Act, were directed to be paid
to the
institution, should be paid into a fund in the Treasury, and used as the Governo
r in Council
might direct in aid of any institution making provision for the prevention and c
ure of
tuberculosis. By a will proved in 1897, a share of the income derived from inves
tments was
payable to the institution in perpetuity. Held, that there was no continuing end
owed charity,
and the bequests made by the testatrix could not be regarded as augmenting an en
dowment;
they were bequests to a specific institution which was extinct, and they therefo
re lapsed.
RE WEISS; NATIONAL TRUSTEES EXECUTORS & AGENCY CO OF A/ASIA LTD V
BRENNAN [1934] VLR 269; [1934] ALR 347 (Vic Sup Ct, Mann ACJ).
or gave his
estate to a society which at the date of his death had ceased to have any existe
nce according
to its own rules for nearly ten years. Held, that an integral part of the societ
y having gone and
there being no power to restore it or to do any corporate act, the society's cor
porate existence
had been extinguished before the testator's death and the primary gift failed.
RE JONES [1907] SALR 190 (SA Sup Ct FC).
263. Gift to charitable institution Institution ceasing to exist.] By a wil
l executed in
1933 a testator who for many years had been closely connected with the city of B
roken Hill
made a gift to "The Broken Hill Benevolence Society". There was not, and never h
ad been
any institution at Broken Hill precisely answering that description. A society c
alled "The
Broken Hill Benevolent Society" was in existence at the time of the making of th
e will, but it
ceased to exist in 1940, four years before the testator's death. Held, that the
gift to "The
Broken Hill Benevolence Society" was intended to be a gift to the Broken Hill Be
nevolent
Society, but as that society had ceased to exist before the testator's death, an
d no general
charitable intention was shown in the will, the gift lapsed.
RE GUIDI [1948] SASR 207 (SA Sup Ct, Reed J).
264. Gift to charitable institution Institution ceasing to exist.] Held, th
at as a matter of
construction a gift of residuary estate was for the benefit of a particular body
, the Sydney
Sanitarium and Benevolent Association Limited; and as that body had ceased to ex
ist at the
date of the testatrix's death, the gift failed, and the residuary estate must be
held by the
executor for the next of kin as on an intestacy. Per Ligertwood, J Assuming th
at the
Sydney Sanitarium had survived the testatrix and had still been in business as t
he Sanitarium
Health Food Company and assuming that the gift of the residuary estate could hav
e been
construed as one for certain defined purposes, viz, those contained in its memor
andum of
association, it could not have been treated as a good charitable gift, because s
ome of the
purposes were commercial and non-charitable.
RE SMITH; EXECUTOR TRUSTEE & AGENCY CO OF SOUTH AUSTRALIA LTD V
A/ASIAN CONFERENCE ASSOCIATION LTD [1954] SASR 151 (SA Sup Ct, Ligertwood
J).
265. Gift to charitable institution Institution ceasing to exist Work conti
nued by
another entity .] A share of residue was left by will in trust "for the genera
l purposes of the
Cat Protection Society" which at the date of the will was an unincorporated asso
ciation but
which had become incorporated by the date of the death of the testatrix. There h
ad been no
interruption in the continuity of the work of the society by reason of its chang
e in legal status.
No new election of office bearers was considered necessary on incorporation and
the
company used the same buildings and the same bank account as before. Held, that
the gift
was not one to the unincorporated body so as to fail by reason of that body havi
ng ceased to
exist, but it created a purpose trust for the charitable work of the body and th
e share should
be directed to be paid to the treasurer of the company to be applied for its cha
ritable objects,
without the necessity of directing the settlement of a scheme.
.]
nued by
another entity .] A testatrix left the residue of her estate "to the Lutheran
Mission, New
Guinea, for their sole use and benefit absolutely". When the will was made that
body's
activities were being taken over by the Evangelical Lutheran Church of New Guine
a. In 1976
the latter church took over the property of the former and the former ceased to
exist. The
testatrix died in 1979. Held: (1) The will disclosed a dominant charitable inten
tion on the
part of the testatrix, and the gift of her residuary estate did not lapse. (2) T
he Evangelical
Lutheran Church of New Guinea could not be regarded as a successor institution t
o the
Lutheran Mission, New Guinea, but an order should be made directing that the gif
t should be
applied cy-pres by payment of the whole of the fund to that Church.
In the Estate of LIEBELT (1983) 32 SASR 138 (SA Sup Ct, Sangster J).
nued by
another entity .] A testator left a sum of money to the Director of Education
to be used for
the benefit of the Teachers' Training College (a departmental institution for tr
aining
departmental teachers), in the discretion of the director and the principal of t
he college. Later
the department handed over the training of its teachers to the University of Tas
mania and
leased to it the college building. Held, that the gift was a good charitable gif
t. The college
having no existence independently of the Education Department, the gift was for
the work
carried on there, and, this work being still carried on in another place, the gi
ft did not lapse
and its use was in the sole discretion of the director, since there was no longe
r a principal.
Even if the college were a separate institution in existence at the date of the
testator's death,
the fund would fall to be applied cy-pres.
RE WRIGHT; PILLGREM V A-G [1951] Tas SR 13 (Tas Sup Ct, Green J).
268. Gift to charitable institution Suspension of activities of institution a
nd subsequent
revival .] A testator gave one-fourth of the residue of his estate to the Vict
orian Council of
Mental Hygiene, a society which at the date of the will had suspended its activi
ties on
account of war conditions. At the end of 1948 steps were taken to revive the soc
iety and the
first post-war meeting was held on 11 April 1949. The testator died on 30 April
1949. Held,
that the society had not ceased to exist and the gift was effective.
JEFFREY [1950] VLR 382; [1950] ALR 796 (Vic Sup Ct, Dean J). [Discussed in note,
25
ALJ 173.]
269. Gift to charitable institution Whether institution had ceased to exist
Modification
of charitable work and methods of performance .] The testatrix gave interests
in her
residuary estate to "St Vincent de Paul's Girls' Orphanage, Napier Street, South
Melbourne"
and "St John of God, Training Centre for Retarded Children, 1241 Nepean Highway,
Cheltenham". At the date of death the name of St Vincent de Paul's Girls' Orphan
age had
been altered to St Vincent de Paul's Children's Home, the name of St John of God
Training
Centre for Retarded Children had been altered to "Churinga" and the main premise
s of each
institution had been moved to a different address from that stated in the will.
Held, that in
each case the institution which the testatrix had in contemplation in her will h
ad not ceased
to exist, with the result that the gifts had not lapsed and remained valid and e
ffective.
RE FLYNN [1975] VR 633 (Vic Sup Ct, Starke J).
270. Gift for charitable object Practicability Test and time for determinin
g .] By
para (3) of her will a testatrix directed her trustee (a) to purchase and proper
ly equip a home
for the maintenance and care of or for otherwise mercifully dealing with homeles
s stray and
unwanted animals, and (b) to invest the balance and apply the income for the per
manent
upkeep including wages of the home. By para (4) she empowered the trustee to pos
tpone the
carrying out of these trusts for such period as should be necessary in order to
accumulate a
fund sufficient to carry them out, and for this purpose to capitalize the net in
come of the
estate during the period of postponement. By para (5) she empowered her trustee
to postpone
the realization of the estate for such period as it in its discretion should thi
nk fit. Held: (1)
"Homeless stray and unwanted animals" in the will referred to domestic animals,
that is, such
animals as are commonly kept and cared for around human habitations. So construe
d, the
trust declared in para (3) was a valid and charitable trust. (2) In order to det
ermine whether a
charitable trust is impracticable as at the date of death the relevant inquiry i
s not only
whether it was impossible at that date to use the charitable fund for the purpos
e immediately
but also whether there was at that date no reasonable prospect of its becoming p
ossible so to
use the fund at any future time. (3) An inquiry into practicability should not b
e ordered by the
court until the trustee should have reached the point of concluding that it coul
d not see any
way of obeying the precise directions of the will. The kind of establishment tha
t would be
needed to satisfy the terms of the trust considered. (4) The estate was given im
mediately to
charity, and hence there was no violation of the rule against perpetuities in pa
ras (4) or (5).
[[1963] SASR 173 affd.]
g .] A
testator who died in 1897 gave land to be used for the building of a hospital fo
r the use of the
Presbyterian and Protestant poor and directed that after the deaths of his wife
and his last
surviving nephew all his property be sold and out of the proceeds a nominated su
m be given
to the building of the hospital and a further sum be invested and the annual int
erest go to the
income of the hospital. In 1919 it was declared by the Supreme Court of New Sout
h Wales
that the devise of the land was subject to prior life estates to named nephews.
It was also
declared that the devise of the land was a valid charitable devise without preju
dice to the
right of beneficiaries under the will to contend that the cy-pres doctrine was n
ot applicable if
the purposes were incapable of taking effect when the funds became available for
the
purposes. The land was sold in 1920 pursuant to an order of the court. Held, tha
t in
considering, after the determination of the life interests, whether it could be
said that as at
the date of the testator's death there was a reasonable prospect that it would b
e practicable to
give effect to the trusts of the money, it was not permissible to have regard to
events which
occurred after the testator's death. The decline in the value of money since 189
7 was not
something which could reasonably have been foreseen in 1897 and at that date the
re was a
reasonable prospect that it would be practicable to carry the trusts into effect
. Accordingly
they should be executed cy-pres.
A-G (NSW) V PERPETUAL TRUSTEE CO LTD (1966) 115 CLR 581; 40 ALJR 97 (HC).
g .] A
testator gave the net income from his residuary estate to his wife EH and her si
ster MW in
equal shares during their lifetime, "and when one shall die then the survivor sh
all receive half
of the nett income until her death". He directed his trustees to hold the balanc
e of his estate
intact for ten years from the death of the survivor, either EH or MW, and then t
o realize his
estate and apply the proceeds to a fund in memory of his deceased daughter. This
fund was to
be used to build homes for aged and infirm persons in a particular place and the
testator left
"all details of this fund" and "authority generally" with his executors (who wer
e his trustees)
absolutely. The testator died. MW was the last survivor. Held: (1) The half shar
e of net
income accruing from the estate from the death of EH until the death of MW was i
ntended
by the testator to fall into and form part of the testator's residuary estate an
d become part of
the trust fund created in memory of his daughter. (2) The income of the estate a
fter 21 years
from the death of the testator, the direction for accumulation of which failed a
s contrary to
the Law of Property Act 1936 (SA), s 60, was effectively given to the charitable
fund and the
court could authorize the application of the residuary estate and income to the
purposes
which the testator intended at the end of the 21 year period rather than at the
later time
contemplated under the will. (3) The will contemplated that the fund should be a
dministered
by the trustees, and accordingly the court could not direct that it be handed ov
er to another
party for administration (as was requested by the trustees) unless the precise s
cheme directed
by the will failed by reason of impracticability. (4) There should be an inquiry
whether at the
death of the testator it was practicable to carry his intentions into effect, or
whether at that
date there was any reasonable prospect that it would be practicable to do so at
some future
time limited to the period expiring 21 years from the date of death of the testa
tor, and if upon
inquiry the trust were found to fail for impracticability then it would be neces
sary to consider
whether the fund should be applied cy-pres.
RE HART (1972) 3 SASR 147 (SA Sup Ct, Mitchell J).
273. Gift for charitable object Practicability.] A testator, after a number
of bequests,
directed the balance of all money to be given to St Andrew's Cathedral Chapter f
or a new
cathedral when they should build, and for a window. There was no general charita
ble
intention disclosed by the will. There was evidence that proposals for rebuildin
g the
cathedral had been considered, but nothing was definitely contemplated, and it w
as quite
uncertain what period of time would elapse before any such proposals would be ca
rried out.
Held, that the first part of the trust, for the new cathedral, failed, but that
the second part of
the trust, for a window, was a valid charitable gift, and that a moiety of the f
und should be
given to the Chapter for this object.
MUIR V ARCHDALL (1918) 19 SR (NSW) 10; 36 WN 4 (NSW Sup Ct, Harvey J).
274. Gift for charitable object Practicability Donee body without power to
receive and
apply gift .] A testatrix bequeathed $20,000 to the trustees of the Christian
Alliance for
Women and Girls, to be used on the development of a holiday home building as a h
ome for
aged persons. The Alliance was an unincorporated association, which, under its r
ules as they
then stood, could not receive and apply the legacy for its expressed purpose. He
ld: (1) The
bequest did not show any general charitable intention. (2) A charitable gift wil
l fail for
impracticability where under the constitution of the donee it cannot receive and
apply the gift
for the purpose for which it was given. The gift therefore failed. Per curiam
In the present
case, assuming that it was open under the rules of the Alliance to make the chan
ges in its
rules necessary to give it this power (which it was not), no reasonable man coul
d have
foreseen at the time of the death of the testatrix that these changes would be m
ade within a
reasonable time thereafter in such a form as to permit the gift to be accepted,
and, even on
that assumption therefore, the gift would have failed.
HARRIS V SKEVINGTON [1978] 1 NSWLR 176 (NSW Sup Ct CA).
275. Gift for charitable object Practicability Absence of general charitabl
e intention .]
A testatrix created a trust in favour of a charitable object and "my grandchil
dren and their
descendants" and apportioned some income between those objects but then directed
an
accumulation without object. Held: (1) The inclusion in the beneficiaries of "de
scendants"
could not be limited to children and therefore the gift was perpetual and the be
neficial
interest of those entitled from the grandchildren was void. (2) Section 131 of t
he Property
Law Act 1958 (Vic) operates to save from invalidity a trust where the non-charit
able purpose
intermingled with the charitable purpose is a trust the purpose of which is to b
enefit
individual persons. (3) The direction to accumulate was not saved by the Perpetu
ities and
Accumulations Act 1968, s 19, as there was no direction as to its disposition. (
4) In any event
the fact that the direction to accumulate was without purpose or object meant th
at the trust
was not exclusively for charitable purposes and s 131 of the Property Law Act di
d not apply
to sever the accumulation, because it was without purpose or object. (5) Since t
here was no
general charitable intention the charitable trust failed for impracticability.
EQUITY TRUSTEES EXECUTORS & AGENCY CO LTD V EPSTEIN [1984] VR 577
(Vic Sup Ct, Kaye J).
276. Gift to non-existent institution .] By will, made in 1943, a testatrix g
ave a pecuniary
legacy to "The Church of England Men's Hostel, Wright Street, Adelaide", and lef
t the
residue of her estate in trust for "the Adelaide Children's Hospital Incorporate
d and the
Church of England Men's Hostel, Wright Street, Adelaide, in equal shares, or for
such one of
the said institutions as shall be in existence at the time of my death absolutel
y". At that time
the Church of England Men's Society conducted a hostel for aged and destitute me
n in rented
premises in Wright Street. The hostel, known as "the Church of England Men's Hos
tel", was
never incorporated and never had any formal constitution. It was managed by a co
mmittee
appointed by the society. In 1947, owing to its premises being sold by the landl
ord, the hostel
was closed and its operations were suspended. Its funds were invested and held i
n trust by the
committee with a view to the hostel being re-established when an opportunity sho
uld occur.
In 1950, the Synod of the Church of England established a home for the aged; and
part of the
hostel funds was used for the addition of a wing for the accommodation of aged m
en, to be
known as the "Church of England Diocesan Men's Hostel Wing". The testatrix died
in 1951.
The hostel committee continued to meet at infrequent intervals until 1953, when
the
remaining funds of the hostel were paid to Synod for the "Church of England Dioc
esan Men's
Hostel Wing" at the home. The hostel committee was then dissolved. Held: (1) The
hostel
was not "in existence" at the time of the death of the testatrix, and the residu
e of her estate
was to be held in trust for the Adelaide Children's Hospital Incorporated absolu
tely. (2) The
pecuniary legacy should be paid to the Synod of the Church of England to be appl
ied for the
purposes of the Church of England Diocesan Men's Hostel Wing of the home.
RE QUESNEL [1959] SASR 106 (SA Sup Ct, Napier CJ).
277. Gift to non-existent institution .] A testator made a bequest to "The Ab
bey Convent
of Orphans in Malta". No orphanage or other institution of that name existed but
there were
16 orphanages in Malta. Held: (1) It was clear that the testator did not wish to
benefit the
next of kin and the will disclosed a general charitable intent. (2) In such case
s little is needed
to tip the scales in favour of validity. (3) The reference to a non-existent ins
titution was an
inept attempt to give particular expression to a general charitable intention to
benefit orphans
in Malta and the gift must be applied cy-pres.
RE PACE (1985) 38 SASR 336 (SA Sup Ct, Cox J).
278. Gift to non-existent institution Ceasing to exist in testator's lifetim
e .] The
circumstances under which, upon a gift by will to a charitable institution which
has ceased to
exist, a general charitable intention will be presumed and administration cy-pre
s ordered,
discussed.
[16-17] B. Indefinite and Uncertain Objects
[16] (i) In General
279. Gift to Roman Catholic Archbishop to be used for "good of religion" .] H
eld, that a
residuary bequest "to the Roman Catholic Archbishop of Brisbane and his successo
rs to be
used and expended wholly or in part as such Archbishop may judge most conducive
to the
good of religion in this diocese" is not a good charitable bequest and is void.
The expression
used by the testator is not identical with the expression "for religious purpose
s".
[(1910) 11 CLR 637; 17 ALR 457 affd.]
394; 28 TLR 257; 56 SJ 324 (PC).
280. Gift to apply to charitable purposes or "any other purposes" .] A devise
of real
property to "the Reverend D O'K ... Parish Priest", with a direction to sell and
expend the
proceeds of sale "in and towards Church or Convent purposes at C or for any othe
r purpose
or purposes that in his discretion he may think best", Held, not to be a good gi
ft for charitable
purposes, but void for uncertainty.
[(1904) 4 SR (NSW) 175; 21 WN 78 affd.]
A-G (NSW) V METCALFE (1904) 1 CLR 421 (HC).
281. Gift for "charitable benevolent or philanthropic institutions" .] Gifts
of funds by a
testator to trustees with discretion to apply them as the trustee should think f
it, between such
"charitable benevolent or philanthropic institutions", and such persons "to whom
a gift would
be an assistance and benefit", and such of the "poor needy and suffering" and su
ch "person or
persons for the time being in needy or straitened circumstances" as the trustees
should think
deserving of assistance, and in making gifts to funds raised for the relief of t
he sick and
afflicted, with a "free and unfettered hand" in the distribution thereof, and in
endowing
hospitals or buildings "to be used for charitable, benevolent or philanthropic p
urposes", and
in aiding or assisting any person or persons whatsoever to whom in the opinion o
f the
trustees aid or assistance "would be a benefit and advantage in this life", Held
, void for
uncertainty, as the trustees had power to apply the funds wholly or in part at t
heir discretion
to any of the purposes mentioned, some of which were not charitable. Held, also,
that the
repeated reference by the testator throughout the will to the "trusts in favour
of charities
contained in the will" was not a sufficiently strong indication of a general cha
ritable
intention to restrict the clear words of the gift in question to charitable purp
oses only.
A-G (NSW) V ADAMS (1908) 7 CLR 100; sub nom BARRY V ADAMS 9 SR (NSW) 121
(HC).
282. Uncertainty as to particular charitable purpose .] If there is certainty
as to the
property subject to the trust and certainty that the testator intended to devote
that property to
a charitable purpose, a gift cannot fail for uncertainty even if there is uncert
ainty as to
particular charitable intent.
283. Whether objects exclusively charitable Effect of grant of discretion to
trustees to
choose particular beneficiaries Gift to such charitable institutions bodies an
d
organizations as trustees might select .] A testator left the balance of his r
esiduary estate
to his trustees to distribute "between such charitable institutions bodies and o
rganizations in
the Perth-Fremantle Area as my trustees may select". Held: (1) The word "charita
ble" applied
to the three nouns "institutions", "bodies" and "organizations", and there was n
o possibility of
the trustees applying any part of the fund to a non-charitable purpose. (2) It w
as no objection
to the gift that the testator had left it to his trustees to determine what inst
itutions should
benefit; accordingly, the bequest was a valid charitable bequest.
[(1950) 52 WALR 30 affd.]
464; [1950] ALR 735 (HC).
284. Gift for charitable purposes followed by example of objects Limitation o
f
succeeding clause to purpose expressed in preceding words .] A testator bequea
thed the
residue of his estate to the funds of a religious body "to be employed by them i
n relieving
cases of need and distress and in assisting persons in indigent circumstances an
d in particular
(but not exclusively or in any way that shall limit their discretion) in assisti
ng and relieving
persons who have been or shall be adversely affected by the effects of" World Wa
r II. Held,
that the bequest was a valid charitable bequest. The clause beginning with "and
in particular"
should be construed as merely giving a special example of persons in need or in
distress and
of persons in indigent circumstances; semble, if that clause stood alone, it wou
ld go beyond a
valid charitable bequest.
285. Grant by will of discretionary power to trustee to transfer property to na
med charity
No gift over .] A testatrix provided: "My trustees have discretionary power to
transfer my
mortgages, and property, and Shares in Companies invested in my name to the Luth
eran
Mission ... for building Homes for Aged Blind Pensioners after all expenses paid
, and I desire
that there shall be no subsequent adjustment or apportionment therefore between
any of the
beneficiaries under my Will". There was no express residuary clause in the will.
The
Supreme Court of South Australia (Bray CJ) held that this clause was an attempt
by the
testatrix to delegate her testamentary power and was void for uncertainty and th
at there was
necessarily an intestacy. On appeal to the High Court, Barwick CJ, and Windeyer
J, were of
opinion that the appeal should be allowed. McTiernan and Menzies JJ, were of op
inion that
the Supreme Court of South Australia correctly held that there was no gift in th
e clause. The
High Court being equally divided as to the result of the appeal, the decision of
the Supreme
Court of South Australia on this point was affirmed pursuant to s 23(2)(a) of th
e Judiciary
Act 1903 (Cth).
[[1969] SASR 115 affd.]
LUTHERAN CHURCH OF AUSTRALIA SOUTH AUSTRALIAN DISTRICT INC V
FARMERS' CO-OPERATIVE EXECUTORS & TRUSTEES LTD (1970) 121 CLR 628; 44
ALJR 176; [1970] ALR 545 (HC). [Discussed in note, 4 Adel L Rev 210.]
286. Grants to corporation "for the maintenance of religion and the education o
f youth" .]
The Crown, in 1826, erected a corporate body in New South Wales, by letters pate
nt, with
the object of making provision "for the maintenance of religion and the educatio
n of youth"
in the colony. The Crown could also dissolve the corporation, in which event all
the land
granted should revert to the Crown, subject to all existing contracts in respect
thereof to be
"held, applied and disposed of in such a manner as shall appear to Us, Our heirs
, and
successors most conducive to the maintenance and promotion of religion, and the
education
of the youth of the said colony". In 1829, and afterwards, grants were issued to
the
corporation, which were declared to be for making "provision for the maintenance
and
promotion of religion, and the education of the youth of the said colony"; and i
t was declared
in the grants that they were "subject in all respects to the provisions, declara
tions, and
regulations contained in the letters patent", and that the land should be "subje
ct, also, to the
rules, declarations, ordinances, provisos and directions contained in the letter
s patent relative
to the powers thereby given to the corporation". Held, that it was a trust for a
religious or
charitable purpose, and not void for uncertainty.
A-G (NSW) V EAGAR (1864) 3 SCR (NSW) 234 (NSW Sup Ct FC).
287. Devise to "Archbishop of Sydney" .] A testator gave his residuary estate
"upon trust
for his Grace the Archbishop of Sydney, his successors and assigns", and to be d
isposed of by
him in the district of B, as he or they shall direct. There was no protestant ar
chbishop.
Hargrave PJ held that the Roman Catholic Archbishop of Sydney was a title not re
cognized
by law and that the bequest was, therefore void. Held, on appeal, that it failed
as a charitable
gift from its uncertainty, and that the bequest was, therefore void. Section 24
of the Roman
Catholic Relief Act 1830 (NSW) did not apply to archbishoprics not established a
t the
passing of the Act and therefore, the bequest was void on that account; and it c
ould not be
construed as a gift to the archbishop personally.
SMITH V KEARNEY (1881) 2 LR (NSW) Eq 49; Tarl 40 (NSW Sup Ct FC).
288. Gift to be distributed amongst a "few of my friends, the priests" Discre
tionary power
of selection .] A testator gave his residuary estate "to be disposed of" accor
ding to the
discretion of his executor and "if after my funeral expenses and all my just deb
ts are paid
anything remains the same is to be distributed among a few of my friends namely
the priests
to be applied for masses for my soul". Held, that the executor's discretion was
not limited to
the time and method of realization, but that he had a power of selection among t
he persons
indicated, and that the gift did not fail for uncertainty.
289. Gift for "religious, charitable and useful" purposes .] A testator beque
athed a fund to
trustees to distribute it amongst "such one or more, to the exclusion of any oth
er or others, of
the various religious, charitable, and useful institutions in the Colony of Vict
oria", and in
such shares and proportions as the trustees should in their absolute discretion
think fit. Held,
that the words were not to be read as "religious or charitable or useful" in whi
ch case the gift
would be bad, but the ordinary grammatical reading would be institutions which f
ulfilled
each of the three conditions, and the gift was to be read as "religious and usef
ul" or
"charitable and useful", the word "useful" qualifying the preceding words, and t
hat the gift
was good.
WILSON V A-G (VIC) (1882) 8 VLR (E) 215; 4 ALT 14 (Vic Sup Ct, Molesworth J).
290. Gift for "such charitable purposes as the trustees in their absolute discr
etion deem fit"
Prohibition by court of private charitable purposes .] A bequest to trustees
of property
"to be employed in such charitable purposes as the trustees shall in their absol
ute discretion
think fit", is not void for uncertainty. Semble, per Molesworth J, that if the
court should hold
that an application to purposes of private charity is illegal, it should prohibi
t the trustees from
making it, not defeat the trust altogether.
SUMNER V SUMNER (1884) 10 VLR (E) 261; 6 ALT 111 (Vic Sup Ct, Molesworth J).
291. Gift to such "charitable or benevolent institutions" as may be selected by
trustee .]
The following bequest was made by a testator: "I bequeath to my wife the sum of 2
0,000, to
be divided by her amongst such of charitable or benevolent institutions or organ
isations of a
similar character in Victoria as she may, in her uncontrolled discretion, think
proper". Held, a
valid charitable gift, and not void for uncertainty.
MOULE V A-G (VIC) (1894) 20 VLR 314 (Vic Sup Ct, a'Beckett J).
292. Gift to unincorporated charity in general terms Person entitled to claim
and give
receipt for gift not designated Uncertainty .] A devise or bequest in genera
l terms to an
unincorporated charitable association will not fail for uncertainty merely becau
se the person
who can claim and give a receipt for what is given is not designated in the gift
.
293. Moiety for such "charitable uses or purposes as [trustee] shall in his abs
olute and
uncontrolled discretion think fit" Other moiety for "such religious uses and p
urposes as
[trustee] shall in his absolute and uncontrolled discretion think fit" .] A te
statrix
bequeathed to her trustee the residue of her estate and directed him to hold it
"upon trust to
dispose of one moiety of the same for such charitable uses or purposes as he sha
ll in his
absolute and uncontrolled discretion think fit, and to dispose of the other moie
ty of the same
for such religious uses or purposes as he shall in his absolute and uncontrolled
discretion
think fit". Held, that the bequest of the moiety for charitable uses or purposes
was a good
charitable bequest, but that the bequest of the other moiety for religious uses
or purposes was
void for uncertainty.
RE DOBINSON; MADDOCK V A-G (VIC) [1911] VLR 300; (1911) 33 ALT 20; 17 ALR
280 (Vic Sup Ct, Cussen J).
294. Gift for philanthropic institutions or objects, mechanics' institutes, or
any other objects
of a like or similar nature .] A testator provided that a fund should be set a
side out of his
estate and invested, and directed his trustees to pay the income "to such charit
ies hospitals
philanthropic institutions or objects free libraries or mechanics' institutes ch
urches or any
other objects of a like and similar nature in the State of Victoria as they shou
ld in their
absolute discretion deem fit". Held, that this was not a good charitable trust,
but was void for
uncertainty.
IN THE WILL OF FORREST; FORREST V MCWHAE [1913] VLR 425; (1913) 35 ALT 59;
19 ALR 414 (Vic Sup Ct, Madden CJ).
295. Preaching of Gospel Discretion as to mode To be independently of "reco
gnized
Churches" Whether essential that trust be executed by designated persons .]
A testator
bequeathed money to two of his sons and directed that it should "constitute a fu
nd in their
hands to subsidise the preaching of the Gospel of Our Lord Jesus Christ as they
in their
wisdom are led by Him but without any restrictions as to the mode in which it sh
all be
managed and expended or the person or persons to whom it shall be paid so long a
s they see
it is used to enable the Gospel to be preached independently of the recognised C
hurches".
One of the sons died before any steps had been taken to distribute the money. He
ld, that the
bequest constituted a valid charitable trust for the preaching of the Gospel, an
d that the
means envisaged by the testator for achieving the purpose, namely that the two s
ons should
agree upon subsidizing some mode of preaching of the Gospel independently of the
recognized churches, was not an essential element in the trust.
296. Gift to such charitable or "philanthropic" institutions as trustee should
select .] A
testator directed his trustee to invest the surplus of his residuary estate and
pay the income to
named children and another named person for life equally, or to the survivors, a
nd upon the
death of the survivor to apply the residue to "such charitable, religious, phila
nthropic,
educational or scientific institution or institutions absolutely" as his trustee
should select.
Held, that the gift was void for uncertainty.
RE WHITE; EXECUTOR TRUSTEE & AGENCY CO OF SA LTD V A-G (SA) [1933]
SASR 129 (SA Sup Ct, Richards J).
297. Gift to "public benevolent institutions and/or institutions for the relief
of persons in
necessitous circumstances" .] A testatrix gave her residuary estate upon trust
"for
distribution in such amounts shares or proportions between such public benevolen
t
institutions in South Australia and/or institutions for the relief of persons in
necessitous
circumstances in South Australia as my trustee in its absolute discretion shall
select and
determine". Held, that the gift was void for uncertainty.
RE EDWARDS [1952] SASR 67 (SA Sup Ct, Napier CJ).
298. Grant of discretion to specified person to choose particular beneficiary .
] A testatrix
gave to a legatee "all moneys from the Savings Bank or S C Ward & Co who holds s
hares
and debentures, etc, also all furniture goods and chattels owned by me at my dea
th for her
own use and what is left at her death for distribution to some mission to poor a
nd needy at
her discretion". Held, that the gift over of what was left at the death of the l
egatee was a valid
charitable bequest, and the legatee had the power to select or appoint the parti
cular mission
to benefit, although her power of selection or appointment was limited to a miss
ion "to poor
and needy".
IN THE ESTATE OF WARD [1957] SASR 125 (SA Sup Ct, Ross J).
299. Gift for purposes of organization having no constitution or rules Possib
ility of use
for non-charitable purposes in future Australian Inland Mission in Queensland
.] A
testatrix directed her trustees to hold the balance of her estate upon trust "to
transfer or pay
the same to Presbyterian Church of Queensland to establish a fund ... which shal
l be applied
for such [sic] purpose relating to the Australian Inland Mission in Queensland".
The
Australian Inland Mission had no constitution and no rules. It was conducted by
the
Presbyterian Church of Australia and operated by the Australian Inland Mission B
oard which
was a special committee of the General Assembly of the Presbyterian Church of Au
stralia
appointed triennially by the General Assembly. In Queensland the activities of t
he mission
were conducted by the Queensland Council of the Australian Inland Mission Board
and the
Council was composed of persons appointed by that Board and was subject to its g
eneral
direction. Held, that as it appeared that in the future the fund might consisten
tly with the will
be applied to other than strictly charitable purposes, the gift failed.
RE CARSON; CARSON V PRESBYTERIAN CHURCH OF QUEENSLAND [1956] QSR
300. Gift to "any deserving Roman Catholic institution" .] A testator by a co
dicil to his
will left portion of his estate to his trustees upon trust "at their discretion
to pay the same to
any deserving Roman Catholic institution". Held: (1) The trust failed for uncert
ainty. (2) The
301. Gift of land to be used for the celebration of Divine Service "or any othe
r object end or
purpose having in view the spiritual intellectual moral or bodily welfare of the
members of"
the church .] The testator devised land (upon which was erected a church) upon
trust "to
be used for the celebration of divine service therein in accordance with the rit
es and
ceremonies of The John Knox Presbyterian Church or any other object end or purpo
se having
in view the spiritual intellectual moral or bodily welfare of the members of The
John Knox
Presbyterian Church and I direct that the Reverend J T J Whyte be retained as Mi
nister so
long as he is able and willing to discharge the duties". There was a church on t
he land in
which divine service was regularly conducted and the church and land were also u
sed by
members of the John Knox Presbyterian Church for the conduct of a Sunday school,
a youth
club, a girls' club and a tennis club, and for other activities conducted in the
interests of the
members and of young people connected with the church. It was contended that the
trust
failed because the trustees were given a discretion to apply the trust property
for
non-charitable purposes. Held, that the devise was for the purpose of enabling t
he land to be
used for the celebration of divine services and also for those activities of the
church which
had hitherto been carried on on the land and which were very extensively in Quee
nsland
regarded as a very important aspect of the work of a church. Accordingly, the tr
ust was valid.
RE STEWART'S WILL TRUSTS; PAIN V PRESBYTERIAN CHURCH (Q) [1962] QWN
24 (Q Sup Ct FC).
302. Direction to set aside assets as "charitable trust" Income to be used fo
r "benefit
maintenance and advancement of youth" .] The testator gave the whole of his es
tate upon
trust "to transfer and set aside as a permanent charitable trust and in respect
of which I
declare a general charitable intention" certain assets "and to use the returns a
nd incomes
therefrom for the benefit maintenance and advancement of youth in such manner an
d in such
proportions and in all respects as my Trustee shall think fit". Held, that the c
haracterization
of the trust as charitable did not limit the phrase "for the benefit maintenance
and
advancement of youth", but that phrase expanded the trust to include purposes wh
ich were
non-charitable, with the result that the trust failed.
RE PAYNE [1968] Qd R 287 (Q Sup Ct, Matthews J).
303. Whether objects excessively charitable To co-operate with others whose w
ork in
harmony To do other things for persons seeking help To dispense charity in a
ll its
aspects .] A testatrix bequeathed her residuary estate upon trust for the "New
Life Centre"
to be used for the benefit of the Centre at the discretion of its Committee. The
Centre was an
unincorporated association which, at the date of death of the testatrix, consist
ed of 157
members. The Centre was registered as a charity under the Collections Act 1966 (
Q). Clause
2 of the constitution of the association by para 6 provided: "To do all other th
ings which the
committee may from time to time consider desirable or necessary for the benefit
of persons
seeking help from the New Life Centre ... (b) 1. To dispense charity in all its
aspects and in
such ways as may from time to time be determined by the committee. 2. To co-oper
ate with
other individuals or groups whose work is regarded by the committee as in harmon
y with that
of the New Life Centre". Held: (1) The bequest was not charitable. (2) Clause 2(
b) 2
extended the objects of the centre to non-charitable purposes.
[[1972] QWN 27 affd.]
RE HAKS [1973] Qd R 455 (Q Sup Ct FC).
556. Gift to named charities and others to be selected Gift to pay to person
or body to
benefit charity .] By a will, the residue of an estate was left to 10 named ch
aritable
institutions and such other institutions as the executor selected or, at the dis
cretion of the
executor, the residue was to be paid to a person or body for the purpose of maki
ng gifts to the
10 named charities or others to be selected. Held: (1) Both gifts involved a gif
t for charitable
purposes. (2) The machinery provisions in the latter gift were not valid because
until the
property gets into the hands of institutions which are actually giving effect to
, or propose to
give effect to, charitable purposes, there is no vesting for the purposes of the
rule against
perpetuities. (3) The executor did have a wide discretion but there was a possib
ility of a fraud
on the power if the executor did not have regard to the purpose of benefitting a
number of
charities including the named 10. (4) The intention disclosed under the former g
ift may even
go further and require equality of division.
COSHOTT V ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
(1996) 40 NSWLR 446 (NSW Sup Ct, Hodgson J).
[17] (ii) Trusts Including Charitable and Non-charitable Purposes Special St
atutory
Provisions
304. Conveyancing Act 1919 (NSW), s 37D Composite expression embracing charit
able
and non-charitable purposes Gift for such order of nuns as trustees shall sele
ct Gift of
residue to be used as to income as well as capital arising on sale in provision
of amenities in
such convents as trustees shall select Non-charitable orders among "orders of
nuns" .]
A testator, who died in 1955, by will made in 1954, provided: "(3) As to my prop
erty known
as Èlmslea' ... upon trust for such Order of Nuns of the Catholic Church or the
Christian
Brothers as my executors and trustees shall select ... (5) As to all the rest an
d residue of my
estate both real and personal ... upon trust to use the income as well as the ca
pital to arise
from any sale thereof in the provision of amenities in such convents as my said
executors and
trustees shall select either by way of building a new convent ... or the alterat
ion of or addition
to existing buildings occupied as a convent or in the provision of furnishings i
n any such
convent or convents ... the receipt of the Reverend Mother ... of that particula
r order of nuns
or convent shall be a sufficient discharge ... for any payment under this clause
". It was not
disputed that the phrase "orders of nuns" was not used in its strict canonical s
ense, but
included also Congregations of Sisters, and among the orders were contemplative
orders,
which were not regarded as charitable in the legal sense of that word. By s 37D
of the
Conveyancing Act 1919: "(1) No trust shall be held invalid by reason that some
non-charitable and invalid purpose as well as some charitable purpose is or coul
d be deemed
to be included in any of the purposes to or for which an application of the trus
t funds or any
part thereof is by such trust directed or allowed". Held: (1) The gift in cl 5 w
as saved from
invalidity by s 37D of the Conveyancing Act. That section applied not only where
a testator
had expressly indicated alternative purposes, the one charitable and the other n
on-charitable
or not necessarily charitable, but applied also where, as here, the gift was for
a purpose
described in a composite expression embracing charitable and non-charitable purp
oses, for
both orders of nuns; the charitable and non-charitable active and contemplativ
e, the valid
and invalid were embraced in the single phrase "Orders of Nuns". The section,
which
applied alike to invalidity due to uncertainty or perpetuity, would apply where
the gift was
for an object so predominantly charitable such as an order of nuns that a ch
aritable
intention on the part of the testator could be fairly assumed, or for (say) bene
volent purposes,
which connoted charitable as well as non-charitable purposes. Not every expressi
on,
however, which might possibly justify a charitable application was brought withi
n the
section. (2) There were ample indications in this case to displace the prima fac
ie conclusion
that the gift in cl 3 was to the individual members of the selected order of nun
s or Christian
Brothers at the date of the testator's death so that they could together dispose
of it as they
thought fit. The dominant and sufficiently expressed intention of the testator w
as that the gift
in the clause was to be an endowment of the order or orders selected to be held
as an
endowment, and that, as the order or orders were according to their form perpetu
al the gift
must, if it was to a non-charitable order, fail. The gift made by cl 3 was, ther
efore, valid by
reason only of the provisions of s 37D of the Conveyancing Act, and the power of
selection
given by the clause to the trustees did not extend to contemplative orders of nu
ns.
[(1958) 32 ALJR 44; [1958] ALR 257 varied.]
LEAHY V A-G (NSW) (1959) 101 CLR 611; 33 ALJR 105; [1959] ALR 869; [1959] AC
457; [1959] 2 WLR 722; [1959] 2 All ER 300 (PC).
able
and non-charitable purposes Gift to be applied "in such manner and for such pu
rposes
relating to the work of" certain church as rector and church wardens should thin
k fit Gift
"for the benefit of any deserving female" of certain class "whose income does no
t for the
time being exceed" 200 per annum "in case of illness or otherwise as the Committe
e may in
its absolute discretion think fit" .] A testatrix devised realty to a trustee
upon trust to apply
it, the income and the proceeds of any lease, mortgage or sale "in such manner a
nd for such
purposes relating to the work of St John the Baptist Church of England at Ashfie
ld as the
Rector and Church Wardens for the time being of the said Church shall in their a
bsolute
discretion think fit". Held, that the gift was an absolute gift to an unincorpor
ated body for
defined purposes, and that, although the gift did not create a perpetuity and th
e
unincorporated body was clearly defined, since the purposes, as defined in the w
ill, for which
the gift might be applied, were so vague that portion of it might be used for no
n-charitable
purposes the gift would have been invalid but for the operation of s 37D of the
Conveyancing
Act 1919; that by virtue of that section the application of the gift was restric
ted to charitable
purposes and, therefore, that the gift was valid. The testatrix bequeathed her r
esiduary estate
to her trustee upon trust to pay the income to a committee to be applied "for th
e benefit of
any deserving female" of a certain class "whose income does not for the time bei
ng exceed"
200 per annum "in case of illness or otherwise as the Committee may in its absolu
te
discretion think fit". She then directed that "if in the opinion of my trustees"
the application
of the income for the purpose specified should become impossible, the capital an
d income
should be divided between certain institutions. Held, that the purpose specified
by the
testatrix was not charitable, that s 37D of the Conveyancing Act 1919 did not ap
ply to this
gift since the testatrix had specified a single purpose, the charitable and non-
charitable
elements of which could not be delimited, and therefore that the primary gift wa
s invalid; but
that the testatrix had intended that the gift over should take effect upon any f
ailure of the
primary gift and that, applying the rule in Jones v Westcomb ((1711) Prec Ch 316
), the
residuary estate should be divided amongst the institutions.
UNION TRUSTEE CO OF AUSTRALIA LTD V CHURCH OF ENGLAND PROPERTY
TRUST, DIOCESE OF SYDNEY (1946) 46 SR (NSW) 298; 63 WN 153 (NSW Sup Ct,
Nicholas CJ in Eq).
able
and non-charitable purposes.] A testatrix directed that five-twelfths of the r
esidue of her
estate be held upon trust for K fund, to be applicable to its general purposes.
When the will
was made there was in existence a body known as K fund which consisted of a volu
ntary
association for the purpose of raising money and applying it for purposes set ou
t in a
constitution which it had adopted. The objects were mainly charitable in the leg
al sense,
though some were merely philanthropic or benevolent. The association had disband
ed and
passed out of existence before the death of the testatrix. Held, that the case w
as
distinguishable from cases in which it had been held that a gift to an instituti
on which existed
at the time a will was made and passed out of existence before the death of the
testator
lapsed, because, first, K fund was merely a voluntary association and was not an
institution,
and, second, the testatrix had stated expressly, and had not merely left to impl
ication, that the
share of residue was to be applied for the general purposes of the fund. In so f
ar as the
objects of the fund were not charitable, s 37D of the Conveyancing Act 1919 appl
ied, and the
fund should be applied for such of the objects of K fund as were found to be cha
ritable.
PERPETUAL TRUSTEE CO (LTD) V KING GEORGE'S FUND FOR SAILORS (1949) 50
SR (NSW) 145; 67 WN 72 (NSW Sup Ct, Roper CJ in Eq).
307. Conveyancing Act 1919 (NSW), s 37D Gift for advancement of deserving
journalists .] A testatrix directed that part of a fund to be held on trust sh
ould be paid to
the proprietors of a newspaper for appropriation in their discretion for the adv
ancement of
deserving journalists but in such a manner as would perpetuate the name of her l
ate father, a
former editor of the newspaper. Held: (1) The gift was not an absolute gift to t
he proprietors
of the newspaper, the intention of the testatrix being to confer a benefit on a
class of persons
falling within the description "deserving journalists". (2) The gift was for unc
ertain objects
and tended to a perpetuity. No criterion was laid down as to the qualities which
would make
a journalist deserving. The class was indefinite in that the testatrix did not c
ontemplate a
benefit being conferred on a class of journalists in existence at her death or i
n existence at
the death of the life tenants to the exclusion in either event of all later memb
ers of the class.
(3) The gift was not for a charitable purpose, and being one in which a single p
urpose was
stated s 37D of the Conveyancing Act 1919 could not be availed of to constrain t
he scope of
the single purpose designated by the testatrix.
PERPETUAL TRUSTEE CO LTD V JOHN FAIRFAX & SONS PTY LTD (1959) 76 WN
(NSW) 226 (NSW Sup Ct, Else-Mitchell J).
308. Conveyancing Act 1919 (NSW), s 37D Gift for formation or advancement of
Catholic Boys' Club .] A testator directed that assets of his estate should be
applied for the
formation or advancement of a Catholic Boys' Club. Held: (1) The words used in t
he gift did
not connote a charitable purpose within the meaning or intention of the Charitab
le Uses Act
1601 (Imp) or one which fell within any of the four recognized classes of charit
able trusts.
(2) Section 37D of the Conveyancing Act 1919 was not applicable in the present c
ase where
the testator had named a single purpose.
[(1967) 87 WN (Pt 1) (NSW) 332 affd on these points.]
A-G (NSW) V CAHILL [1969] 1 NSWR 85 (NSW Sup Ct CA). [Discussed in article, 47 A
LJ
68.]
309. Property Law Act 1928 (Vic), s 131 Gift to establish a Catholic daily ne
wspaper .]
The testator bequeathed to the Roman Catholic Archbishop of Melbourne and othe
rs
specific personal property "as a nucleus to establish a Catholic daily newspaper
", and
provided that the income from that benefaction should be used "for Catholic educ
ation, or
any good object the Hierarchy may decide, until sufficient funds are in hand, to
found the
daily paper". After various other gifts, he bequeathed half the residue of the e
state to the
Hierarchy of the Roman Catholic Church "in addition to the bequest, already made
, to
establish a Catholic daily paper". The Supreme Court of Victoria held that the s
pecific gift
for the establishment of the newspaper involved or tended to a perpetuity, and c
ould not be
supported as a gift for a charitable purpose; that the specific gift being inval
id, the gift of the
intermediate income therefrom also failed; and that the gift of half the residue
was intended
for the establishment of a Catholic daily paper, and was for the same reasons in
valid. Upon
appeal to the High Court, Gavan Duffy CJ, Evatt and McTiernan JJ, were of opinio
n (1) that
the specific gift of personalty and the gift of half the residue were gifts for
a charitable
purpose, and therefore valid; and (2) that the gift of intermediate income was a
lso valid for
the same reason. Rich, Starke and Dixon JJ, were of opinion (1) that the gift fo
r the
establishment of a Catholic newspaper could not be supported as being for a char
itable
purpose, and consequently failed as tending to create a perpetuity, and fell int
o residue; (2)
that the gift of the intermediate income, being dependent on the gift of corpus,
failed with it;
(3) that the gift of half the residue was for the purpose of founding a Catholic
daily paper,
was not for a charitable purpose, and therefore failed; and (4) that none of the
se gifts was
saved by the application of s 131 of the Property Law Act 1928.
[[1934] VLR 22 affd.]
ROMAN CATHOLIC ARCHBISHOP OF MELBOURNE V LAWLOR (1934) 51 CLR 1; 8
ALJ 70; [1934] VLR 231; [1934] ALR 202 (HC).
310. Property Law Act 1928 (Vic), s 131 Trust for benefit of employees of com
pany .]
A company created a trust "to provide for individual personal benefits" for its
employees.
The income of the trust fund was to be used "for the relief of distress of any k
ind affecting
any employee or employees of the company such as want or suffering or embarrassm
ent
caused by poverty ill-health or misfortune of any sort occurring to or affecting
any employee.
Provided, however, that the above illustrations shall not be taken as limiting t
he discretion of
the committees hereinafter mentioned which committees shall have the right to di
stribute any
income in any manner which they shall consider to be for the individual personal
benefit of
any employee or employees". The trust provisions could be altered if the alterat
ion were
approved "as being calculated to benefit the employees of the company". In the e
vent of the
company's being wound up or selling its business the trust was deemed completed
and the
fund reverted to the company. Held, that the trust was void by reason of its inf
ringing the rule
against perpetuities and that no part of it was saved by s 131 of the Property L
aw Act 1928.
RE JOHN DANKS & SON PTY LTD'S SETTLEMENT; CLIFTON-JONES V WALDON
[1942] VLR 215; [1942] ALR 304 (Vic Sup Ct, Mann CJ).
311. Property Law Act 1928 (Vic), s 131 Trust entirely undefined and uncertai
n as to
subject matter .] A testator directed that the balance of his residuary estate
should be held
on trust and, subject to a life interest, should be distributed among legatees.
The will
concluded "The balance of my real and personal estate I give to my trustee and e
xecutor to be
disposed of by him as he may deem best". Evidence was given of a conversation in
dicating
that it was in the testator's contemplation that churches and charitable organiz
ations should
benefit by this gift. Held: (1) The testator intended the executor to take the u
ltimate residue
on trust and not as a gift. (2) The trust was void for uncertainty and was not s
aved by the
Property Law Act 1928 s 131. (3) There was a resulting trust of such residue to
the next of
kin of the testator.
RE HOLLOLE [1945] VLR 295; [1946] ALR 78 (Vic Sup Ct, O'Bryan J). [Discussed in
note,
21 ALJ 20.]
312. Property Law Act 1928 (Vic), s 131 Gift for "charitable institutions or
other public
bodies" .] A testator left his residuary estate "upon trust for such charitabl
e institutions or
other public bodies in such shares as my trustee shall declare he being acquaint
ed with my
desires and wishes". Held, that s 131 of the Property Law Act 1928 applied, and
the residuary
gift was a valid charitable bequest, and that the words "he being acquainted wit
h my desires
and wishes" were merely explanatory, and did not fetter the trustee's discretion
or reserve to
the testator any power to control the distribution of the estate by non-testamen
tary means.
RE THUREAU; MITCHELL V HOLLAND [1948] 2 ALR 487 (Vic Sup Ct, Herring CJ).
313. Property Law Act 1928 (Vic), s 131 Gift for "charitable or benevolent in
stitutions" .]
In Victoria the common understanding of the term "benevolent institution" woul
d not
include any institution whose objects were not charitable in the legal sense. An
d even if a gift
to "charitable or benevolent institutions" would otherwise be invalid for uncert
ainty, it would
be saved by s 131 of the Property Law Act 1928.
[1949] VLR 133; [1949] ALR 545 (Vic Sup Ct, Fullagar J). [Discussed in note, 23
ALJ 604.]
314. Property Law Act 1928 (Vic), s 131 Gift to specified branch of Navy Leag
ue Sea
Cadets .] A testator bequeathed to trustees the income from property "for the
Navy League
Sea Cadets Geelong Branch or any youth welfare organization male or female as in
their
wisdom they deem fit". Held, that the gift to the Navy League Sea Cadets was a c
haritable
gift, but that the gift to "any other youth welfare organization" was void for u
ncertainty; the
former gift was, and the latter gift was not, saved by s 131 of the Property Law
Act 1928.
RE BELCHER [1950] VLR 11; [1950] ALR 138 (Vic Sup Ct, Fullagar J).
315. Property Law Act 1928 (Vic), s 131 Maintenance of sanctuary .] A testa
tor
directed his trustees to hold his property upon the following trusts: "(a) For t
he benefit of the
public of Australia to preserve animals (being mammals) and birds indigenous to
Australia
but particularly to Victoria, and the indigenous flora that provides cover food
and general
conditions suitable for the life habits and preservation of such animals and bir
ds. (b) To
foster support and improve, both for scientific and educational purposes, educat
ion
knowledge and research in the origin history habits life and use and the scienti
fic benefits (if
any) of the mammals birds and flora specified in (a) and the relationship of one
or more to
the other. (c) To contribute to the funds of any University or School or any soc
iety institution
or corporation which encourages teaches or endeavours to carry into effect the s
pread of any
one or more of the above objects and/or the practical application thereof. (d) T
o contribute to
the maintenance and improvement of any sanctuary under the Game Act 1928 (Victor
ia) or
land subject to the provisions of the Wild Flowers and Native Plants Protection
Act 1928
(Victoria). (e) To pay for work done or services rendered in connection with any
one or more
of the objects of the trust. (f) To grant prizes or rewards: (i) To any person
or persons who
is or are prosecuting or has or have prosecuted the study of any one or more of
the objects of
the trust; (ii) To any person or persons who in the opinion of my trustees is or
are qualified to
act as an Òbserver' or Òbservers'. (g) All proper costs charges commission and
expenses of
and incidental to administration and management of the trust shall be first defr
ayed by the
trustees out of income and subject to such payments the yearly income shall be a
pplied by
the trustees in furtherance of the objects of the trust in such manner as the tr
ustees shall
deem expedient. (h) The trustees shall have power to receive any additional dona
tions
subscriptions or endowments for the general purposes of the Trust. They may also
receive
donations subscriptions or endowments for any special purpose connected with the
objects of
the trust not inconsistent with or calculated to impede the due working of the p
rovisions of
the same". Held: (1) The trust in cl (a) being confined to the preservation of a
nimals and
birds in such circumstances and in such manner as would be beneficial to the pub
lic was a
valid charitable trust. (2) The trust in cl (b) was wholly charitable. (3) In so
far as cl (c)
referred to any university or school its purposes were charitable, and the effec
t of the
Property Law Act 1928, s 131, was to delete from the clause the words "or any so
ciety
institution or corporation". (4) The trust in cl (d) was not charitable and the
effect of s 131 of
the Property Law Act was to delete it from the will. (5) Clauses (e), (f) and (g
) should be
construed as limited to the preceding valid charitable purposes and operated acc
ordingly. (6)
Clause (h) had no effect upon the rights of the trustees except in so far as it
might impliedly
prohibit them from receiving certain kinds of donations, subscriptions or endowm
ents.
RE INGRAM [1951] VLR 424; [1951] ALR 900 (Vic Sup Ct, Smith J). [Discussed in no
te,
25 ALJ 697.]
316. Property Law Act 1928 (Vic), s 131 Gift to memorial symphony orchestra .
] A
testatrix gave the net income of her residuary estate to her sister for life and
upon trust after
her death to divide the net income into five equal shares. One share was given t
o "the Zelman
Memorial Symphony Orchestra ... for so long as such orchestra shall in the opini
on of my
trustees for the time being remain a properly constituted body actively engaged
in the playing
of orchestral music ...". The orchestra was formed into a company and most but n
ot all its
objects were charitable, the last object being "(p) To do all such lawful things
as are in the
opinion of the company or the executive incidental or conducive to the attainmen
t of the
above objects, or any of them". Held, that the objects of the company and in par
ticular cl (p)
allowed the application of its property to non-charitable purposes and therefore
the company
was not a charity, but the gift to it was valid notwithstanding that the income
was payable
beyond the limitation of the rule against perpetuities, because of the operation
of s 131 of the
Property Law Act 1928.
TRUSTEES EXECUTORS & AGENCY CO LTD V ZELMAN MEMORIAL SYMPHONY
ORCHESTRA LTD; RE LLOYD [1958] VR 523; [1958] ALR 1042 (Vic Sup Ct, Dean J).
317. Property Law Act 1958 (Vic), s 131 Discretion of trustee to apply to one
or more
purposes Composite expression of particular purpose embracing charitable and
non-charitable elements .] The operation of s 131 of the Property Law Act 1958
where a
trustee has a discretion to apply the trust fund to any one or more of several s
tated purposes
and in specifying one or more of the purposes a composite expression is used com
prehending
within it charitable and non-charitable elements which can be discerned and can
be
separated, considered.
513; 2 ATR 472; 71 ATC 4164; [1971] AEGR 66,067(HC). [Discussed in note, 9 U QLJ
118.]
318. Property Law Act 1958 (Vic), s 131 Gift to Anti-Vivisection Society .]
A testator
directed his trustees to hold the residue of his estate in trust, in perpetuity,
and to divide the
income into ten equal parts and pay them to named organizations which included t
he
Anti-Vivisection Society. Held, that the Anti-Vivisection Society was not a char
itable
institution because its leading object was to secure the abolition of vivisectio
n by demanding
its prohibition by law. This did not fall within any head of charity. Section 13
1 of the
Property Law Act 1958 did not apply to save the gift to any extent, and it lapse
d.
and in
note, 39 ALJ 237.]
319. Property Law Act 1958 (Vic), s 131 Devise on trust for benefit of ex-mem
bers of
armed forces "in genuine need of financial assistance" .] The testatrix gave h
er estate to
her trustee upon trust after the death of an annuitant to apply a third of the e
state "at the
discretion of my trustee for the benefit of an ex-member or ex-members of the Au
stralian
Army, Naval or Air Forces to be selected by my trustee in his absolute discretio
n. And I
direct my trustee that in making such selection as aforesaid he shall have regar
d to the
following matters: (i) The selected ex-member or ex-members of the Australian Ar
my, Naval
or Air Forces shall be a protestant of Scottish or British descent; (ii) The sel
ected ex-member
or ex-members of the Australian Army, Naval or Air Forces shall in the opinion o
f my trustee
be in genuine need of financial assistance, and in particular shall or may requi
re such
assistance in order to pay a balance of purchase money owing on his or their hom
e or farm
property or to repay a mortgage on such home or farm property". Held: (1) The do
minant
intention of the gift was to relieve poverty and the language of the gift would
embrace cases
of poverty. (2) The element of public benefit necessary for a valid charitable g
ift was present.
(3) The language of the gift would embrace cases other than those of poverty and
went
beyond relief of poverty in a charitable sense. (4) In so far as the purpose of
the gift was
non-charitable it was invalid because the power given to the trustee by the will
purported to
authorize him to benefit persons who were too numerous and too widely dispersed
to be
ascertainable. (5) The expression "in genuine need of financial assistance" clea
rly indicated a
charitable intention and the gift was saved from invalidity by s 131 of the Prop
erty Law Act
1958.
RE GILLESPIE [1965] VR 402 (Vic Sup Ct, Little J). [Discussed in note, 39 ALJ 23
7.]
320. Property Law Act 1958 (Vic), s 131 Gift for monuments and beautification
of public
reserve .] A testator bequeathed the residue of his estate for the erection of
monuments
over the graves of his parents and grandparents and for the erection of a cairn
to
commemorate the first settlement of his pioneer ancestors at Natimuk, and the ba
lance of his
estate and income for the upkeep of the monuments and cairn and "the beautificat
ion of
Natimuk Lake and foreshore and the development of same as beauty spot and touris
t resort".
Held: (1) Neither the erection of the monuments and cairn nor their upkeep was a
valid
charitable purpose, but "the beautification of Natimuk Lake and foreshore and th
e
development of same as beauty spot and tourist resort" was. (2) The intention of
the testator
was that some of the income should be applied to each of the purposes in the wil
l. (3) The
operation of s 131(2) of the Property Law Act 1958 is not limited to the case wh
ere there is a
discretion to apply the whole income to a valid charitable purpose contained in
a trust to the
disregard of invalid purposes and the subsection applied to make the gift of res
idue for the
purpose of "the beautification of Lake Natimuk, etc, " a valid and effective cha
ritable gift.
RE SPEHR [1965] VR 770 (Vic Sup Ct, Gowans J). [Discussed in article, 47 ALJ 68.
]
321. Property Law Act 1958 (Vic), s 131 Trust to distribute partly among desc
endant of
testatrix and specified school and direction to accumulate balance in perpetuity
.] A
testatrix created a trust in favour of a charitable object and "my grandchildren
and their
descendants" and apportioned some income between those objects but then directed
an
accumulation without object. Held: (1) The inclusion in the beneficiaries of "de
scendants"
could not be limited to children and therefore the gift was perpetual and the be
neficial
interest of those entitled from the grandchildren was void. (2) Section 131 of t
he Property
Law Act 1958 (Vic) operates to save from invalidity a trust where the non-charit
able purpose
intermingled with the charitable purpose is a trust the purpose of which is to b
enefit
individual persons. (3) The direction to accumulate was not saved by the Perpetu
ities and
Accumulations Act 1968, s 19, as there was no direction as to its disposition. (
4) In any event
the fact that the direction to accumulate was without purpose or object meant th
at the trust
was not exclusively for charitable purposes and s 131 of the Property Law Act di
d not apply
to sever the accumulation, because it was without purpose or object. (5) Since t
here was no
general charitable intention the charitable trust failed for impracticability.
EQUITY TRUSTEES EXECUTORS & AGENCY CO LTD V EPSTEIN [1984] VR 577
(Vic Sup Ct, Kaye J).
322. Trusts Act 1915 (Vic), s 79 Successive charitable and non-charitable pur
poses
Gift "to the blind and their children" .] A will contained the following claus
e: "I will
devise and bequeath all my other properties to be disposed of and given to the b
lind and their
children". Held: (1) There was a gift to the blind and an independent gift to th
eir children. (2)
A gift "to the blind" simpliciter is a good charitable gift. (3) Even if the gif
t to the children of
the blind were not charitable the gift to the blind was validated by the Trusts
Act 1915, s 79.
RE BOND; BRENNAN V A-G (VIC) [1929] VLR 333; (1929) 35 ALR 300 (Vic Sup Ct,
Cussen J). [Discussed in note, 3 ALJ 263.]
323. Trusts Act 1915 (Vic), s 79 Alternative charitable and non-charitable pu
rposes
Power to appoint to "other persons than near relatives and/or charitable institu
tions or
organizations" .] A testatrix left her estate to trustees "in trust to be dist
ributed by them in
their absolute discretion and judgment as follows: Three-fourths ... amongst m
y near
relatives and one-fourth amongst other persons than my said near relatives and/o
r charitable
institutions or organizations". Held, that the gift of one-fourth of the estate,
though otherwise
void for uncertainty, was by virtue of s 79 of the Trusts Act 1915 saved quoad t
he charitable
institutions and charitable organizations amongst which, accordingly, the truste
es might
appoint, the word "charitable" governing both "institutions" and "organizations"
.
RE GRIFFITHS; GRIFFITHS V GRIFFITHS [1926] VLR 212; (1926) 47 ALT 171; 32 ALR
197 (Vic Sup Ct, Mann J).
324. Trustee Act 1936 (SA) Gift to establish foundation to support "Christian
work
activity projects or other recognized Welfare Programmes" .] A testator gave h
is residuary
estate to his trustee to create a "foundation" and empowered the trustee to esta
blish and
control the foundation "to support Christian work activity projects or other rec
ognised
Welfare Programmes such as those organised under the Methodist Church of Austral
asia the
Australian Council of Churches or the United Nations Organisation or their affil
iates". Held,
that all the projects or programmes so referred to were not within the preamble
to the statute
43 Eliz. I c. 4, but as some were within it s 69a (1) of the Trustee Act 1936,
applied to
empower the trustees to support only such projects and programmes which were cha
ritable
within the spirit and intendment of the statute.
In the Estate of COLE (1980) 25 SASR 489 (SA Sup Ct, Mitchell J).
325. Trustees Act 1962 (WA) Trust to distribute among public education instit
utions,
public bodies with specified main objects, public medical services and specified
schools .]
In his will a testator desired that charitable institutions mentioned should as
far as possible
receive his residuary estate which he directed be held upon trust to distribute
the net income,
in such proportions and manner as his trustees in their discretion should think
fit, "between
the institutions and bodies (except any public hospital within the meaning of th
e Hospital Act
1927) in respect of which at the date of my death any gift devise bequest or leg
acy is exempt
from duty under section 134 of the Administration Act 1903-1956 or any Act amend
ing or
re-enacting the same". At the testator's death s 134(1) of the Administration Ac
t 1903 (WA),
exempted from duty gifts to or in trust for "(a) any public hospital within the
meaning of the
Hospitals Act 1927; (b) the maintenance of a free ward in any hospital; (c) any
public
educational institution in the State which is wholly or in part dependent on any
State grant,
aid, or subsidy; (d) any incorporated public body in the State the main object o
f which is to
dispense or provide voluntary aid to indigent, aged, sick, blind, halt, deaf, du
mb, or maimed
persons; (e) any publicly subscribed medical service or fund in the State, the m
ain object of
which is the relief of the sick, or any public medical service or fund in the St
ate which is
assisted by any Government grant or subsidy; (f) any school which pursuant to th
e provisions
of the Education Act 1928, is included in the latest list of schools published i
n the Gazette
that have been inspected and found efficient or have been certified to be effici
ent for the
purposes of that Act". Held: (1)(a) Section 134(1)(b) of the Administration Act
could not
properly be regarded as specifying an "institution or body" in respect of which
a gift is
exempt from duty; (b) institutions or bodies which at the testator's death answe
red the
descriptions of paras (c), (d), (e) or (f) of s 134(1) were not necessarily excl
usively
charitable, in that it is possible that there could be included in para (f) scho
ols which could
not be regarded as existing for charitable purposes and in that there was no evi
dence to show
whether there was in Western Australia any institution which answered the descri
ption
contained in paras (d) or (e) and yet was not charitable because it had a non-ch
aritable object
which although not its main object was not merely incidental or ancillary to a c
haritable
object. If it were not for s 102 of the Trustees Act 1962, it would be necessary
to remit the
matter to the Supreme Court to take further evidence. (2) If some of the institu
tions and
bodies were not charitable, there was an "imperfect trust provision" within the
meaning of
that expression in s 102 of the Trustees Act (which defines the expression to me
an "any trust
under which some non-charitable and invalid as well as some charitable purpose o
r purposes
is or are or could be deemed to be included in any of the purposes to or for whi
ch an
application of the trust property, or any part thereof, is by the trust directed
or allowed") and
that section would apply and would confine the power of the trustees to make a s
election to
such institutions and bodies as are charitable.
[[1970] WAR 143 affd.]
STRATTON V SIMPSON (1970) 125 CLR 138; 44 ALJR 487; [1971] ALR 117 (HC).
[Discussed in article, 47 ALJ 68.]
557. Property Law Act 1958 (Vic), s 131 Gift for "such Christian organisation
s and
societies" as trustee selects Class gift Uncertainty .] A will provided fo
r one-half of
the residuary estate to be divided, subject to certain pecuniary legacies, betwe
en "such
Christian organisations and societies in such manner as my said trustee shall in
his absolute
discretion think fit". The executor sought a determination whether the gift was
a valid
testamentary disposition. Held: (1) To be valid, the gift must take effect as a
discretionary
class gift or as a valid purpose trust. (2) The gift could not take effect as a
discretionary class
gift because the requisite certainty of object was lacking. The power of selecti
on was a
power in the nature of a trust, but the "class" from which the selection was to
be made was
insufficiently defined. (3) The gift was not valid as a charitable purpose trust
, apart from the
Property Law Act 1958 (Vic), s 131. A gift to "Christian" institutions or purpos
es is not
confined to institutions or purposes that are wholly charitable. Nor was such a
gift to be
equated with a gift to "religious" institutions or purposes which might be saved
by the rule of
construction which would confine the gift to such religious institutions or purp
oses as were
wholly charitable. (4) Section 131 can apply to a trust expressed, not in terms
of purposes,
but in favour of organizations and societies. Section 131 does not require that
in every case
the distributable class be predominantly charitable. It is sufficient if there w
as found a
"distinct or sufficient indication" of an intention to benefit charity. In this
case the relevant
class might be "predominantly charitable" but, if it were not, there was nonethe
less a
"distinct or sufficient indication" of an intention to benefit charity and so s
131 was
applicable. The gift was saved by s 131, by virtue of which it would be read dow
n to limit
selection from among only those Christian organizations and societies that were
charitable in
the legal sense.
MCCRACKEN V A-G (VIC) [1995] 1 VR 67 (Vic Sup Ct, Phillips J).
558. Trusts Act 1973 (Q), s 104 Gift to organisations ... "working for elimin
ation of war"
... "raising standard of life" .] A will provided that the residuary estate wa
s to be held by
the trustee to be distributed at his discretion among organisations that are "wo
rking for the
elimination of war" and organisations "formed for the purposes of raising the st
andard of life
throughout the world". Held: (1) A trust for the elimination of war was within t
he spirit and
intendment of the Statute of Elizabeth I and thus a valid charitable gift. (2) T
he trust for
raising the standard of life throughout the world did not raise clear charitable
objects. (3) The
Trusts Act 1973 (Q), s 104, was applicable where a gift was for a purpose descri
bed by a
compendious expression which was apt to include both charitable and non-charitab
le
purposes, provided that the expression used significantly indicated a charitable
intention on
the testator's part. (4) A gift for the purpose of raising the standard of life
throughout the
world lacked any such indication and was therefore incapable of validation by s
104.
RE BLYTH [1997] 2 Qd R 567 (Q Sup Ct, Thomas J).
[18] C. Property Subject to Charitable Trust
326. Uncertainty .] A testator bequeathed his residuary estate to his trustee
"upon trust to
convert any part into money, after consultation with my son ..., which may be de
emed
expedient and after payment of my just debts, funeral and testamentary expenses
and to use
the proceeds for distribution among any benevolent or charitable institutions ..
. which may
appear to my trustees to be worthy and deserving. The limit to be twenty-five po
unds to any
one object and the aggregate not more than two hundred pounds in any one year".
Held, that
certainty as to the property made subject to the trust is just as essential to t
he validity of a
charitable trust as to the validity of a trust for individual persons. Nothing w
as given except
the proceeds of an entirely discretionary conversion, and therefore the gift fai
led.
327. Uncertainty Trust to apply money "for such charitable purposes and bequ
ests to
such of my relations as my trustee may think proper" Duty of trustee .] A te
stator
declared the following trust: "As to the same moneys stocks funds debentures and
securities
and the annual income thenceforth to become due for the same upon trust to apply
the same
for such charitable purposes and bequests to such of my relations as my trustee
may think
proper". Held, that the trust was not void for uncertainty and that the trustee
was empowered
and it was its duty to apply at its discretion a portion of the trust fund for t
he benefit of
charitable objects, and a portion thereof for the benefit of such relations, suc
h respective
portions to be determined by the trustee at its discretion.
RE GREEN; EQUITY TRUSTEES EXECUTORS & AGENCY CO LTD V GREEN [1942]
VLR 210; [1942] ALR 323 (Vic Sup Ct, Mann CJ).
328. Gift for charitable and non-charitable objects Apportionment Failure b
y trustee to
apportion .] By a home-made will a testator authorized an unnamed person to gi
ve to a
named church "some money for masses for me and my parents and sister and brother
and
brother-in-law and Lilly Gilbert out of the moneys still due to me and if any le
ft to be given
to" two named persons. Held, that, applying the principle that when trustees are
given a
discretion to apportion property between charitable and non-charitable objects a
nd do not
exercise the discretion, the trust does not fail and the court will make the app
ortionment and
in the absence of any other proper principle of apportionment will divide the pr
operty equally
between the two classes of objects, the distributable money of the testator shou
ld be divided
into moieties, one of which should be given to the proper representative of the
named church
and the other should be equally divided between the two persons named in the wil
l.
J).
559. Property held for purposes of church Substantial departure from standard
liturgy in
church service Breach of trust .] Held, that where it is a fundamental rule
of a church
that liturgy should be celebrated in a particular way, and property is held for
the purposes of
that church, any substantial departure from the standard liturgy in a service ca
n constitute a
breach of charitable trust.
[Affd by (1989) 18 NSWLR 291; 16 IPR 619.]
A-G (NSW) (EX REL ELISHA) V HOLY APOSTOLIC & CATHOLIC CHURCH OF THE
EAST (ASSYRIAN) AUSTRALIA NSW PARISH ASSOCIATION (1989) 37 NSWLR 293;
95 FLR 392; 14 IPR 609; 98 ALR 327 (NSW Sup Ct, Young J).
[19] D. Trustees
329. Whether essential to validity of trust that it be carried out by designate
d persons
Implementation partly at disposition of private individuals .] Land was acquir
ed by
Brisbane City Council from trustees for the Mount Gravatt Agricultural, Horticul
tural and
Industrial Association, the main function of which was to operate a showground o
n the land
and to hold a district show there each year. The land had been offered by the as
sociation, and
accepted by the Council, on the terms of a letter of the Town Clerk to one of th
e trustees, the
relevant provisions of which were: "(a) The area to be set apart permanently for
Showground,
park and recreation purposes; (b) The Show Ring to be levelled off; (c) The Show
Society
[that is, the association] to be granted the exclusive use of the Ground without
charge for a
period of two weeks in each and every year, for the purposes of and in connectio
n with the
District Annual Show". Held: (1) The terms of para (a) of the letter, stating th
at the area was
to be set apart permanently for specified purposes, were entirely appropriate fo
r, and only
consistent with, an intention to create a trust binding the land in the Council'
s ownership. (2)
The main purpose included in "showground purposes" in para (a) of the letter was
the
promotion of agriculture, and, as such, a charitable purpose within the fourth c
lass of
charitable purposes defined in Income Tax Special Purposes Commissioners v Pemse
l [1891]
AC 531, as a trust beneficial to the community within the spirit and intendment
of the
preamble to the 43 Eliz I c 4 (Imp). (3) The validity of the trusts under para (
a) of the letter as
charitable trusts was not impaired by a provision which permitted the trusts to
be
implemented, in part, by being placed at the disposition of private individuals.
A valid
charitable trust had accordingly been created.
ussed
d persons
Incompetency of trustee .] The residue of the estate of a testator was given,
after a life
estate, "for the Kytherian Association of Queensland upon trust for the erection
and/or
benefit of a Sanatorium and/or Hospital" in a foreign country. The estate includ
ed realty in
Queensland. The Kytherian Association of Queensland was an unincorporated associ
ation
and was not competent to hold the residue as trustee. Held: (1) The administrati
on of the trust
by the association named in the will was not the main or essential object of the
trust and the
incompetency of the association to act did not invalidate it. (2) The fact that
the trust was to
be carried out in a foreign country was not a bar to the settlement of a scheme
by the court.
d persons
Death of co-trustee .] A testator bequeathed money to two of his sons and dire
cted that it
should "constitute a fund in their hands to subsidise the preaching of the Gospe
l of Our Lord
Jesus Christ as they in their wisdom are led by Him but without any restrictions
as to the
mode in which it shall be managed and expended or the person or persons to whom
it shall
be paid so long as they see it is used to enable the Gospel to be preached indep
endently of the
recognised Churches". One of the sons died before steps had been taken to distri
bute the
money. Held, that the bequest constituted a valid charitable trust for the preac
hing of the
Gospel, and that the means envisaged by the testator for achieving the purpose,
namely that
the two sons should agree upon subsidizing some mode of preaching the Gospel
independently of the recognized churches, was not an essential element of the tr
ust.
332. Refusal of designated person to carry out trust .] By will a spinster, E
P, who died in
1941, gave the balance of her residuary estate "for the Church of England in the
Diocese of
Adelaide, absolutely for the benefit of the Sunday School Council and a Diocesan
Church of
England Hospital in equal shares". Her sister, GP, who died in 1958, by will mad
e in the
same year, gave her residuary estate "for the Synod of the Church of England in
the Diocese
of Adelaide Incorporated for the fund to establish and/or maintain a Church of E
ngland
Hospital absolutely". Another sister, VP, died in 1963, and by will made in 1962
gave her
residuary estate in similar terms to the gift contained in the will of her siste
r GP; but her will
contained additional provisions that it was her wish that the Synod should estab
lish and
maintain such hospital for medical surgical and midwifery purposes, and she dire
cted her
trustee to obtain a written undertaking from the Synod that the funds would be u
sed for that
purpose. The Synod, having considered the bequests, resolved that it was not pre
pared to use
the funds for the establishment of a general church hospital and that there was
no reasonable
prospect, at the date of the death of each testatrix, that the respective funds
could either alone
or together have been used for that purpose at any time in the future. Held: (1)
The case was
one in which it was of the essence of the trusts that the trustee selected by th
e testatrices
should act as the trustee of the trusts, and if that trustee could not or would
not undertake the
office the trusts must fail. Accordingly, the resolution of the Synod was conclu
sive of the
question whether the trusts were practicable. (2) The fund referred to in the wi
lls of GP and
VP was the fund intended to be established under the trust in the will of EP. (3
) In the case of
each will there was a general charitable intention to benefit the sick in some m
anner under
the auspices or supervision of the Church of England, and schemes should be sett
led for the
application of the gifts accordingly.
EXECUTOR TRUSTEE & AGENCY CO OF SA LTD V WARBEY [NO 2] (1973) 6 SASR
336 (SA Sup Ct, Bray CJ).
[20] E. Superstitious Uses and Roman Catholic Relief Act
333. Statute of Chantries 1 Edw. VI c 14 .] Held, that the Imperial Statute
(1 Edw VI c
14) is not in force in the Australian States and consequently a gift for masses
for the repose
of the soul of a particular person is not a gift for a superstitious use. Such a
gift is charitable,
and therefore is not void as a perpetuity.
[[1917] VLR 112 revd.]
NELAN V DOWNES (1917) 23 CLR 546; 23 ALR 354; sub nom IN THE WILL OF
CHILDS; NELAN V DOWNES [1917] VLR 621 (HC).
334. Gift for masses .] A legacy for masses is not void in New South Wales as
a
superstitious use.
RE KEENAN; FORD V KEENAN (1913) 30 WN (NSW) 214 (NSW Sup Ct, Simpson CJ in
Eq). [Discussed in note, 12 ALJ 468.]
335. Gift for masses .] A gift for saying masses is a valid charitable gift.
J).
336. Gift for masses .] A testator gave his estate, including a property, to
his son "subject
to the following conditions", and after making provision for his widow and for i
nsurance of
the property, the will continued: "My executors also will make provision that on
e mass shall
be said for the repose of my soul [in a certain church] once every week until th
ey hand over
the property to my son, when he attains the age of thirty years, when he shall t
ake the place
of the executors and have the masses said weekly for ever, and these are the con
ditions I
make". Held, that the direction in the will to make provision for the masses cre
ated a valid
charitable trust and that in effect it imposed a charge upon the property.
THOMSON V WHITTARD (1925) 25 SR (NSW) 430; 42 WN 132 (NSW Sup Ct, Long
Innes J).
337. Gift for masses .] A bequest to a Roman Catholic priest for masses for t
he testator's
soul is not void as being for a superstitious use. The Statute 1 Edw VI c 14 (Im
p), being an
Act passed in the interests of the Reforming Church, could not reasonably be app
lied to the
colony of New South Wales at the time of the passing of 9 Geo IV c 83, and is, t
herefore, not
in force in Victoria.
In the Will of PURCELL (1895) 21 VLR 249; 17 ALT 67; 1 ALR 57 (Vic Sup Ct, Hodge
s, J).
338. Gift for masses Marshalling assets in favour of charitable gift .] A
will included
the following words: "I want 300 for masses to be said and sent from time to time
to
monasteries and priests (see file hanging up in wardrobe). Also remember to have
some
masses said for my dear father, mother and darling sister Mary as well as myself
... My
brother TMB can pay for those masses out of his rents as he thinks fit ... It ma
y take two
years to have them all said or more but do not forget my dear people. Have noven
a of masses
said at Sacred Heart Monastery Kensington Sydney also St. Joseph's Oxford Park B
risbane".
Held, that the will created a good precatory trust for the performance of masses
, but no
charge upon the realty in respect of such trust. The effective part of a will wa
s in the
following words: "I want 500 to be paid out of my estate for masses to be said by
priests and
monasteries from time to time" Held, that the will created a good precatory trus
t. In order to
obviate the expense of settling a scheme, the court directed that the times and
places of the
performance of masses provided for by both trusts should be left in the discreti
on of the
common executor of both wills. Held, further, that a gift for masses is a good c
haritable gift,
and that in Queensland assets may be marshalled in favour of such a gift.
RE BYRNE'S WILL; BYRNE V BYRNE [1938] QSR 346 (Q Sup Ct FC). [Discussed in
note, 12 ALJ 299.]
339. Roman Catholic Relief Act Application to archbishoprics established afte
r passing
of Act .] A testator left his residuary estate "upon trust for his Grace the A
rchbishop of
Sydney, his successors and assigns", and to be disposed of by him in the distric
t of B, as he or
they shall direct. There was no protestant archbishop. Held, that the gift faile
d as a charitable
gift from its uncertainty, and that the bequest was, therefore void. Section 24
of the Roman
Catholic Relief Act 1830 (NSW) did not apply to archbishoprics not established a
t the
passing of the Act and therefore, the bequest was void on that account; and it c
ould not be
construed as a gift to the Roman Catholic Archbishop personally.
SMITH V KEARNEY (1881) 2 LR (NSW) Eq 49; Tarl 40 (NSW Sup Ct FC).
340. Roman Catholic Relief Act Gift for religious orders all over world .]
The testator
devised to the Abbot of Mount Malleray, Ireland, or his successors for the time
being, land in
New South Wales, to be held by him and his successors in trust for the religious
order of
Cistercians, and in the event of those monks not accepting this offer, he devise
d the land to
the Prior of the Redemptorist Fathers, of Waratah, NSW, or to his successors for
the time
being, to be held in trust for the monks of the religious order of our Holy Rede
emer. The
testator also ordered that the same property could never be sold, and must alway
s remain the
property of the Roman Catholic Church. Held, that the Roman Catholic Relief Act
1830
(NSW) (assuming that the provisions of the Roman Catholic Relief Act, 10 Geo IV
c 7
(Imp), for the suppression of Roman Catholic religious orders, were thereby made
applicable
to the colony of New South Wales), did not prevent the court from giving effect
to the
devise, the testator not having indicated that the land was to be used for the b
enefit of the
religious orders in New South Wales, but intending that it should be held on tru
st for the
benefit of the orders all over the world.
341. Roman Catholic Relief Act Gift for benefit of Order of Franciscan Friars
.] A
testator gave a share of his residuary estate "to the Reverend the Commissary fo
r the time
being of the Franciscan Fathers, Waverely, for the benefit of the Order of Franc
iscan Friars,
Waverely, as such Commissary should think fit". Held, that the gift was a gift t
o such
Commissary on trust to be applied for the purposes of the Order of Franciscan Fr
iars at
Waverley, and that the gift was not invalid as being contrary to the Act, 10 Geo
IV No 9, or
as being a gift upon trust for non-charitable purposes or otherwise. Section 28
of the Roman
Catholic Relief Act 1829 (10 Geo IV c 7; adopted by 10 Geo IV No 9) does not ma
ke gifts to
Jesuits and members of other religious orders, communities or societies of the C
hurch of
Rome bound by monastic or religious vows void in New South Wales; nor does s 33
of that
Act make the admission of any Jesuit or member of any such religious order, comm
unity or
society to become a regular ecclesiastic or brother or member thereof illegal in
New South
Wales.
PERPETUAL TRUSTEE CO (LTD) V WITTSCHEIBE (1940) 40 SR (NSW) 501; 57 WN
166 (NSW Sup Ct, Williams J). [Discussed in note, 14 ALJ 317.]
[21] F. Rule against Perpetuities
342. Relevant date of modern rule Date of devotion of property to trust .]
Held, that
the relevant date for the application of the modern rule against perpetuities to
charitable
trusts is the date upon which the trust property becomes devoted to the charitab
le purpose,
not the date upon which the property will vest in the persons chosen as the mean
s of giving
effect to that purpose, and accordingly a trust for poor relations was not to ar
ise only when
the poor relations were ascertained but when a contingency of having no survivin
g
grandchildren occurred and the trust did not offend the rule against perpetuitie
s.
343. Immediate gift Power of postponement and accumulation .] By para (3) o
f her
will a testatrix directed her trustee (a) to purchase and properly equip a home
for the purpose
of the maintenance and care of or for otherwise mercifully and kindly dealing wi
th homeless
stray and unwanted animals, and (b) to invest the balance and apply the income t
hereof for
the permanent upkeep including wages of the home. By para (4) the testatrix empo
wered the
trustee to postpone the carrying out of these trusts for such period as should b
e necessary in
order to accumulate a fund sufficient in the opinion of the trustee to carry the
m out, and for
this purpose to capitalize the net income of the estate during the period of pos
tponement. By
para (5) she empowered her trustee to postpone the realization of the estate for
such period as
it in its discretion should think fit. Held, that the estate was given immediate
ly to charity, and
hence there was no violation of the rule against perpetuities in para (4) or (5)
. Also, para (4)
did not authorize an accumulation beyond the period permitted by the Thellusson
Act
legislation of South Australia.
[[1963] SASR 173 affd.]
344. Immediate gift To municipal corporation for erection of hall for meeting
s of cultural
or educational value .] A testator directed his trustees to pay the residue of
his estate "to
the Corporation of the City of Launceston to be held by the said Corporation as
a nucleus of a
fund to provide a suitable hall or theatre for the holding of concerts to provid
e music for the
citizens of the city and for the production of drama entertainments and the hold
ing of
meetings of a cultural or educational value". He directed that "the Corporation
of the said
City of Launceston in disposing of the said moneys shall be the sole judge as to
whether the
objects to which they are applying this bequest are within the terms of the gift
I being
confident that the Corporation will use this money to the best advantage and app
ly the same
in accordance with my wishes so far as the circumstances at the time enable them
". Held: (1)
The gift was a gift for the purpose of providing a hall and was a valid charitab
le gift. (2) If
and so far as the direction making the Corporation the sole judge as to whether
the objects to
which the bequest was being applied purported to make it the sole judge regardin
g the
purposes for which the hall was to be used, it was void as an attempted ouster o
f the
jurisdiction of the court. (3) The gift was an immediate charitable gift, and th
e use of the
word "nucleus" did not import into a gift a condition precedent suspending the o
peration of
the gift indefinitely so that it would be bad for remoteness. Accordingly, the n
ext of kin had
no interest in the residue unless it was found impracticable to carry into execu
tion the trust,
or unless there was a surplus after the trust had been executed.
MONDS V STACKHOUSE (1948) 77 CLR 232; 23 ALJ 62; [1949] ALR 299 (HC).
345. Immediate gift Direction to pay off incumbrances and then over to charit
y .] A
testator directed that after the payment of bequests, the revenue of his propert
y should be
devoted to the payment of any incumbrance to the erection of shops, and that the
succeeding
revenue should be paid to charities. Held, that although more than 91 years woul
d elapse
before the revenue of the property could pay off the incumbrances and build the
shops, the
testator's directions were given merely to show the manner in which he desired t
he charities
to benefit, and that the gift might be treated as an immediate gift to the chari
ties, and was not
void under the rule against perpetuities.
RE PODMORE; UNION TRUSTEE CO V DAWBORN (1899) 6 ALR 7 (Vic Sup Ct,
a'Beckett J).
346. Immediate gift Condition subsequent Gift to build church in particular
position .]
A gift "to the trustees of the Presbyterian Church at Sale" to be applied (wit
hout any
limitation of time) in building a church, but solely on condition that it should
be built in a
particular position on a particular piece of ground, with a proviso that otherwi
se the gift shall
lapse into the residue, is a good bequest to a charity. The condition is not a c
ondition
precedent.
347. Immediate gift Particular application taking effect in future General
charitable
intent .] A testator bequeathed his residuary estate upon trust "for distribut
ion among any
benevolent or charitable institutions ... which may appear to my trustees to be
worthy and
deserving. The limit to be twenty-five pounds to any one object and the aggregat
e not more
than two hundred pounds in any one year". Held, that if the gift were otherwise
valid, the rule
against perpetuities would not operate to invalidate it. The purposes were state
d so generally
that a general charitable intent was manifest, and the gift would not be rendere
d invalid by
the fact that the particular application directed could not immediately take eff
ect, or would
not of necessity take effect within any definite limit of time, and might never
take effect at
all.
348. Accumulations Direction to accumulate for excessive period Right of ch
arity to
stop accumulation and demand immediate payment .] Where a fund is directed to
be
accumulated for a period in excess of that permitted by law and the accumulation
s have
become sufficient to pay legacies charged upon the fund and accumulations, the r
esiduary
beneficiary, a charity, is entitled to direct payment of the legacies (whether v
ested or
contingent) out of the accumulations and may thereupon elect to stop the accumul
ation under
the rule in Wharton v. Masterman ([1895] AC 186), on the basis that the accumul
ations must
inevitably be devoted to the ultimate charitable purpose.
RE WALSH (1964) 82 WN (Pt 1) (NSW) 231 (NSW Sup Ct, Jacobs J).
349. Accumulations Requirement of accumulation of income to specified amount
.] A
testator gave his estate "upon trust to accumulate the net income arising theref
rom and to
invest the same until the value of my personal estate and the said accumulations
of income
shall have reached the sum of 6,500 ... and thereupon to assign and transfer the
said
personal estate accumulations and investments to the trustee of the will of my w
ife in
exchange for [identified] properties ... And I declare that my trustee shall sta
nd possessed of
the net income arising from the said properties (which said properties and incom
e are
hereinafter referred to as the said trust fund') and from any other investments
and moneys
which under the provisions hereinafter contained shall fall into and form part o
f the said trust
fund and of the income arising from my personal estate of the value of 6,500 unti
l the
exchange hereinbefore mentioned has been carried out. Upon trust subject to the
last
preceding clause to divide the same into 16 equal parts and to pay one of such p
arts to each
of the following [16 named public charities]. And I declare that if the trustee
of the will of
my said wife shall refuse to make the exchange hereinbefore set forth my trustee
shall stand
possessed of the income arising from my said personal estate of the value of 6,50
0. Upon
trust to divide the same in the manner hereinbefore directed with regard to the
income from
the said trust fund". Held, that the gift to the charities was conditional upon
the accumulation
of the 6,500, and, as that sum might not be reached within the period allowed by
the rule
against perpetuities, the gift offended against that rule and was void.
RE FINKELSTEIN; NATIONAL TRUSTEES, ETC, CO OF A/ASIA LTD V MICHAEL
[1926] VLR 240; (1926) 48 ALT 25; 32 ALR 200 (Vic Sup Ct FC).
350. Gift conditional upon future uncertain event .] If a gift in trust for c
harity is itself
conditional upon a future and uncertain event, it is subject to the same rules a
nd principles as
any other estate depending for its coming into existence upon a condition preced
ent.
351. Gift conditional upon future uncertain event Disposal of surplus upon d
issolution of
accident fund .] In 1889 the employees of a company agreed to form an accident
fund for
the relief of any disabled by accidents befalling them in the discharge of their
duties. The
rules provided that all employees should pay to the fund weekly contributions, a
nd that
should it become necessary to dissolve the fund, then any amount in hand should
be
distributed amongst Sydney charities as determined by the then subscribers. Ther
e was no
rule providing for the alteration of rules. On 19 July 1903, the then subscriber
s unanimously
resolved that of the money in hand 1,000 should be distributed among the subscrib
ers to the
fund on 31 October 1903, on the basis of subscriptions paid during the currency
of the fund
before that date. Held, that the fund was not a charity and that the ultimate gi
ft over was
therefore void as infringing the rule against perpetuities.
DOUST V A-G (NSW) (1904) 4 SR (NSW) 577; 21 WN 198 (NSW Sup Ct, Simpson CJ in
Eq).
352. Gift conditional upon future uncertain event Discretion of trustees to
use gift for
primary purpose and gift over to charity of unexpended balance Discretion to b
e exercised
after perpetuity period Primary gift invalid Validity of gift over .] A te
stator gave
the residue of his estate upon trust to divide the net income among his brothers
and sisters,
the share of any brother or sister dying to be divided equally among the survivo
rs or paid to
the sole survivor, and directed his trustees upon the death of the last survivor
to pay to each
of his nieces who might then be alive and unmarried 52 per annum as long as such
niece
was alive and unmarried, and to pay the balance of the income from the residuary
estate to
the trustees of the National Art Gallery (NSW), and, upon the death or marriage
of the last
surviving niece his trustees should hold this residuary estate and income upon t
rust to erect a
carillon at such place on the foreshores of Sydney Harbour as his trustees might
deem
expedient, or to join with any other person in erecting such carillon, and in re
gard to any
unexpended balance and should his trustees not deem it advisable or practicable
to erect or to
join in erecting such carillon, in regard to the whole of his residuary estate,
he directed his
trustees to stand possessed thereof upon trust for the National Art Gallery (NSW
). Held: (1)
The purported trust to erect the carillon was not a charitable trust, nor was it
for the benefit
of any ascertainable cestui que trust or within the exceptional class of "monume
nt cases",
and therefore it was void. The gift of the unexpended balance failed with the tr
ust to erect the
carillon. (2) The discretion purported to be given to the trustees was exercisab
le at a time
beyond the period allowed for vesting by the rule against perpetuities, and ther
efore, both the
trust in favour of the carillon purpose and the alternate trust in favour of the
trustees of the
National Art Gallery would fail for remoteness, insofar as they depended upon th
e exercise
of that discretion. (3) Inasmuch as the trust for the carillon purpose was void,
the trustees had
no discretion and were bound to hold the whole fund, subject to the interests of
the brothers,
sisters and nieces, upon trust for the trustees of the National Art Gallery, who
se interest was
therefore vested in remainder as from the death of the testator and so unaffecte
d by the rule
against perpetuities. (4) The gift to the trustees of the National Art Gallery o
f the balance of
the intermediate income created a valid gift in remainder.
353. Gift conditional upon future uncertain event Gift that may not take eff
ect in
perpetuity period Trust of income to maintain orchestra No orchestra existin
g .] By
an indenture of trust, which recited that the settlor had donated 10,000 to assis
t in founding
a fund for establishing and maintaining a metropolitan permanent orchestra in Vi
ctoria, it
was declared that the trustee should hold the sum upon trust to apply the income
towards the
maintenance of a metropolitan orchestra. At the date of the deed such an orchest
ra did not
exist, and the sum of 10,000 was altogether insufficient to establish and maintai
n one. Held,
that the settlement infringed the rule against perpetuities, and there was a res
ulting trust for
the settlor.
RE DYER; DYER V TRUSTEES, EXECUTORS & AGENCY CO LTD [1935] VLR 273;
[1935] ALR 384 (Vic Sup Ct FC). [Discussed in note, 9 ALJ 228.]
354. Gift conditional upon future uncertain event Upon future naming of buil
ding .] A
testator gave the income of specified properties to named charitable institution
s for 21 years,
and directed that upon the expiration of 21 years the properties should be sold
and the
proceeds paid over to the institutions, for the purpose of erecting such buildin
gs as they
should deem expedient and that such buildings as should be erected should be nam
ed the
"Benzion, Ben Aaron, Solomon and Sarah Cohen Memorial". The testator further dir
ected
that "the naming of such buildings ... shall be a condition precedent to the pay
ment of the
said proceeds to the said institutions". Held, that the testator's condition as
to the naming of
the buildings was a condition precedent to the vesting in interest of the gifts
of corpus to the
institutions, and since such vesting could take place after the expiration of 21
years from the
testator's death the gifts of corpus were void for remoteness.
RE KAGAN (DECEASED) [1966] VR 538 (Vic Sup Ct FC).
355. Gift conditional upon future uncertain event Reversion of land and righ
t of re-entry
.] Land was transferred to a municipal corporation "subject nevertheless to an
d upon this
express condition that the said piece of land shall at all times hereafter be ma
intained and
used as a site for a Garden Park or Reserve for the use of the public or for Mun
icipal Markets
or other similar purposes for the transaction of the business of a public Market
or other
similar business of the City of Fitzroy or other the Municipal Corporation by wh
atever name
it may be designated within which the said land shall for the time being be situ
ate", but if the
land was not so used for three years, then at the expiration of such period the
interest so
transferred was to cease and the land was to revert to the transferor or his suc
cessors who
could thereupon re-enter. Questions arose whether the City of Fitzroy held the l
and subject to
any of the conditions or restrictions contained in the transfer. Held: (1) The w
ords in the
transfer created a valid charitable trust for the period of the gift whatever th
at period was and
whether perpetual or limited, and not merely a condition subsequent. (2) The rig
ht of re-entry
contained in the transfer infringed the rule against perpetuities and was void.
(3) The
charitable trust was unaffected by the invalidity of the right of re-entry and b
ound the
municipality.
RE SMITH [1967] VR 341; (1966) 18 LGRA 403 (Vic Sup Ct, Menhennitt J).
356. Gift conditional upon future uncertain event Gift for assistance in tra
velling to and
from foreign country .] A testator bequeathed a sum to and between such Assyri
ans as
shall be living in Tasmania and shall desire to return to Syria, the sum to be u
sed for
travelling expenses. Held, that the bequest was void for uncertainty and also be
cause it
infringed the rule against perpetuities.
RE HANNAH'S WILL; SHIELDS V A-G (TAS) (1939) 34 Tas LR 45 (Tas Sup Ct, Hutchins
J).
357. Gift conditional upon future uncertain event Gift over to charity depen
dent on prior
limitation void for remoteness .] A testatrix, after dividing the income of he
r estate
between her son and daughter during their respective lives, directed her trustee
s, on the death
of her son or daughter leaving issue, to hold one-half of the fund to pay it and
the income to
children of the deceased son or daughter who should attain 25 absolutely, and if
more than
one, in equal shares as tenants in common, and to pay the income of the other ha
lf to the
survivor of the children, and upon the death of such survivor, to pay the remain
ing half to any
children of such survivor absolutely. The trustees might apply any income to whi
ch any
minor would, if of full age, be entitled, towards his or her maintenance, educat
ion or benefit.
The trustees could also apply any part not exceeding one moiety of a grandchild'
s share for
his or her advancement. Provisions were then made for default of issue, in which
case all
property was to go towards the relief of destitute children in Queensland. The s
on died
leaving a child surviving. Held: (1) The gift to the children of the deceased so
n was void
under the rule against perpetuities, because the gift did not vest until the att
ainment by the
children of 25. (2) The provisions of the will with respect to maintenance and a
dvancement
only conferred a power upon the trustees, and did not operate to make vested a g
ift which
was otherwise contingent. (3) The limitation to the charities was a limitation d
epending on or
expectant upon a prior limitation, which was void for remoteness, and was, there
fore, itself
void.
RE ZAHEL; NICOLL V QUEENSLAND TRUSTEES LTD [1931] QSR 1 (Q Sup Ct FC).
358. Gift conditional upon future uncertain event .] A testator, who died on
12 June 1888,
gave a life interest in property to his widow and "After my wife's death I beque
ath to my
niece Maud Sarah Bullen ... the sum of 50 per year, also five per cent for collec
ting rents ...
That the property shall never be sold, but all overplus of rents shall be placed
in a sinking
fund, and distributed amongst my nephews and nieces once every five years at the
rate of
sixty per centum ... As my nephews and nieces die out their share shall go to al
l surviving
nephews and nieces". On the death of all nephews and nieces the funds should go
to Sunday
Schools. An originating summons was issued raising questions whether any of the
gifts were
void as infringing the rule against perpetuities or for uncertainty. The summons
was referred
to the Full Court. Held: (1) The bequest to Maud Sarah Bullen was valid as it wa
s not
uncertain, and did not infringe the rule against perpetuities; the testator inte
nded that all
nephews and nieces to be ascertained on each division of rents should be entitle
d to share in
the rents, and therefore, the gift was void for remoteness. (2) As the limitatio
n to the
nephews and nieces was void for remoteness, the gift over to the charities was a
lso invalid.
RE BULLEN; BOWMAN V BOWMAN (1915) 17 WALR 73 (WA Sup Ct FC).
359. Gift for non-charitable purpose Trust to provide benefit to employees .]
An
incorporated trading company set aside money to be held by trustees to provide i
ndividual
personal benefits, allowances and provisions to persons who had been, were, or m
ight
become its employees. It was contemplated by the trust instrument that employees
might
make contributions to the fund. No period was fixed for the duration of the trus
ts, nor was
any distinction drawn in the instrument between employees who were in needy or a
ffluent
circumstances. Voting power was given to members subject to the votes varying ac
cording to
the amount of salary received. The deed also provided that the fund was not to b
e regarded as
relieving members from the duty of making provision for those dependent on them.
Held: (1)
The trust was in favour of a fluctuating body of individuals and not an apprecia
bly important
class of the community, and that the trust was not a valid charitable gift. (2)
Accordingly, it
was void on the ground of perpetuity. A gift to a comparatively restricted class
may be
upheld as a charitable gift when it is apparent that its purpose is eleemosynary
, while a
somewhat similar class may be regarded as a fluctuating body of individuals in t
he absence
of such a purpose and the gift, accordingly, would not be a charitable gift. It
is a question of
fact in each case whether the gift is or is not charitable.
RE HARRIS SCARFE LTD [1935] SASR 433 (SA Sup Ct, Napier J).
360. Gift to non-charitable association Direction that land shall not be sold
.] The
material parts of a will were: "I devise to the Trustees of Masonic Lodge, Morni
ngside ...
their successors and assigns all the land ... [describing it] ... And I request
that the said
property shall not be sold but shall be used for the purpose of building a lodge
room and hall
thereon and generally to promote the welfare of the members of the said lodge an
d their
successors". Held, that the gift created a trust, and, the lodge being a volunta
ry association,
and the object not being charitable, was void as of perpetuity.
QUEENSLAND TRUSTEES LTD V WOODWARD [1912] QSR 291 (Q Sup Ct FC).
361. Application of rule Administration of funds carried out in foreign count
ry .] A
testator directed his residuary trust funds to be remitted to T, a German nation
al, at Lewin, in
Germany, his executors and administrators, and the parish priest for the time be
ing at Lewin,
and the police magistrate for the time being at that place, and directed those p
ersons to
expend specified portions of the funds in the purchase of a farm at Lewin, the e
rection of a
farm-house and stables and outhouses thereon, the purchase of farming implements
, the
purchase of land and the erection thereon of a flour-mill with proper machinery,
and the
erection of a hotel at the same place. The purchase and equipment of the farm, f
lour-mill,
and hotel were to be completed within seven years of his death, and on their com
pletion they
were to be leased for 50 years, and the rents and profits expended in the upkeep
and repair of
all buildings in Germany directed to be built by his will. Held, that, the funds
being payable
in Queensland, the bequests were valid according to Queensland law, and that alt
hough the
rule against perpetuities might have operated to render them or some of them inv
alid if the
administration of the funds was to be carried out in Queensland, that rule appli
ed locally and
did not affect an administration to be carried out in a foreign country; but tha
t without
information concerning the practicability and legality in Germany of such admini
stration the
court would not finally determine the matter.
[1922] QSR 252(Q Sup Ct FC).
[22] G. Other Matters
362. Voluntary conveyance Effect of subsequent conveyance to purchaser for va
lue .]
A voluntary conveyance of freeholds in favour of a charity is not avoided under
the statute 27
Eliz I c 4, by a subsequent conveyance to a purchaser for value.
[(1890) 11 LR (NSW) Eq 199; 7 WN 42 affd.]
RAMSAY V GILCHRIST (1892) 9 WN (NSW) 9; [1892] AC 412; 61 LJPC 72; 66 LT 806;
56 JP 711 (PC).
363. Statute of Mortmain To what wills applicable Will of domiciled Victori
an .]
The Mortmain Act 1888 (Imp) which consolidates the Mortmain Acts, and in effect
prohibits
the gift of money by English wills to be invested in land in England for charita
ble purposes,
does not apply to colonial wills. Therefore, where a domiciled Victorian by will
gave money
to an English corporation for the purchase of land in England for charitable pur
poses, Held,
following the rule in Whicker v Hume (7 HL Cases 124), that the gift was governe
d wholly
by the laws of Victoria, and, being valid by that law, bound the executors to pa
y the legacy to
the corporation.
[(1892) 19 VLR 302; 15 ALT 43 revd.]
MAYOR, ETC, OF CANTERBURY V WYBURN [1895] AC 89; (1895) 64 LJPC 36; 71 LT
554; 11 TLR 30; 43 WR 430; 11 R 331 (PC).
364. Special statutory provisions Queensland Religious, Educational and Cha
ritable
Institutions Act 1861 To what gifts applicable Gifts to part of religious bo
dy .]
Section 3 of the Act of 1861 "to facilitate the incorporation of religious, educ
ational, and
charitable institutions", which requires that every gift, testamentary or otherw
ise, to a
corporation shall be attested by three witnesses and registered one month before
the death of
the giver, applies to a bequest in favour of a particular congregation which is
part of a larger
ecclesiastical body, though the gift is to trustees other than the trustees of c
orporation of that
body. Every gift to a constituent part, as tending to increase the resources of
the whole, must
be held to be a gift to the whole.
[(1894) 6 QLJ 44 affd.]
MCSWAINE V LASCELLES [1895] AC 618; (1895) 64 LJPC 182; 73 LT 33; 11 R 548
(PC).
ritable
Institutions Act 1861 Registration of charitable bequests .] A testator bequ
eathed a
legacy to the treasurer of the Wharf Street Baptist Church, and the Queensland B
aptist
Association was appointed residuary legatee. Those institutions were incorporate
d under the
Religious Educational and Charitable Institutions Act 1861. The will was atteste
d by two
witnesses, but not registered. Held, without considering the effect of fewer wit
nesses than
three, that registration was a condition precedent to the validity of such beque
sts, and that
they must fail.
Re the Will of SWAN (1892) 4 QLJ 171 (Q Sup Ct FC).
ritable
Institutions Act 1861 Gift to church body not incorporated under Act .] Gift
s were
made to trustees for the benefit of some congregations which formed integral par
ts of a
voluntary association, the Church of England in Queensland. This association was
not
incorporated under the Religious Educational and Charitable Institutions Act 186
1, but was
incorporated under the Act, as the governing body of the whole church. Held: (1)
The gifts
were not made to an institution incorporated under the Act, and that s 3 thereof
was
inapplicable. (2) The gifts were not made in favour of the Church of England, or
of the
Synod, but were charitable gifts in favour of unincorporated religious bodies, a
nd were
therefore valid.
RE PEATTIE; KING V A-G (Q) [1910] QSR 276 (Q Sup Ct FC).
ritable
Institutions Act 1861 Attestation .] A testator left property to trustees fo
r the repairing,
enlarging or improvement of the Episcopalian Church at Ipswich called St Paul's
Church,
which was erected on land granted by the Crown to the Corporation of the Synod o
f the
Diocese of Brisbane, in the name of which a certificate of title had been issued
. St Paul's
Church was not incorporated. The will was witnessed by only two witnesses, and h
ad not
been registered. Held, that the gift was invalid.
A-G (Q) V WILSON [1909] QWN 3 (Q Sup Ct FC).
ritable
Institutions Act 1861.] A testator directed his trustees to divide his residua
ry estate into
five equal parts, and pay one part to the Corporation of the Synod of the Dioces
e of Brisbane
for the benefit of the Church of England in Maryborough. The will was attested b
y two
witnesses and was not registered under the Religious Educational and Charitable
Institutions
Act 1861. The Church of England in Queensland was a voluntary association; and i
n 1868 a
governing body for the management of the affairs of the church, consisting of th
e bishop, the
clergy, and delegates of the laity, was created by consensual compact. Among the
powers
conferred upon this governing body (Synod) was to hold, in trust for the church,
property
which the whole church or any of the congregations might acquire. There were tru
stees on
behalf of the Synod to whom property might be conveyed. In 1870, officers of the
Synod
were incorporated by letters patent under the Religious Educational and Charitab
le
Institutions Act 1861 by the name of the Corporation of the Synod of the Diocese
of
Brisbane. By the Church of England Act 1895 these letters patent were dissolved,
and the
Synod of the Diocese of Brisbane was constituted a corporation. By that Act, the
property of
the old was vested in the new corporation, and it was declared by s 5 that all w
ills relating to
any property or affecting any rights or interests therein, and giving a right to
or against any
person in which the name of the old corporation appeared, should be construed as
if the
name of the new corporation appeared therein. Held: (1) The gift to the Corporat
ion of the
Synod for the benefit of the Church of England in Maryborough was invalid under
the
Religious Educational and Charitable Institutions Act 1861, s 3. (2) Neither the
Religious
Educational and Charitable Institutions Act 1861 Amendment Act 1895, s 3 nor the
Church
of England Act 1895, s 5 operated to validate that gift.
RE TRAVIS; MANT V A-G (Q) [1911] QSR 216 (Q Sup Ct FC).
[23] Divn 3. Conditions and Gifts Over
369. Condition precedent Gift to charity conditioned on accumulation .] If
a gift in
trust for charity is itself conditional upon a future and uncertain event, it is
subject to the
same rules and principles as any other estate depending for its coming into exis
tence upon a
condition precedent.
370. Condition precedent Gift conditional on naming of building .] A testat
or gave the
income of specified properties to named charitable institutions for 21 years, an
d directed that
upon the expiration of 21 years the properties should be sold and the proceeds p
aid over to
the institutions, for the purpose of erecting such buildings as they should deem
expedient and
that such buildings as should be erected should be named the "Benzion, Ben Aaron
, Solomon
and Sarah Cohen Memorial". The testator further directed that "the naming of suc
h buildings
... shall be a condition precedent to the payment of the said proceeds to the sa
id institutions".
Held, that the testator's condition as to the naming of the buildings was a cond
ition precedent
to the vesting in interest of the gifts of corpus to the institutions, and since
such vesting could
take place after the expiration of 21 years from the testator's death the gifts
of corpus were
void for remoteness.
RE KAGAN (DECEASED) [1966] VR 538 (Vic Sup Ct FC).
371. Condition subsequent That gift avoided if application made to vary trust
s .] A
testatrix gave her residuary estate to trustees on trust to convert and divide i
t into three equal
shares and transfer the shares to trustees for three charitable institutions, th
e shares to be held
by the respective trustees as a permanent endowment for the institutions and the
income only
to be applied for their support. The testatrix prescribed the number and method
of election of
the trustees and directed that, if any of the institutions should make any appli
cation to
Parliament or to the court to vary the trusts of the will declared in favour of
the institutions
respectively, the trusts thereby declared in favour of the institution making su
ch application
should be void, and the share given to or for the benefit of that institution sh
ould belong to
her next of kin in the proportions prescribed by the Statutes of Distribution. H
eld, that the
gifts to the charities were absolute gifts defeasible by a condition subsequent
which might
not occur within perpetuity limits; and that the gift over consequently failed.
RE BAILLIE; FAITHFUL V SYDNEY INDUSTRIAL BLIND INSTITUTION (1907) 7 SR
(NSW) 265; 24 WN 60 (NSW Sup Ct, Simpson CJ in Eq).
372. Condition subsequent Gift to charity on condition for upkeep of cemetery
.] The
testator devised to the Abbot of Mount Malleray, Ireland, or his successors for
the time
being, land in New South Wales, to be held by him and his successors in trust fo
r the
religious order of Cistercians, and in the event of the monks not accepting this
offer, the
testator devised the land to the Prior of the Redemptorist Fathers, of Waratah,
NSW, or to his
successors for the time being, to be held in trust for the monks of the religiou
s order of our
Holy Redeemer. The testator also ordered that the same property could never be s
old, and
must always remain the property of the Roman Catholic Church; and, further, in
consideration of the above bequest, he ordered that the cemetery upon the land b
e kept in
order, and that a sum be expended annually on the vault and walks. Held: (1) The
gift to the
Cistercian order was not, but the gift to the Redemptorist order was, a good cha
ritable trust.
(2) The direction to keep the cemetery in order was a mere condition annexed to
the gift, and
not a trust attached to the property, that if the gift to the Cistercian order h
ad been valid the
condition would have been good, as it would not have tended to a perpetuity; but
that as
attached to the gift to the Redemptorist order the condition was void, as it wou
ld have the
effect of entitling the next of kin to the property in an event which might be t
oo remote.
373. Condition subsequent Gift to build church in particular position .] A
gift "to the
trustees of the Presbyterian Church at Sale" to be applied (without any limitati
on of time) in
building a church, but solely on condition that it should be built in a particul
ar position on a
particular piece of ground, with a proviso that otherwise the gift shall lapse i
nto the residue,
is a good bequest to a charity. The condition is not a condition precedent.
374. Condition subsequent Gift for charitable purposes on condition that trus
t void if
particular man employed by church .] A condition attached to a legacy to churc
h missions
providing that if a certain man, a curate, "be employed by or hold orders in the
... Church" the
legacy "shall be void and of no effect" is not contrary to public policy.
IN THE WILL OF RICE; TURNER V RICE [1920] VLR 44; (1919) 41 ALT 114; 26 ALR 10
(Vic Sup Ct, Hood J).
375. Condition subsequent Gift to Deaconesses' Home On condition of its con
tinuance
for charitable and religious purposes .] A testator gave the income from a sha
re of his
residuary estate to "the Presiding Sister for the time being of the Church of En
gland
Deaconesses' Home at Sale for so long as the Order of Deaconesses at Sale contin
ues to exist
as a charitable and religious organization, such income to be dealt with by such
Presiding
Sister entirely at her own discretion and free from any control by the Bishop of
Sale or any
other ecclesiastical authority". The work carried on by the deaconesses was reli
gious and
charitable and, by their constitution, they were subject to control as to tempor
al matters by
the ecclesiastical authorities, but it did not appear how far the authorities ha
d exercised such
control. Held: (1) The gift was to persons in succession as presiding sisters of
the
organization, that the Presiding Sister's discretion was limited to dealing with
the income
within the charitable and religious purposes with which the deaconesses' work wa
s
concerned, and that the bequest was a good charitable gift for so long as the or
ganization
continued to exist as a charitable and religious organization. (2) Although the
ecclesiastical
authorities might make it impossible for the Presiding Sister to apply the money
entirely at
her own discretion, the trustees were not bound to inquire as to this.
RE A'BECKETT; ALLARD V LAMBERT [1941] VLR 283; [1941] ALR 332 (Vic Sup Ct,
Gavan Duffy J).
376. Condition subsequent Gift on condition masses said .] A testator, who
was parish
priest at Sandgate, bequeathed his household effects and library to his successo
r or
successors for the time being as priests in charge of the Sandgate parish, for t
heir use, on
condition that they remembered him daily at the altar, and said masses for the r
epose of his
soul. Held, that the condition was valid.
377. Primary trust for non-charitable object Rule of construction where gift
over on
contingency .] Held: (1) The testator's requirements that a small area of subu
rban land
near the sea coast should be made accessible to birds and that there should be f
ood and water
for them did not come within the principles on which trusts for the benefit of a
nimals were
held charitable, and was void. (2) A trust could not be treated as one in favour
of the Royal
Society for the Prevention of Cruelty to Animals independently of the conditions
on which
the Society took, and was invalid. (3) The failure of the trust in favour of the
Royal Society
for the Prevention of Cruelty to Animals involved the failure of a trust by way
of gift over in
favour of the Benevolent Society.
[(1958) 76 WN (NSW) 299 affd.]
ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, NEW SOUTH
WALES V BENEVOLENT SOCIETY OF NEW SOUTH WALES (1960) 102 CLR 629; 33
ALJR 435; [1960] ALR 223 (HC).
over on
contingency Gift of unascertainable surplus .] A testator gave the residue
of his estate
upon trust to divide the net income among his brothers and sisters, the share of
any brother or
sister dying to be divided equally among the survivors or to be paid to the sole
survivor, and,
upon the death of the last survivor, to pay to each of his nieces who might then
be alive and
unmarried 52 per annum as long as such niece was alive and unmarried, and to pay
the
balance of the income from the residuary estate to the trustees of the National
Art Gallery
(NSW). He further directed that upon the death or marriage of the last surviving
niece his
trustees should hold this residuary estate and income upon trust to erect a cari
llon at such
place on the foreshores of Sydney Harbour as his trustees might deem expedient,
or to join
with any other person in erecting such carillon, and in regard to any unexpended
balance and
should his trustees not deem it advisable or practicable to erect or to join in
erecting such
carillon, in regard to the whole of his residuary estate, he directed his truste
es to stand
possessed thereof upon trust for the National Art Gallery (NSW). Held: (1) The p
urported
trust to erect the carillon was not a charitable trust, nor was it for the benef
it of any
ascertainable cestui que trust or within the exceptional class of "monument case
s", and
therefore it was void. The gift of the unexpended balance failed with the trust
to erect the
carillon. (2) The discretion purported to be given to the trustees was exercisab
le at a time
beyond the period allowed for vesting by the rule against perpetuities, and ther
efore, both the
trust in favour of the carillon purpose and the alternate trust in favour of the
trustees of the
National Art Gallery would fail for remoteness, in so far as they depended upon
the exercise
of that discretion. (3) Inasmuch as the trust for the carillon purpose was void,
the trustees had
no discretion and were bound to hold the whole fund, subject to the interests of
the brothers,
sisters and nieces, upon trust for the trustees of the National Art Gallery, who
se interest was
therefore vested in remainder as from the death of the testator and so unaffecte
d by the rule
against perpetuities. (4) The gift to the trustees of the National Art Gallery o
f the balance of
the intermediate income created a valid gift in remainder.
over on
contingency Gift of unascertainable surplus Gift to charity Validity .]
A
testatrix gave the residue of her estate upon trust for conversion and directed
that it be
expended on the erection in a cemetery of a monument (with minute directions as
to its
nature and surroundings) to the memory of her deceased son, and a sum to be paid
to the
proper person for the perpetual care of the ground. After other directions the w
ill continued,
"I direct that any money left unexpended after the erection and completion of th
e said
monument to be paid to the treasurer of the Children's Hospital, Camperdown". He
ld, that the
special rule in the class of cases known as the "Tomb cases" applied, and, there
fore, the
primary gifts for the erection of the monument and for the perpetual care of the
ground
having failed, the whole of the residuary fund was applicable to the defendant c
harity.
POOLEY V ROYAL ALEXANDRA HOSPITAL FOR CHILDREN (1932) 32 SR (NSW)
459; 49 WN 156 (NSW Sup Ct, Long Innes J).
380. Primary trust for non-charitable object Gift to charity of balance of es
tate after
provision for upkeep of graves .] A testatrix gave the residue of her estate t
o the
Presbyterian Church of Queensland to be applied: "as to the balance of my estate
then
remaining after making provision for such annual sum as the Committee of Managem
ent of
the ... Church at Warwick shall consider to be sufficient to maintain in first c
lass order the
graves of my father, mother, sister and myself in the Warwick Cemetery such main
tenance to
be the responsibility of the said Committee of Management, to use the same and t
he income
arising therefrom for such purposes as the Session and Committee of Management s
hall from
time to time determine in connection with the maintenance and improvements of th
e interior
of the Presbyterian Church at Warwick". Held, that the provision in the will for
the upkeep of
the graves imposed no more than a moral obligation, and as the latter part of th
e gift was a
good charitable trust for the maintenance and improvement of the fabric of the c
hurch, the
whole of the capital and income of the balance of the estate referred to in the
will was
applicable for that charitable purpose.
381. Effect Gift to "be kept at interest" .] A testatrix, after making bequ
ests, provided
that "the residue is to be paid to the Home Mission Extension Fund of the Cong C
hurch and
the other to the London Missionary Society to be kept at interest". Held, that t
he words "to be
kept at interest" attached a condition, and although the corpus could be transfe
rred to, only
the income of the residue could be used by, the charities.
RE TURNER; ELDER'S TRUSTEE & EXECUTOR CO LTD V MORIALTA
PROTESTANT CHILDREN'S HOMES INC [1930] SASR 223 (SA Sup Ct, Richards J).
382. Extinguishment of condition Hospitals and Charities Act 1922 (Vic) Gif
t over
from one incorporated charity to another upon failure to observe condition Rig
ht of
second charity to sell its contingent interest thereby extinguishing condition .
] A testator
devised land in trust for an incorporated charity, and committed to it the maint
enance and
repair of his family vault, and directed that, upon failure to comply with this
request, the land
should pass to another incorporated charity. The original donee having maintaine
d the repair
of the vault for 24 years succeeding the testator's death entered into an agreem
ent with the
donee under the gift over, by which agreement the later donee, for a small monet
ary
consideration, sold and transferred its entire interest to the original donee. H
eld, that by
virtue of the Hospitals and Charities Act 1922, ss 49, 71(3), the charity had po
wer to so sell
its contingent interest, and that the effect of the transaction was to extinguis
h the condition
relating to the maintenance of the vault.
RE EMERY; BENDIGO GOLD DISTRICT GENERAL HOSPITAL V SANDHURST &
NORTHERN DISTRICT TRUSTEES, ETC CO LTD (1928) 34 ALR 167 (Vic Sup Ct,
McArthur J). [Discussed in note, 2 ALJ 93.]
[24-29] Divn 4. When Applied Cy-Pres
Settlement of schemes see [33].
[24] A. Generally
383. General principles .] It is convenient to summarize the relevant legal p
rinciples as
established by the authorities. They are: 1. A trust or gift in order to be char
itable in the legal
sense must be for the benefit of the public or a considerable section of the pub
lic. To this rule
there is an exception which cannot be referred to any principle, that a trust or
gift for the
relief of poverty may be charitable even though it is limited to some aggregate
of individuals
ascertained by reference to some personal tie. 2. Benefit to the public is not i
n itself
sufficient to render a trust charitable; the purpose of the trust must fall with
in the spirit and
intendment of the preamble to the Statute of Elizabeth (43 Eliz I c 4); and ever
y purpose of
religion is not necessarily within the legal conception of charity. 3. A gift fo
r religious
purposes must be treated as a gift for charitable purposes unless the contrary c
an be shown
and a trust for the spread of propagation of the Gospel is a good charitable tru
st. 4. If it is
certain that the object is charity, and the property intended for charity is des
cribed with
certainty, the trust will not fail because there is uncertainty concerning the p
articular
charitable purpose. 5. If the mode of carrying out the trust set out in the will
is impracticable
or not defined with sufficient precision, the court must consider if the mode pr
escribed is so
essential that the intention of charity cannot be separated from it. If the conc
lusion is that the
mode is incidental and not essential, the court, in the exercise of its administ
rative
jurisdiction, will direct that a scheme be settled to carry out that intention.
If the conclusion
is that no paramount general intention can be inferred and the trust is for a pa
rticular
charitable purpose which the court is satisfied cannot be carried into effect, t
he trust fails, not
because of uncertainty, but because of impracticability. The proper conclusion t
o be drawn
depends upon the construction of the will in the light of admissible extrinsic c
ircumstances.
6. When it is found that the trust is not practicable, and there is no underlyin
g charitable
purpose wider than the expressed trust, prima facie, there is a resulting trust
and the property
is held for the residuary beneficiaries or the next of kin, as the case may be.
7. It is irrelevant
to the question of construction that the trustees may not carry out their duties
under the trust;
"it is the right and the duty of [the] Attorney-General to intervene and inform
the Court if the
trustees fall short in their duty", and it is the duty of the Attorney-General,
if need be, to
assist the court in the formulation of a scheme for the execution of a charitabl
e trust.
384. General principles .] In determining what may properly be done with char
itable
funds that cannot be applied as contemplated by the donors, it is important to a
scertain
whether the charitable purpose has taken effect and subsequently failed, or whet
her the
purpose has altogether failed to take effect. In the former case there is strong
authority that
the court has jurisdiction to direct an application cy-pres and it is irrelevant
to consider
whether donations to it had been made originally for a specific purpose only, or
with some
more general charitable intention. In the latter case where the charitable purpo
se has
altogether failed, whether by reason of impracticability or otherwise, the trust
is considered
to have failed ab initio and the consequence is that subject to one qualificatio
n, the funds
must be returned to the donors unless it appears that the accomplishment of the
particular
purpose did not exhaust the charitable intention of the donor, and that his subs
tantial
intention was to advance some wider charitable intention, a gift made solely for
a particular
charitable purpose, although by means of the particular purpose. In such a case,
the gift may
then be administered cy-pres by a court of equity. These are instances of a dono
r's having
manifested a "general charitable intention" an expression used to describe a c
haritable
intention wider than the advancement of the particular purpose which has failed,
although
not necessarily "general" as that word is commonly used. As a qualification upon
this
statement it appears that without there being any general charitable intention,
a gift made
solely for a particular charitable purpose, although it has failed ab initio, it
will be
administered cy-pres if the gift was an out-and-out gift the donor having aban
doned all
interest in it and the Attorney-General has waived the claim of bona vacantia
and by
bringing in a scheme or otherwise has consented to its application for some othe
r charitable
purpose.
BEGGS V KIRKPATRICK [1961] VR 764 (Vic Sup Ct, Adam J).
385. Application of doctrine Funds established by public subscription .] In
connexion
with the establishment of a trust fund for a charitable purpose which ultimately
became
impossible of fulfilment, evidence of a general charitable intention was present
. Held, that,
even if the fund fell within the definition of a "patriotic fund" in s 2 of the
Patriotic Funds
Act 1939 (Vic), s 15 of that Act presented no obstacle to the fund's being admin
istered
cy-pres.
LEWIS V BENSON [1944] VLR 106; [1944] ALR 244 (Vic Sup Ct, O'Bryan J).
386. Application of doctrine Trust to be effected in foreign country .] A t
estator
directed a sum of money to be expended within five years of his death in the ere
ction of an
educational institution to his memory at Lewin in Germany, as the local administ
ration of the
district of Lewin should decide, and directed such building to be of wood or sto
ne and two
stories high, and gave directions concerning the amount to be expended on land,
on erection
of a chapel and steeple, on furniture, and to be invested for maintenance. Held,
that the
bequest was a valid bequest according to Queensland law; but that the court woul
d not
pronounce finally on its validity until informed whether it was practicable to g
ive effect in
Germany to the trusts declared, and whether the law of Germany would allow them
to be
carried into effect, because if they could not be carried into effect in Germany
the
Queensland court could administer cy-pres, and the bequest would fail.
[1922] QSR 252 (Q Sup Ct FC).
387. Application of doctrine Trusts created under power of appointment .] T
he cy-pres
doctrine is applicable to appointments under power.
RE DE LITTLE; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (Q) [1943] QSR 31
(Q Sup Ct, Webb CJ). [Discussed in note, 17 ALJ 14.]
388. Application of doctrine Trust to set money aside "for the creation of an
endowment
of a certain charitable fund to be known as Mary E Walsh Fund" .] By the terms
of
settlement of an action for proof in solemn form of a will an indenture was to b
e executed by
the beneficiaries by which they agreed that 500 be set aside out of the estate "f
or the
creation of an endowment of a certain charitable fund to be known as Mary E Wals
h Fund".
Held, that such endowment constituted a good charitable trust which should be ad
ministered
cy-pres.
RE WALSH; QUEENSLAND TRUSTEES LTD V A-G (Q) [1954] QWN 58 (Q Sup Ct,
Brown AJ).
389. Application of doctrine Benefits of trust not being fully utilized Enl
argement of
class of beneficiaries .] Under a will showing a general charitable intention,
a hospital
was established to receive convalescent patients from public hospitals. There be
ing not
enough of such patients to keep the convalescent hospital full, the Attorney-Gen
eral
petitioned under Rules of Court 1932 (Tas), O LXIV, for a variation of the trust
to allow the
reception of convalescents from any hospital. Held: (1) The court had the same p
owers under
O LXIV as under Sir Samuel Romilly's Act; and could direct a scheme cy-pres. (2)
As the
relief of impotent persons was of itself charitable, the variation should be app
roved subject to
preference for patients from public hospitals.
RE PEACOCK'S CHARITY [1956] Tas SR 142 (Tas Sup Ct, Gibson J).
390. Modification of doctrine Charities Act 1978 (Vic) .] By his will made
in 1959 the
testator, who died in 1965, directed that the balance of his residuary estate be
held as a
common fund in perpetuity and directed his trustees to apply the income thereof,
in their
discretion, to charities exempt from probate or estate duty "at my death". Held:
(1) The
Charities Act 1978 did not simply restate the existing law. Section 2 of the Act
, when
referring to the "spirit of the gift", effected a shift in emphasis in the appli
cation of the
cy-pres doctrine away from the common law position of requiring the impossibilit
y or
impracticability of the testator's original objective being achieved to those ci
rcumstances
which frustrate the purposes, as revealed by the terms of the will, or by eviden
ce, from being
attained. (2) The fundamental purpose of the testator was to benefit all Victori
an charities
forever limited only by their being not subject to death duties. That purpose co
uld not be put
into effect in the spirit of the gift. This was therefore a proper case for the
settlement of a
scheme cy-pres.
FORREST V A-G (VIC) [1986] VR 187 (Vic Sup Ct, Nathan J).
391. Property no longer required for original object Valid charitable trust .
] Where
land and other property purchased with voluntary contributions, and vested in tr
ustees for fire
brigade purposes, was no longer required for those purposes, the court made a de
claration
that the property was held for a valid charitable trust, and directed a referenc
e to the Master
to settle a scheme for the administration of the property cy-pres.
A-G (NSW) V WALKER (1914) 31 WN (NSW) 59 (NSW Sup Ct, Simpson CJ in Eq).
392. Surplus funds .] A subscription having been raised under the name of "Th
e Taranaki
Relief Fund", for the relief of the distress caused by the Maori rebellion, the
amount
subscribed was found to be in excess of the requirements, and a surplus remained
in the
hands of the treasurers of the fund. Upon an information by the Attorney-General
, a decree
was made for the administration of the fund.
A-G (VIC) V LORIMER (1866) 3 WW & A 'B (E) 82 (Vic Sup Ct, Molesworth J).
393. Surplus funds Limitation on amount to be disposed in one year to less t
han income
of fund .] A testator bequeathed his residuary estate upon trust to convert an
y part which
may be deemed expedient into money and "to use the proceeds for distribution amo
ng any
benevolent or charitable institutions ... which may appear to my trustees to be
worthy and
deserving. The limit to be twenty-five pounds to any one object and the aggregat
e not more
than two hundred pounds in any one year". Held, that if it were found that there
was a
devotion of the whole of the residue to charity, the mere fact of the limitation
of the amount
to be disbursed in any one year to 200, coupled with the fact that the income alo
ne of the
residuary estate was very much in excess of that amount, would not involve the c
onsequence
that the next of kin were entitled to anything. A scheme would be settled.
394. Surplus funds Income more than sufficient to carry out object .] A te
stator
directed his trustees to invest the proceeds of his residuary estate; the income
to be paid to
his wife so long as she should remain his widow, and after her death or second m
arriage the
trustees were to hold his residuary estate upon trust to pay legacies to relativ
es and charitable
institutions, and to use the remainder in their absolute discretion, until it wa
s exhausted, in
assisting any two poor widows whom they might from time to time select in paying
their rent
by allowing each four shillings per week. No widow whose rent should exceed the
sum of 11
shillings per week was to be eligible, and the widows were to be residents of No
rth Adelaide.
His widow died, and after payments of legacies to relatives and charitable insti
tutions were
satisfied a sum remained, which, if invested, would produce considerably more in
come than
was necessary for the payment of the two sums of four shillings a week. Held, th
at the entire
residue of the estate was dedicated to charity to the exclusion of the next of k
in.
RE BOWER [1917] SALR 41 (SA Sup Ct, Murray CJ).
395. Surplus funds .] The deed relating to the Darwin Cyclone Tracy Relief Tr
ust Fund,
which was entered into with the object of the relief of suffering and distress a
nd the
compensation for loss arising from the cyclone by applying and distributing mone
y donated
by public subscription, contained the following clause: "When the Trustees after
due and
proper inquiry by resolution of the Trustees determine that there is not and tha
t in the future
there is not likely to be any person to whom or for whose benefit the Trustees s
hould make
any disbursement from the Trust Fund in furtherance of the objects of the Trust
they shall
dispose of any residue of the Trust Fund by transferring it in whole or part to
such funds or
institutions referred to in s 78(1)(a) of the Income Tax Assessment Act 1936-197
4 as
amended as the Trustees by resolution shall determine to be used for the purpose
s if any
specified in the said resolution in respect of the particular fund or institutio
n whereupon the
Trust hereby created shall be at an end". Held: (1) The fund was established for
a charitable
purpose; and the trust was a charitable trust. (2) The donors to the fund had ex
pressed a
general charitable intention. (3) The trustees had implied power to lay down the
precise
terms upon which the trust money already subscribed was to be held, and accordin
gly, the
clause was prima facie valid. (4) The clause should be read down so as to enable
the trustees
to distribute any surplus to such funds and institutions referred to in s 78(1)(
a) of the Income
Tax Assessment Act 1936 (Cth) as are charitable funds or institutions and which
exist for the
benefit of people who are, or have been, at relevant times residents of Darwin,
and, so read
down, the clause was valid.
560. Approval of cy-pres scheme Charitable trust of park land Application t
o court for
advice and authority Power to authorize scheme to sell land .] Held, that th
e power
under the Trustee Act 1936 (SA), s 69, to approve a cy-pres scheme includes a po
wer to
make a declaration for the purposes of authorizing a scheme to sell land held un
der a
charitable trust for public recreation.
[(1992) 75 LGRA 145; and 76 LGRA 226 affd in part.]
BURNSIDE CITY COUNCIL V A-G (SA) (1993) 61 SASR 107; 81 LGERA 167 (SA Sup Ct
FC). [Discussed in note, 1 LGLJ 65.]
[25] B. Where General Charitable Intention
396. Ascertainment Erroneous belief that trust charitable .] A testator gav
e his
residuary estate in thirds upon the following trusts: (1) To apply the property
"towards the
advancement of scientific research generally and the founding endowing or assist
ing any
existing scientific institutions or any scientific institution which may hereaft
er be founded".
(2) To apply the property "for the purpose of founding endowing or assisting pri
vate
institutions or homes in Tasmania or Victoria for the care and treatment of ment
ally afflicted
persons as my trustees may in their absolute discretion select and to be paid or
applied to or
for such objects or institutions or homes if more than one in such proportions a
s my trustees
may think proper". (3) To apply the property "for the purpose of founding endowi
ng or
assisting private homes for the treatment of sick or convalescent persons in cas
es where such
persons cannot be treated in their own homes and it would not be advisable to se
nd or place
them in a public institution asylum or hospital and for the treatment of such pe
rsons who may
be suffering from ill health or constitutional weakness and who may desire to av
ail
themselves of such homes subject to the parties so applying being approved of an
d paying
such fees as may be fixed by those having control and management of the said hom
es". Held:
(1) Each of the gifts was a valid charitable gift. (2) If these gifts had otherw
ise been invalid a
general charitable intention could not have been inferred from the fact that all
the estate was
given for the purposes which the testator erroneously supposed to be charitable.

397. Intention to effect charitable purpose by specified means Gift to care f
or homeless,
stray and unwanted animals by means of home .] By para (3) of her will a testa
trix
directed her trustee (a) to purchase and equip a home to maintain and care for o
r otherwise
mercifully and kindly dealing with homeless stray and unwanted animals. Held, th
at
"homeless stray and unwanted animals" in the will referred to domestic animals,
that is, such
animals as are commonly kept and cared for around human habitations. So construe
d, the
trust declared in para (3) was a valid charitable trust. The question whether th
e will revealed
so general a charitable intention that, if the establishment and maintenance of
a home strictly
in accordance with its terms should be found impossible, the gift should neverth
eless be
applied cy-pres, discussed. Dixon CJ was of opinion that the establishment of a
home was an
essential part of the will, the other judges gave no decision on the point.
[ [1963] SASR 173 affd.]
398. Incorrect description of charity Gift to non-existent fund .] A testat
rix left her
Australian residuary estate on trust "to pay the balance to the English Cancer A
ppeal Fund".
Upon inquiry before the Master in Equity it was found that there was no such ins
titution or
organization. Held, that the will disclosed a general charitable intention to en
sure that the
balance of the residuary estate was made available for research into the causes,
treatment and
control of cancer.
RE MURRAY; PERMANENT TRUSTEE CO (NSW) V SALWEY [1964-5] NSWR 121
(NSW Sup Ct, Hardie J).
399. Incorrect description of charity Charity formerly but no longer performi
ng work
Gift to charity for that work .] By will dated 18 October 1966 the testatrix m
ade the
following bequest: "Ten thousand dollars to the Daughters of Charity of St. Vinc
ent de Paul
for their work in connexion with the blind children at St. Paul's School for the
Blind at
Fernhurst Grove, Kew". St Paul's School for the Blind at Fernhurst Grove (and al
so at Studley
Park Road) Kew, but between 1962 and December 1966 the Daughters of Charity of S
t.
Vincent de Paul had, pursuant to a written agreement with the Villa Maria Societ
y, carried
out the domestic management of the school at Fernhurst Grove. At the end of 1966
the
Daughters of Charity ceased to perform any duties in connexion with the school a
nd from
that date those duties had been carried out by the Villa Maria Society for the B
lind. Held: (1)
The gift to the Daughters of Charity was a good charitable bequest for a purpose
which was
incapable of being carried out. (2) There was a general charitable intention sho
wn which
should be carried out cy-pres by a scheme under which the legacy went to the Vil
la Maria
Society for the Blind to be applied by it for the purposes stated in the bequest
.
RE MULCAHY [1969] VR 545 (Vic Sup Ct, Pape J).
400. Incorrect description of charity Gift to non-existent institution .] A
testator by a
holograph, home-made will disposed of the residue of his estate by the words "&
the
remainder to be divided equally between the following charities, Spastic Childre
n's Society
NSW & the deaf Dum & Blind Society of NSW ...". It was conceded that the gift to
the first
mentioned society was a valid gift of half the residue to an existing institutio
n. Held: (1)
From what appeared in the will and the evidence, the gift of the other half of t
he residue was
not to the Royal New South Wales Institute for Deaf and Blind Children, but to a
n institution
which did not exist, and accordingly it failed. (2) The will showed a general ch
aritable
intention. (3) In settling a cy-pres scheme, the court should give effect as clo
sely as possible
to the intention evident from the will, and accordingly half of the residue shou
ld be divided
equally between the abovementioned institution, the Adult Deaf Society and the R
oyal Blind
Society.
MCCORMACK V STEVENS [1978] 2 NSWLR 517 (NSW Sup Ct, Kearney J).
401. Incorrect description of charity Gift to non-existent institution Gif
t for Spastic
Children's Home in specified locality .] A testator directed that the residue
of his estate be
held "Upon trust to divide the same equally between the following charities, nam
ely, the
Victorian Institute for the Blind, the Spastic Children's Home, Frankston, and t
he Prince
Henry Hospital, Melbourne". The Victorian Institute for the Blind and the Prince
Henry
Hospital, Melbourne, were in existence and ascertained by the trustees. There wa
s no entity,
incorporated or otherwise, known as the Spastic Children's Home at Frankston. Th
e only
possible claimants for the one-third share of residue which purported to be give
n to it were
the Royal Children's Hospital which conducted its orthopaedic section in the Cit
y of
Frankston and the Spastic Children's Society of Victoria which conducted a regio
nal centre at
Chelsea, near Frankston. Held: (1) There was no gift of the third share of resid
ue to either the
Royal Children's Hospital or the Spastic Children's Society of Victoria. (2) Not
withstanding
the suggestion in the terms of the gift to "the Spastic Children's Home, Frankst
on" that the
testator may have intended some specified object in Frankston to receive the gif
t, the testator
had shown a general charitable intention in disposing of his residuary estate. (
3) As the
testator had indicated that the association he intended to benefit was one which
benefited
people in the Frankston area, a scheme cy-pres should be directed providing that
, subject to
the approval of the Attorney-General, the gift of the one-third of the residue s
hould be
divided equally between the Royal Children's Hospital and the Spastic Children's
Society of
Victoria upon condition that in the one case the Spastic Children's Society of V
ictoria apply
the money for the purposes of the care and treatment of spastic children in the
regional area
of Chelsea, and that in the other case the Royal Children's Hospital use the mon
ey for the
care and treatment of spastic children at the orthopaedic section at Frankston o
r such other
place as in the future they might carry on their hospital for children in the Fr
ankston area.
RE DANIELS [1970] VR 72 (Vic Sup Ct, Gillard J).
t to "Methodist
Homes for the Aged" at specified locality .] The testatrix left the residue of
her estate to
"The Methodist Homes for the Aged at Cheltenham". The Methodist Church in Victor
ia (of
which the testatrix was a member) conducted institutions which fell within the d
escription
"Homes for the Aged", but had no such institution at Cheltenham. At the date of
the will
there was an institution at Cheltenham then called "The Melbourne Home and Hospi
tal for
the Aged", which name was changed before the death of the testatrix to the "Chel
tenham
Home and Hospital for the Aged", but it had no connexion with the Methodist Chur
ch. Held:
(1) This was not a case of misdescription of an existing body, but a case of a c
haritable gift to
a body which had never existed, and in consequence the gift was not one to eithe
r of the
existing institutions. (2) The testatrix had by her will shown a general charita
ble intention,
the object of the gift being to benefit aged persons who were needy. (3) The gif
t was not a
direct gift but a gift on trust, the executor having also been appointed trustee
of the will, and
the court accordingly had jurisdiction to direct the settlement of a scheme. (4)
By way of a
scheme for carrying out the trust cy-pres the residue should be divided equally
between the
Methodist Homes for the Aged and the Cheltenham Home and Hospital for the Aged.
RE CONSTABLE [1971] VR 742 (Vic Sup Ct, Pape J).
t to "Abbey
Convent of Orphans in Malta" .] A testator made a bequest to "The Abbey Conven
t of
Orphans in Malta". No orphanage or other institution of that name existed but th
ere were 16
orphanages in Malta. Held: (1) It was clear that the testator did not wish to be
nefit the next of
kin and the will disclosed a general charitable intent. (2) In such cases little
is needed to tip
the scales in favour of validity. (3) The reference to a non-existent institutio
n was an inept
attempt to give particular expression to a general charitable intention to benef
it orphans in
Malta and the gift must be applied cy-pres.
t to "The Blind
Deaf and Dumb Society (Queensland)" .] A testatrix made a gift of a share in h
er
residuary estate to "The Blind Deaf and Dumb Society (Queensland)". There was no
t, nor
had there ever been, a body in existence bearing that name. There was, however,
a
"Queensland Adult Deaf and Dumb Society Incorporated", the activities of which w
ere in
essence for the deaf and the dumb. There was also a "Queensland Industrial Insti
tution for
the Blind" which was the successor to the "Queensland Blind Deaf and Dumb Instit
ution".
Although declared by Order in Council to be a public charitable institution for
providing a
home and instruction for and assisting in the maintenance of the blind and the d
eaf and the
dumb, the activities of the institution were restricted to the help of the blind
and the deaf.
Held: (1) Neither of the two bodies satisfied the description of the organizatio
n named in the
will. (2) The testatrix had a general charitable intention to benefit the blind
and the deaf and
the dumb and the money comprised in the gift should be administered cy-pres.
RE KERR; BRATCHFORD V QUEENSLAND ADULT DEAF & DUMB SOCIETY INC
[1957] QSR 292 (Q Sup Ct, Moynihan AJ).
405. Insufficient description of charity Several bodies satisfying descriptio
n Gift to
"Young Women's Christian Association" in Queensland Five such organizations in
various
towns of Queensland .] A testatrix directed her trustees to divide her residua
ry estate into
four equal parts, one each for the Young Women's Christian Association and three
named
charities. She further directed that the amount of such parts be retained by the
respective
legatees and the income be used only for the purposes of the legatees in Queensl
and. By a
codicil she appointed property over which she had a general power of appointment
under the
will of her father to be held on trusts like those in her will. By a further cod
icil she declared
that such bequests should be recorded as gifts from her in memory of her father
and her
mother. At the time of her death there were five independent Young Women's Chris
tian
Associations in Queensland, and in each case the name of the town or city in whi
ch it was
situated was part of the description of the association. Held, that a general ch
aritable
intention was expressed in the will.
RE DE LITTLE; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (Q) [1943] QSR 31
(Q Sup Ct, Webb CJ). [Discussed in note, 17 ALJ 14.]
406. Insufficient description of charity Several bodies satisfying descriptio
n Gift to
"Legacy" in Queensland .] A testator gave his residuary estate "to the organis
ation known
as `Legacy' for the particular purpose of that organisation" and directed that t
he receipt of
"the President and Secretary of the State Body controlling Legacy in Queensland"
should be a
good discharge to his trustee. At the date of his death there was no organizatio
n known as
"Legacy" and there was no State body controlling Legacy in Queensland. There wer
e,
however, ten voluntary organizations in different centres in Queensland whose na
mes
included the word "Legacy" with or without the addition of "Club", all of which
were
autonomous although they worked in close relation with each other. One, the Lega
cy Club of
Brisbane, had established the Brisbane Legacy War Widows' and Orphans' Fund, and
the
other Legacy Clubs had similar funds all of which were registered under the Patr
iotic Funds
Act 1942 (Q). One of the primary objects of the Legacy Club of Brisbane was "to
seek
opportunities of helping the dependants, particularly the children of those who
sacrificed
their lives in the Great War of 1914-1918 or in the war which commenced on the 3
rd
September, 1939, or who, having served in these wars, are totally incapacitated
as a result of
such services or have died since". Each of the other clubs or the funds establis
hed by them
had a similar object or one which was substantially to the same effect. Each of
the clubs had
other objects, some of which were of a non-charitable nature. Held, that the tes
tator intended
to make a gift for the public charitable purpose set out in the objects of the L
egacy Club of
Brisbane and the objects of the several War Widows' and Orphans' Funds establish
ed in
various parts of Queensland, that the will disclosed a general charitable intent
ion to effect
such charitable purpose, and that the legacy must be administered cy-pres.
RE BERTLING; NOONE V BERTLING [1956] QSR 379 (Q Sup Ct, Macrossan CJ).
407. Refusal of specified persons to administer trust Gift for educational pu
rposes by
means of essay competitions .] A testator directed that the residue of his est
ate should be
invested and that, after the death of a life tenant, the income should be applie
d for the
perpetuation of an essay award to be competed for in every second year. The obje
cts of the
bequest were to popularize and promote the principles he advocated in his publis
hed works,
namely, the adoption of measures to prevent deaths of infants, the improvement o
f Australia
food habits and the extension of the teaching of technical education in State sc
hools. He
directed that the bequest should be administered by a specified society and that
from the
money available a stated sum should be paid to the society for its purposes. He
further
directed that one-third of the income arising from the residuary trust fund shou
ld be
accumulated and added to the corpus of the trust fund. The life tenant died more
than 21
years after the death of the tesator. The society declined to administer the beq
uest. Held: (1)
The extension of the teaching of technical education in State schools was a vali
d charitable
object and the bequest was not void as being a trust for the attainment of a pol
itical object.
(2) The refusal of the society to administer the bequest resulted in a failure o
f the essay
competition but not of the bequest, which should be applied cy-pres. (3) As the
society
refused to administer the bequest the gift to the society failed and its subject
matter remained
part of the charitable fund. (4) The money directed to be accumulated did not pa
ss as upon an
intestacy but should be applied for the purpose of the charity under a cy-pres s
cheme.
[(1937) 38 SR (NSW) 22; 55 WN 43 affd subject to variations.]
ROYAL NORTH SHORE HOSPITAL OF SYDNEY V A-G (NSW) (1938) 60 CLR 396; 12
ALJ 182; 38 SR (NSW) 405; 55 WN 166; [1938] ALR 434 (HC).
408. Refusal of specified persons to administer trust Gifts to Church of Engl
and diocese
for Church of England hospital .] By will a spinster, EP, who died in 1941, ga
ve the
balance of her residuary estate "for the Church of England in the Diocese of Ade
laide,
absolutely for the benefit of the Sunday School Council and a Diocesan Church of
England
Hospital in equal shares". Her sister, GP, who died in 1958, by will made in the
same year,
gave her residuary estate "for the Synod of the Church of England in the Diocese
of Adelaide
Incorporated for the fund to establish and/or maintain a Church of England Hospi
tal
absolutely". Another sister, VP, died in 1963, and by will made in 1962 gave her
residuary
estate in similar terms to the gift contained in the will of her sister GP; but
her will contained
additional provisions that it was her wish that the Synod should establish and m
aintain such
hospital for medical surgical and midwifery purposes, and she directed her trust
ee to obtain a
written undertaking from the Synod that the funds would be used for that purpose
. The
Synod, having considered the bequests, resolved that it was not prepared to use
the funds for
the establishment of a general church hospital and that there was no reasonable
prospect, at
the date of the death of each testatrix, that the respective funds could either
alone or together
have been used for that purpose at any time in the future. Held: (1) The case wa
s one in
which it was of the essence of the trusts that the trustee selected by the testa
trices should act
as the trustee of the trusts, and if that trustee could not or would not underta
ke the office the
trusts must fail. Accordingly, the resolution of the Synod was conclusive of the
question
whether the trusts were practicable. (2) The fund referred to in the wills of GP
and VP was
the fund intended to be established under the trust in the will of EP. (3) In th
e case of each
will there was a general charitable intention to benefit the sick in some manner
under the
auspices or supervision of the Church of England, and schemes should be settled
for the
application of the gifts accordingly.
409. Refusal of specified person to exercise right Gift for university resear
ch .] A
testatrix devised a house upon trust to permit her husband to reside therein unt
il his
remarriage or death or until he earlier advised the trustee in writing that he n
o longer desired
to reside therein, whereupon the property was to be held "upon trust to sell the
said land and
improvements and to pay the net proceeds of sale to the psychology department of
either the
University of Queensland or of the University of New South Wales as directed by
... F, who
shall also have the right to direct and prescribe the research project upon whic
h such moneys
are to be expended". The will also provided a bequest to the Faculty of Veterina
ry Science of
the University of Queensland for research purposes. There was a general residuar
y clause in
favour of the husband of the testatrix. F refused to exercise the right of direc
tion. Upon
application for determination whether the gift failed and whether it manifested
a general
charitable intention, Held: (1) The power of appointment was entrusted to F for
the purpose
of effectuating the intention of the testatrix that the property should devolve
upon one of the
objects of the power according to F's discretion. (2) The testatrix intended tha
t there be a
trust for psychological research and that the recipient should be either the Uni
versity of
Queensland or the University of New South Wales. (3) F's intervention was sought
merely as
a machinery provision in order to put the primary purpose into effect efficientl
y. (4)
Reference to both universities in the bequest was not for the purpose of appoint
ment of one
so that the other would be excluded but rather for the positive purpose of ident
ifying two
universities from which the donee of the power was to make his choice. (5) The r
ight given
to F to direct and prescribe the research project upon which the money was to be
expended
did not imply that the gift would fail should he decline to exercise his right;
F's right was a
subsidiary machinery provision to better effect the primary purpose of the gift,
that is, to
provide for research work. (6) As the prime purpose of the trust was psychologic
al research
generally, then, if the trust did fail by virtue of F having renounced and havin
g refused to
exercise his powers, there was a general charitable intent and the cy-pres doctr
ine would be
applied; the appropriate cy-pres order would divide the fund equally between the
two
universities for their respective researches. (7) If either university was incap
able of applying
its share of the fund into an appropriate research project then the entire fund
should go to the
other provided the latter was capable of doing so.
410. Cyclone relief fund Disposal of surplus after "due and proper inquiry" .
] The deed
relating to the Darwin Cyclone Tracy Relief Trust Fund, which was entered into w
ith the
object of the relief of suffering and distress and the compensation for loss ari
sing from the
cyclone by applying and distributing money donated by public subscription, conta
ined the
following clause: "When the Trustees after due and proper inquiry by resolution
of the
Trustees determine that there is not and that in the future there is not likely
to be any person
to whom or for whose benefit the Trustees should make any disbursement from the
Trust
Fund in furtherance of the objects of the Trust they shall dispose of any residu
e of the Trust
Fund by transferring it in whole or part to such funds or institutions referred
to in s 78(1)(a)
of the Income Tax Assessment Act 1936-1974 as amended as the Trustees by resolut
ion shall
determine to be used for the purposes if any specified in the said resolution in
respect of the
particular fund or institution whereupon the Trust hereby created shall be at an
end". Held:
(1) The fund was established for a charitable purpose; and the trust was a chari
table trust. (2)
The donors to the fund had expressed a general charitable intention. (3) The tru
stees had
implied power to lay down the precise terms upon which the trust money already s
ubscribed
was to be held, and accordingly, the clause was prima facie valid. (4) The claus
e should be
read down so as to enable the trustees to distribute any surplus to such funds a
nd institutions
referred to in s 78(1)(a) of the Income Tax Assessment Act 1936 (Cth) as are cha
ritable
funds or institutions and which exist for the benefit of people who are, or have
been, at
relevant times residents of Darwin, and, so read down, the clause was valid. (5)
The phrase,
"due and proper inquiry" in the clause meant a due and proper calling for claims
and a due
and proper consideration and evaluation of those claims.
561. Invalid direction to accumulate Application of excess income .] A man
who died
in 1900 left legacies by will and four codicils to set up two trusts, one to est
ablish a school
and the other to provide scholarships "at such educational institute or school a
s may be
approved by my trustees and where scholars may attain a thoroughly good and prop
er
education". Scholarships were to be available only to scholars of the Protestant
religion. The
latter trust included a direction to accumulate income, if a suitable school did
not exist in
that locality, until such school should be established, and to invest the accumu
lations. A
private Act was passed in 1926 to allow the income from 5,000 in the scholarship
trust fund
to be applied towards the running of the school. The school closed in the late 1
940s. The
school trustees paid the remainder of their trust funds into the scholarship fun
d, thus mixing
the two. No scholarships had been awarded for upward of 40 years. The court was
asked to
give directions. Held: (1) The direction to accumulate was in breach of s 60(1)
of the Law of
Property Act 1936 (SA). (2) The surplus income invalidly accumulated should be a
pplied
cy-pres and added to the trust fund.
RE UMPHERSTON (1990) 53 SASR 293 (SA Sup Ct, Millhouse J).
[26-27] C. Failure or Extinction of Object
[26] (i) Where Gift Lapses
411. Failure from inception Fund for particular purpose Donations from indi
vidual
donors and from public functions .] Money was subscribed in Beaufort for the e
rection of
a new hospital, the donations coming from living donors, from bequests and from
contributions from local organizations, either directly out of their funds or fr
om the proceeds
of functions. This scheme proved impracticable and it was decided by the committ
ee to
devote the fund towards enlarging the existing hospital. No objections were rece
ived to this
proposed change. Held, that the donations from individual donors or testators an
d from
organizations out of their own funds, were made for a particular purpose only an
d no general
charitable intent could be imputed to them notwithstanding the knowledge that su
ch
donations would be mixed with contemporaneous anonymous gifts from the various s
ocial
and public functions, and notwithstanding the absence of objections to the propo
sed change.
Accordingly, it was not possible to apply such money cy-pres and the individual
donors to the
appeal were entitled to be repaid their donations. The anonymous gifts from soci
al and
public functions should be regarded as outright gifts in which the donors had ab
andoned all
interest and, the Crown having waived any claim to them as bona vacantia, the tr
ustees might
apply that portion towards the proposed new purpose.
BEGGS V KIRKPATRICK [1961] VR 764 (Vic Sup Ct, Adam J).
412. Failure from inception Fund for particular purpose Donation from indiv
idual
donor .] A by letter requested B, the Mayor of Essendon, to call a public meet
ing to
discuss a suggestion made by A that an institute for public recreation and instr
uction be
erected in Essendon, and at the same time sent to B 500 to be devoted to any sche
me which
the meeting might agree upon for such purpose. A public meeting was accordingly
held and a
scheme was adopted for the formation of a company with a capital of 6,000, A's do
nation to
be held in trust until the building should have been completed. A company was fo
rmed, but
owing to want of public support was wound up and dissolved without having effect
ed its
purpose. B retained the 500. A having become insolvent, Held, that no charitable
trust had
been created, and that the 500 should be paid by B to A's trustee in insolvency.
TAYLOR V DANBY (1896) 2 ALR 133 (Vic Sup Ct, a'Beckett J).
413. Failure from inception Charitable institution ceasing to exist .] A te
statrix
directed her trustees to pay the residue of her estate in equal shares to two na
med charitable
institutions. At the same time of her death one of the institutions had disconti
nued its
activities, and its trustees had devoted its assets to other charitable purposes
, though they still
retained a piece of vacant land and a small sum of money. Held, that the gift of
the share was
to a clearly defined charitable institution maintained for a particular purpose;
that institution
had ceased to exist; there was no room for the application of the cy-pres doctri
ne, and the gift
therefore lapsed.
RE MILLS; EQUITY TRUSTEES EXECUTORS & AGENCY CO LTD V EUNSON [1934]
VLR 158; [1934] ALR 150 (Vic Sup Ct, Mann ACJ).
414. Failure from inception Charitable institution ceasing to exist .] Wher
e a bequest
is made to a particular charity which fails by reason of the institution having
ceased to exist
at the time of the testator's death, the legacy will lapse and will not be admin
istered cy-pres.
IN THE WILL OF HAINES; PINCOTT V FARRINGTON (1892) 18 VLR 553; 14 ALT 35
(Vic Sup Ct, a'Beckett J).
415. Failure from inception Dominant purpose of donee only to be achieved by
legislative action Gift to league having object of abolition of traffic in int
oxicating liquor
.] The testator, who died in 1939, by will executed in 1924, bequeathed 250 to
the
trustees for the time being of the Prohibition League of Tasmania. The object of
the League
(which was formed in 1921 and ceased to exist in 1927) was "the abolition of the
traffic in
intoxicating beverages" to be realized "through education, legislation and adequ
ate law
enforcement". Held: (1) Since the dominant purpose of the League could be achiev
ed only by
legislative action, the bequest was not charitable. (2) Even if it were charitab
le the bequest
showed no general charitable intention and therefore lapsed.
RE CRIPPS; CRIPPS V HOBART TEMPERANCE ALLIANCE [1941] Tas SR 19 (Tas Sup
Ct, Morris CJ).
416. Intention to effect charitable purpose by specified means Frustration of
specified
means .] A testator made a gift of one-sixth of the income of his residuary es
tate to his
wife for life and after her death in perpetuity to an infants' home for the main
tenance of his
wife's house as a seaside branch of the home and subject to the foregoing upon t
rust to pay
the income in perpetuity to five named charitable organizations. By her will of
the same date
the wife gave her house to the infants' home to be used as a seaside branch. The
wife
survived the testator and revoked her gift before her death. Held, that the infa
nts' home was
not entitled to the share of income.
FOUNDLING HOSPITAL & INFANTS' HOME V TRUSTEES EXECUTORS & AGENCY
CO LTD (1945) 19 ALJ 383 (HC).
417. Intention to benefit a particular charity Gift to benefit church at unsp
ecified locality
.] A testator devised the residue of his real estate "to and for the benefit o
f the
Presbyterian Church at, to be by the trustees of the said church used for the be
nefit of the
said church". Held: (1) The court would not hear evidence for the purpose of fil
ling up the
blank. (2) The devise showed, not a general charitable intention, but an intenti
on to benefit a
particular charity, and therefore could not be construed cy-pres.
A-G (NSW) V POWELL (1890) 11 LR (NSW) Eq 263; 6 WN 157; 7 WN 30 (NSW Sup Ct
FC).
[27] (ii) Where Gift Applied Cy-pres
418. Gift for institution ceasing to exist in testator's lifetime .] Held: (1
) In determining
whether a charitable gift which would otherwise lapse should be applied cy-pres,
there was
no rule or principle that it was more difficult to conclude that a testator had
a general
charitable intention where there was a gift to a named charity which existed at
the date of the
will but which had ceased to exist before death than in the case where the named
charity
never existed at all. (2) Accordingly, where a bequest (on its proper constructi
on) was made
to an institution for the purpose of a hospital which it carried on at the date
of the will and
where the institution had ceased to carry on that hospital before the death of t
he testatrix but
carried on another hospital, a general charitable intention was found to be the
essential object
of the bequest and it would be ordered that the trust in respect of the bequest
be executed
cy-pres.
A-G (NSW) V PUBLIC TRUSTEE (1987) 8 NSWLR 550 (NSW Sup Ct CA).
419. Gift for institution ceasing to exist in testator's lifetime .] A gift b
y will to a
particular charitable institution simpliciter must be treated as a gift for the
advancement of
the charitable work or purposes of that institution. Nevertheless, a gift by wil
l to a particular
charitable institution which at some time existed, but had ceased to do so in th
e testator's
lifetime, whether before or after the date of his will, ordinarily lapses. Excep
tions to this
lapse rule are: (A) If at the testator's death there is in existence another ins
titution which has
taken over the work previously carried on by the named institution and which can
properly be
regarded as the successor of the named institution, and if the dominant charitab
le intention of
the testator was wide enough to allow the gift to take effect in favour of that
successor
institution, then the gift will take effect in favour of the successor instituti
on. This is an
aspect of the cy-pres doctrine. (B) If upon the true interpretation of the will
the testator
intended that the gift should operate simply as an accretion of the assets of th
e named
institution so as to become subject to whatever charitable trusts were from time
to time
applicable to those assets, and if after the named institution itself ceased to
exist its assets
remained subject to charitable trusts which were still on foot at the testator's
death then the
gift will be treated as taking effect as an accretion to any property which was
at his death
subject to those trusts. (C) If in cases not within A or B the testator is found
upon the proper
interpretation of the will to have had a dominant intention to benefit work or p
urposes of the
kind which the named institution carried out notwithstanding that the named inst
itution itself
might no longer exist at his death, and if it is practicable as at the death of
the testator to
apply the gift for the benefit of work or purposes of that kind, and in a way wh
ich is in all
respects consistent with any other elements of the dominant intention of the tes
tator then the
gift will be so applied by means of a cy-pres scheme. This is an aspect of the c
y-pres doctrine
more general than that which constitutes exception A.
RE TYRIE [NO 1] [1972] VR 168 (Vic Sup Ct, Newton J).
420. Gift for institution ceasing to exist in testator's lifetime .] Held, th
at a gift to "The
Auxiliary for Psychiatric Hospitals in South Australia" lapsed with the winding
up of that
body, but as the will disclosed a general charitable intention on the part of th
e testatrix in
making the gift, a scheme should be prepared for the administration of the gift
cy-pres.
RE ROWELL; PUBLIC TRUSTEE V BAILEY (1982) 31 SASR 361 (SA Sup Ct, Wells J).
421. Gift for institution ceasing to exist in testator's lifetime .] The circ
umstances under
which, upon a gift by will to a charitable institution which has ceased to exist
, a general
charitable intention will be presumed and administration cy-pres ordered discuss
ed.
422. Gift for institution ceasing to exist in testator's lifetime .] A beques
t was made to the
Queen Alexandra Home, which at the date of the will was a home "under the contro
l of the
Queensland Conference of the Methodist Church of Australasia", conducted by the
Queensland Conference for accommodation, care and upbringing for orphans, desert
ed
children and other children who were unable to be cared for by their parents or
families. The
Home was taken over by the State Government after the date of the will but befor
e the death
of the testatrix. A number of other homes performing similar functions were prov
ided by the
Conference, through the Methodist Child Welfare Council. Held, that the testatri
x intended
to contribute to the endowment of the charity conducted by the Methodist Church
in the
Queen Alexandra Home and not merely to the upkeep of the particular home by that
name
and the legacy should be paid for the use of the Methodist Child Welfare Council
.
RE FOWLES [1968] QWN 49 (Q Sup Ct, Hoare J).
423. Gift for institutions renamed in testator's lifetime .] By will and codi
cil a testatrix
gave interests in her residuary estate to "St Vincent de Paul's Girls' Orphanage
, Napier Street,
South Melbourne" and "St John of God, Training Centre for Retarded Children, 124
1 Nepean
Highway, Cheltenham". At the date of death the name of St Vincent de Paul's Girl
s'
Orphanage had been altered to St Vincent de Paul's Children's Home, the name of
St John of
God Training Centre for Retarded Children had been altered to "Churinga" and the
main
premises of each institution had been moved to a different address from that sta
ted in the
will. Held, that in each case the institution which the testatrix had in contemp
lation in her
will had not ceased to exist, with the result that the gifts had not lapsed but
remained valid
and effective. Had the gifts failed by reason of the beneficiaries having ceased
to exist, there
was a dominant charitable intention of the testatrix wide enough to allow the gi
fts to take
effect in favour of the respective successors of the institutions and they would
have so taken
effect.
RE FLYNN [1975] VR 633 (Vic Sup Ct, Starke J).
424. Gift to unidentifiable or non-existent charitable institution .] A testa
tor made a
bequest to "The Abbey Convent of Orphans in Malta". No orphanage or other instit
ution of
that name existed but there were 16 orphanages in Malta. Held: (1) It was clear
that the
testator did not wish to benefit the next of kin and the will disclosed a genera
l charitable
intent. (2) In such cases little is needed to tip the scales in favour of validi
ty. (3) The
reference to a non-existent institution was an inept attempt to give particular
expression to a
general charitable intention to benefit orphans in Malta and the gift must be ap
plied cy-pres.
425. Gift to unidentifiable or non-existent charitable institution .] By will
, made in 1943,
a testatrix gave a pecuniary legacy to "The Church of England Men's Hostel, Wrig
ht Street,
Adelaide", and left the residue of her estate in trust for "the Adelaide Childre
n's Hospital
Incorporated and the Church of England Men's Hostel, Wright Street, Adelaide, in
equal
shares, or for such one of the said institutions as shall be in existence at the
time of my death
absolutely". At that time the Church of England Men's Society conducted a hostel
for aged
and destitute men in rented premises in Wright Street. The hostel, known as "the
Church of
England's Men's Hostel", was never incorporated and never had any formal constit
ution. It
was managed by a committee appointed by the society. In 1947, owing to its premi
ses being
sold by the landlord, the hostel was closed and its operations were suspended. I
ts funds were
invested and held in trust by the committee with a view to the hostel being re-e
stablished
when an opportunity should occur. In 1950, the Synod of the Church of England es
tablished
a home for the aged; and part of the hostel funds was used for the addition of a
wing for the
accommodation of aged men, to be known as the "Church of England Diocesan Men's
Hostel
Wing". The testatrix died in 1951. The hostel committee continued to meet at inf
requent
intervals until 1953, when the remaining funds of the hostel were paid to Synod
for the
"Church of England Diocesan Men's Hostel Wing" at the home. The hostel committee
was
then dissolved. Held: (1) The hostel was not "in existence" at the time of the d
eath of the
testatrix, and the residue of her estate was to be held in trust for the Adelaid
e Children's
Hospital Incorporated absolutely. (2) The pecuniary legacy should be paid to the
Synod of the
Church of England to be applied for the purposes of the Church of England Dioces
an Men's
Hostel Wing of the home.
RE QUESNEL [1959] SASR 106 (SA Sup Ct, Napier CJ).
426. Gift to unidentifiable or non-existent charitable institution .] A testa
trix left a
residuary share in her estate to "the Marr Home for aged persons at Wynnum". At
the date of
her death there was not at Wynnum any existing home for aged women, but M had so
me
years before such death offered to the Queensland Methodist Conference land at W
ynnum
upon trust, in perpetuity, for the purpose of "a site for or as a home or homes
for destitute
children, destitute old folk and/or indigent [Methodist] ministers", which offer
the
conference had accepted. Later, in the testatrix's lifetime, M had transferred l
and "by way of
gift for Church purposes" to trustees of the Methodist Model Deed of Queensland.
In
accordance with the wishes of the donor, a boys' home had been erected and was i
n existence
on part of the transferred land at the date of the death of the testatrix. There
was evidence
that the testatrix had knowledge that M's offer to the conference referred to th
e use of the
land as a home for aged persons. Held: (1) The gift in the will was a valid gift
to the trustees
of the land under a shortened form of expression, to be expended upon one of the
charitable
trusts to which they had power to apply their trust land. (2) If the gift had be
en to a charitable
institution which could not be identified or had never existed, it was clear tha
t the testator
intended to benefit a charitable purpose and the gift could be applied cy-pres.
427. Institution ceasing to exist between testator's death and payment of legac
y .] A
testator who died in 1943, bequeathed one-half of his residuary estate to "the L
ord Mayor's
Patriotic Funds to provide comforts for members of the Australian Imperial Force
s". At the
time of the testator's death, the fund was actively engaged in the provision of
comforts. The
estate did not become available for distribution until 1946, when the fund was b
eing wound
up, as the necessity for the provision of comforts had passed. At that time the
administrator
of the fund informed the testator's trustees that the fund was in process of liq
uidation, that no
further comforts were being furnished by it, that it would be impossible for it
to fulfil the
terms of the bequest, and that for those reasons it was unable to accept the gif
t. Held, that
there had not been a disclaimer of the gift; that looking at the matter, as it s
hould be looked
at, as at the death of the testator, no question of failure of a condition arose
; and that the gift
did not fail because the charitable purpose for which it had been given had beco
me
impracticable between the death of the testator and the time when the gift was a
vailable for
payment, but that it must be applied cy-pres.
WILLIAMS V A-G (NSW) (1948) 48 SR (NSW) 505; 65 WN 257 (NSW Sup Ct, Sugerman
y .] B died
leaving a gift to a religious order to be used in connexion with a school chapel
and another
gift to a Geelong church to complete its building. After B's death, the school w
as closed and
the building had been completed so that his gifts could not be used for the resp
ective
particular purposes. Held, that the gifts to the religious order and the Geelong
church were
not affected by the fact that the testator's purpose had been frustrated by even
ts occurring
after the date of his death.
y .] A
testator gave, after the death of his wife, a pecuniary legacy to the deacons of
a particular
chapel of a religious sect. Before payment of the legacy, the chapel had been so
ld and the
congregation dispersed; there was, however, another chapel of the same sect in e
xistence, but
this was not used solely for divine worship according to the tenets of that sect
. There were
surviving trustees of the trust deed of the chapel but no deacons. Held, that th
e particular
chapel had become defunct, but the bequest being charitable, there was no lapse
and that a
scheme for the application of the legacy cy-pres should be settled.
RE SWAINE [1939] SASR 25 (SA Sup Ct, Angas Parsons J).
y .] A
testatrix left the residue of her estate "to the Lutheran Mission, New Guinea, f
or their sole
use and benefit absolutely". When the will was made that body's activities were
being taken
over by the Evangelical Lutheran Church of New Guinea. In 1976 the latter church
took over
the property of the former and the former ceased to exist. The testatrix died in
1979. Held:
(1) The will disclosed a dominant charitable intention on the part of the testat
rix, and the gift
of her residuary estate did not lapse. (2) The Evangelical Lutheran Church of Ne
w Guinea
could not be regarded as a successor institution to the Lutheran Mission, New Gu
inea, but an
order should be made directing that the gift should be applied cy-pres by paymen
t of the
whole of the fund to that Church.
In the Estate of LIEBELT (1983) 32 SASR 138 (SA Sup Ct, Sangster J).
431. Subsequent failure Gift to particular charitable institution ceasing to
exist
Property becoming vested in another charitable institution .] A testator direc
ted his trustee
to pay out of income to the trustees of M College, England, an annual sum on the
condition
that they should undertake to apply such sum to founding scholarships for the pr
omotion of
the study of certain subjects. The trustees of the College should have a discret
ionary power to
establish the conditions of such scholarships and the qualifications of persons
desiring to
become candidates. The trustees of M College founded the scholarships and for so
me years
received the annuity. By an English statute, M College became incorporated as M
University
College with a new constitution and powers, and all the property vested in the t
rustees of M
College was vested in the incorporated college. By a later Act M University Coll
ege was
dissolved and all property belonging to it was vested in the University of Birmi
ngham. That
University established scholarships answering in every way to the requirements o
f the
testator's will. Held: (1) The annual remittance of money was associated with th
e
performance by a particular body chosen by the testator of a trust which its suc
cessor might
be unable or unwilling to perform, and was not in the nature of payment of a deb
t from the
testator's trustee to a creditor who could dispose of it as he pleased, and ther
efore the
University of Birmingham was not entitled by virtue of the English Acts to deman
d the
annuity which M College if continuing to exist would have had the right to recei
ve. (2) By
the extinction of M College there was a failure of the original trust but that t
he doctrine of
cy-pres was applicable. (3) As it appeared from the origin and constitution of t
he
Birmingham University that it was able and willing to do what the testator desir
ed, and as all
the facts were before the court, the formal settlement of a scheme was unnecessa
ry, but that
the testator's trustee might pay the annuity to the university upon the universi
ty's undertaking
under its seal to apply the money in carrying on the scholarships.
IN THE WILL OF BOWEN; MOULE V A-G (VIC) (1901) 23 ALT 55; 7 ALR 194 (Vic Sup
Ct, a'Beckett J).
exist.] By
deed, L declared that land was held by her for the Bowral Branch of the Minister
ing
Children's League for the use and benefit of the related Free Kindergarten. In c
ertain events
the land might be sold and L should then receive the money upon trust for the Bo
wral Branch
for the use of the kindergarten or such other useful object in connexion therewi
th as might be
determined. After carrying on for several years upon the property the subject of
the trust, the
Free Kindergarten ceased to exist. Later L died, having made a will by which she
disposed of
her residuary estate. The land had not been sold and was vested in L's executor.
Held, that
there had been no lapse of the gift, and that it should be applied cy-pres for c
haritable
purposes, in accordance with a scheme to be settled.
HIXON V CAMPBELL (1924) 24 SR (NSW) 436; 41 WN 104 (NSW Sup Ct, Maughan AJ).
exist Work
continued by university .] A testator left a sum of money to the Director of E
ducation to
be used for the benefit of the Teachers' Training College (a departmental instit
ution for
training departmental teachers), in the discretion of the director and the princ
ipal of the
college. Later the department handed over the training of its teachers to the Un
iversity of
Tasmania and leased to it the college building. Held, that the gift was a good c
haritable gift.
The college having no existence independent of the Education Department, the gif
t was for
the work carried on therein, and, this work being still carried on in another pl
ace, the gift did
not lapse and its use was in the sole discretion of the director, since there wa
s no longer a
principal. Even if the college were a separate institution in existence at the d
ate of the
testator's death, the fund would fall to be applied cy-pres.
RE WRIGHT; PILLGREM V A-G [1951] Tas SR 13 (Tas Sup Ct, Green J).
434. Resumption Of part of church land Application of resumption money for
purpose
of parsonage .] A grant of land having been made for the purpose of building a
church
there, the church was so built. Another part of the land, which would have been
suitable for a
parsonage, was resumed by the Commissioner for Railways, who paid the compensati
on
money into court. The trustees applied for the money to be paid out, to enable t
hem to pay
for other land which they had agreed to purchase as a site for a parsonage in co
nnexion with
the church, and to erect a parsonage thereon. The church at the time of the appl
ication was
complete and in good repair. Held, that as it was impossible to apply the money
in strict
conformity with the terms of the trust, the court had power to order the money t
o be
expended on an object connected with the object of the trust.
RE COMMISSIONER FOR RAILWAYS and TRUSTEES OF ST BARNABAS' CHURCH,
BATHURST (1887) 8 LR (NSW) Eq 22 (NSW Sup Ct, Manning PJ in Eq).
435. Resumption By Crown .] Land was devised to trustees for a particular c
haritable
purpose which could not be carried out because the Crown subsequently resumed th
e land.
Held, that, the devise having taken effect, a scheme must be directed for the ap
plication of
the compensation money for a purpose resembling that which had failed.
RE WOOLLNOUGH; WOOLLNOUGH V TRUSTEES OF THE PROPERTY OF THE
CHURCH OF ENGLAND (TAS) [1953] Tas SR 25 (Tas Sup Ct, Morris CJ).
436. Lapse of time and changed circumstances .] In 1921 and 1928 land in what
was then
a rural locality was acquired and held in trust for the erection of a public hal
l for local
residents. By 1965 the nature of the locality had changed to urban and a small h
all which had
been erected several years before was then in disrepair. Although the original t
rusts for the
use of the land were still capable of fulfilment, it would have been impracticab
le and not in
the public interest to do so as the renovation would have been very costly and t
he hall when
renovated would have been inadequate and of little use and the trust's funds wer
e not
sufficient to erect a new hall. Held, that as the original purpose of the trust
funds could not be
carried into effect in the exact way directed by the donors, due to lapse of tim
e and changed
circumstances, the funds should be applied cy-pres.
PARKER V MOSELEY [1965] VR 580 (Vic Sup Ct, Starke J).
437. Trustee essential part of trust Declining to execute trust .] By her w
ill a spinster,
EP, who died in 1941, gave the balance of her residuary estate "for the Church o
f England in
the Diocese of Adelaide, absolutely for the benefit of the Sunday School Council
and a
Diocesan Church of England Hospital in equal shares". Her sister, GP, who died i
n 1958, by
will made in the same year, gave her residuary estate "for the Synod of the Chur
ch of
England in the Diocese of Adelaide Incorporated for the fund to establish and/or
maintain a
Church of England Hospital absolutely". Another sister, VP, died in 1963, and by
will made
in 1962 gave her residuary estate in similar terms to the gift contained in the
will of her sister
GP; but her will contained additional provisions that it was her wish that the S
ynod should
establish and maintain such hospital for medical surgical and midwifery purposes
, and she
directed her trustee to obtain a written undertaking from the Synod that the fun
ds would be
used for that purpose. The Synod, having considered the bequests, resolved that
it was not
prepared to use the funds for the establishment of a general church hospital and
that there
was no reasonable prospect, at the date of the death of each testatrix, that the
respective
funds could either alone or together have been used for that purpose at any time
in the future.
Held: (1) The case was one in which it was of the essence of the trusts that the
trustee
selected by the testatrices should act as the trustee of the trusts, and if that
trustee could not
or would not undertake the office the trusts must fail. Accordingly, the resolut
ion of the
Synod was conclusive of the question whether the trusts were practicable. (2) Th
e fund
referred to in the wills of GP and VP was the fund intended to be established un
der the trust
in the will of EP. (3) In the case of each will there was a general charitable i
ntention to
benefit the sick in some manner under the auspices or supervision of the Church
of England,
and schemes should be settled for the application of the gifts accordingly.
438. Refusal of appointee of power of appointment to exercise power .] A test
atrix
devised a house upon trust to permit her husband to reside therein until his rem
arriage or
death or until he earlier advised the trustee in writing that he no longer desir
ed to reside
therein, whereupon the property was to be held "upon trust to sell the said land
and
improvements and to pay the net proceeds of sale to the psychology department of
either the
University of Queensland or of the University of New South Wales as directed by
... F, who
shall also have the right to direct and prescribe the research project upon whic
h such moneys
are to be expended". The will also provided a bequest to the Faculty of Veterina
ry Science of
the University of Queensland for the purpose of research in certain areas. There
was a
general residuary clause in favour of the husband of the testatrix. F refused to
exercise the
power referred to above. Upon application for determination whether the gift fai
led and
whether it manifested a general charitable intention, Held: (1) The power of app
ointment was
entrusted to F for the purpose of effectuating the intention of the testatrix th
at the property
should devolve upon one of the objects of the power according to F's discretion.
(2) The
testatrix intended that there be a trust for psychological research and that the
recipient should
be either the University of Queensland or the University of New South Wales. (3)
F's
intervention was sought merely as a machinery provision in order to put the prim
ary purpose
into effect efficiently. (4) Reference to both universities in the bequest was n
ot for the
purpose of appointment of one so that the other would be excluded but rather for
the positive
purpose of identifying two universities from which the donee of the power was to
make his
choice. (5) The right given to F to direct and prescribe the research project up
on which the
money was to be expended did not imply that the gift would fail should he declin
e to
exercise his right; F's right was a subsidiary machinery provision to better eff
ect the primary
purpose of the gift, that is, to provide for research work. (6) As the prime pur
pose of the trust
was psychological research generally, then, if the trust did fail by virtue of F
having
renounced and having refused to exercise his powers, there was a general charita
ble intent
and the cy-pres doctrine would be applied; the appropriate cy-pres order would d
ivide the
fund equally between the two universities for their respective researches. (7) I
f either
university was incapable of applying its share of the fund an appropriate resear
ch project
then the entire fund should go to the other provided the latter was capable of d
oing so.
562. Gift to institution ceasing to exist after testator's death Gift of resi
duary estate after
life interests .] A testator bequeathed his residuary estate to "The United Ab
origines
Mission (SA) Incorporated for the benefit of Colebrook Home at Eden Hills". The
will
provided for life interests. The institution of Colebrook Home ceased to exist a
fter the death
of the testator. The respondent Mission was the successor to the former United A
borigines
Mission. On an application for directions by the testator's executor, Held: (1)
The gift did not
fail. At the time of the testator's death Colebrook Home existed, run by the pre
decessor of the
respondent. The gift did not lapse and could be executed cy-pres. (2) There was
no necessity
to find a general charitable intention. In any event, the will disclosed a gener
al charitable
intention. (3) Accordingly, there was no intestacy; the intention of the testato
r should be
executed cy-pres.
RE MOORE; AUSTRUST LTD V UNITED ABORIGINES MISSION (1991) 55 SASR 439
(SA Sup Ct, Bollen J).
563. Gift to organisation ceasing to exist in testatrix's lifetime Organisati
on having mixed
charitable and political purposes .] A testatrix left her entire estate to the
Federal Council
for the Advancement of Aborigines and Torres Strait Islanders which had ceased t
o exist at
the date of her death. The Council's objects included both charitable and politi
cal purposes,
the latter including the elimination of discriminatory laws by promoting such ca
uses as
indigenous land rights. Held: (1) A trust may survive in Australia as charitable
where the
object is to introduce new law consistent with the way the law is tending becaus
e there is
then no longer contrariety with an established policy of the law. (2) Several ob
jects of the
Council aimed to change the law in a way which did not reflect the way in which
the law had
travelled so that those objects were political and not charitable. (3) Applying
the Charitable
Trusts Act 1993 (NSW), s 23, it was possible to sever the political objectives f
rom the
charitable ones so as to attribute a general charitable intention to the testatr
ix's wishes. (4) A
cy-pres scheme should be permitted consistent with the testatrix's general chari
table
intention.
PUBLIC TRUSTEE V A-G (NSW) (1997) 42 NSWLR 600 (NSW Sup Ct, Santow J).
[28-29] D. Impracticability of Object
[28] (i) Where Gift Fails
439. Gift to voluntary association to be used on building as home for aged pers
ons Donee
unable to receive and apply gift .] A testatrix bequeathed $20,000 to the trus
tees of the
Christian Alliance for Women and Girls, to be used on the development of a holid
ay home
building as a home for aged persons. The Alliance was an unincorporated associat
ion, which,
under its rules as they then stood, could not receive and apply the legacy for i
ts expressed
purpose. Held: (1) The bequest did not show any general charitable intention. (2
) A
charitable gift will fail for impracticability where under the constitution of t
he donee it
cannot receive and apply the gift for the purpose for which it was given. The gi
ft therefore
failed. Per curiam In the present case, assuming that it was open under the ru
les of the
Alliance to make the changes in its rules necessary to give it this power (which
it was not),
no reasonable man could have foreseen at the time of the death of the testatrix
that these
changes would be made within a reasonable time thereafter in such a form as to p
ermit the
gift to be accepted, and, even on that assumption therefore, the gift would have
failed.
HARRIS V SKEVINGTON [1978] 1 NSWLR 176 (NSW Sup Ct CA).
440. Gift of house to be used by aborigines as holiday hostel .] The testatri
x devised a
house at Elwood "to be used [in certain events] by the Aboriginals" as a holiday
hostel and to
be run by an aboriginal welfare organization to be selected. The will also provi
ded that the
property "must not be sold to outsiders for gain, but an Hostel may be erected f
or Aboriginals
only". Held, that the will did not show a general charitable intention to benefi
t aborigines
whether of pure or mixed blood.
RE BARRY [1971] VR 395 (Vic Sup Ct FC).
441. Gift of unsuitable building for old ladies' home Use of building indispe
nsable
element of gift .] The testatrix devised land on which was a dwelling to the C
hurch of
England to be used "as a home for refined elderly ladies". She wished that restr
ictions be
placed on the type of person to be admitted to the home and on visitors and in o
ther ways.
The land was not to be sold by the church. The house was of timber construction
over 80
years old, in a semi-derelict state and completely unsuited for the accommodatio
n of elderly
persons according to the requirements of public authorities. Later provisions of
the will
included a gift purporting to be of all the testatrix's estate upon specified tr
usts. Held: (1) The
use of this property as a home for refined elderly ladies was an essential and i
ndispensable
element of the gift and not merely a subsidiary means of giving effect to an int
ention to
provide a home for persons of designated description regardless of the site and
no general
charitable intention appeared. Accordingly the gift wholly failed for impractica
bility. (2)
There was no sufficient indication in the will to prevent the application of the
general rule
that the subject matter of a gift which fails passes under a residuary gift, and
the house
passed accordingly.
.]
442. Gift for erection of church in memory of testator .] A testatrix gave pa
rt of her estate
to her trustees upon trust "to use the same towards the cost of a new Methodist
Church to be
erected on the site of the present Methodist Church situated in Pulsford Road Pr
ospect
provided such Church is known as the `P H Le Cornue Memorial Church' and provide
d also
that in such new Church when erected there shall be a Memorial Window in memory
of
myself". After her death it was not practicable to erect the church, and the lan
d on which the
existing church stood was eventually transferred to another organization. Held,
that the will
displayed a particular charitable intention which had failed and did not display
a general
charitable intention to enable the gift to be applied cy-pres.
GILMORE V UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (SA) (1984) 36
SASR 475 (SA Sup Ct, Millhouse J).
564. Hostel ceasing to exist after death of testator No partial intestacy or
gift over to
residuary legatee Discretionary trust Cy-pres application inapplicable .]
RE FINDLAY'S ESTATE (1995) 5 Tas R 333 (Tas Sup Ct, Cox CJ).
[29] (ii) Where Gift Applied Cy-Pres
443. Gift for returned soldiers, their widows and descendants to be carried out
by specified
means .] The testatrix bequeathed her residuary estate to her trustee with a d
irection to
apply the capital and income "for the relief of necessitous returned soldiers an
d their widows,
children or grandchildren who may be in necessitous circumstances (that is those
only
earning the basic wage for the time being or under and not possessed of more tha
n 200) in
the manner and in accordance with the scheme following that is to say": then fol
lowed a
definition of persons eligible to receive benefits under the scheme, and a detai
led scheme
under which the trustee was to expend the money in the purchase of land in New S
outh
Wales, and to let it at a peppercorn rent to persons within the scheme, who were
to covenant
to reside upon and work the land. There was a provision by which the trustee was
empowered to let the premises even to the great-grandchildren of returned soldie
rs and others
eligible under the scheme and even though they were not in necessitous circumsta
nces.
Finally, the testatrix directed "my trustee to complete the distribution of the
whole of my
residuary estate both capital and income" at a certain date "by transferring in
fee simple
without consideration to each of the then occupant or occupants of the lands so
to be
purchased under the terms of this my will and the remaining part of my estate (i
f any) to be
converted into cash and such cash distributed between and amongst such then occu
pant or
occupants". Held, that the gift was a valid charitable gift, and that the will c
ontained a
general charitable intention sufficient to justify the application cy-pres of th
e fund in the
event of the testatrix's scheme proving impracticable.
BARBY V PERPETUAL TRUSTEE CO (LTD) (1937) 58 CLR 316; 11 ALJ 306 (HC).
444. Gift of specified property for training farm for Australian orphans .] A
testatrix,
whose home was a property known as Milly Milly, made the following disposition i
n her
will: "I will and bequeath the whole of the Milly Milly property to be held by t
he Perpetual
Trustee Co for a training farm for orphan lads being Australians". The property
consisted of
3,800 acres of land suitable for carrying sheep and in part for wheat growing. T
o use the
property as a training farm was found to be impracticable. The homestead was too
small, the
plant was too old-fashioned, and the income produced would not suffice to suppor
t the staff
and to meet the expenses thought necessary for the project. Held, that the inten
tion that Milly
Milly should be the actual place of training did not form an essential or indisp
ensable
condition of the gift, which was dominated by the more general charitable intent
ion of
providing for the training of Australian orphan lads in farming pursuits, a guid
ing purpose to
the fulfilment of which the testator had devoted Milly Milly as a suitable means
; therefore, as
the property was unsuitable as a training farm, it should be applied cy-pres.
A-G (NSW) V PERPETUAL TRUSTEE CO (LTD) (1940) 63 CLR 209; 14 ALJ 122; [1940]
ALR 209 (HC).
445. Impracticable accumulation for purpose of building hospital .] A testato
r directed
his trustees to carry on his estate until they considered they had sufficient ca
sh in hand to
establish and maintain a private hospital, to be known as "The Geldmacher Nimity
belle
District Private Hospital". It was estimated that it would take 31 years to accu
mulate
sufficient money to erect and maintain the hospital. Held, that the will showed
a general
charitable intention to benefit the sick poor, and that although the particular
purpose of the
bequest was impracticable, the court would execute the trust cy-pres; and it was
referred to
the Master to settle a scheme.
MORTON V A-G (NSW) (1911) 11 SR (NSW) 473; 28 WN 131 (NSW Sup Ct, Cullen CJ).
446. Benevolent fund for benefit of widows or orphans of members .] The laws
of the
AMA, an unincorporated association of members of the medical profession, by cl 5
3 made
provision as follows: "The cash of the Association shall belong to (a) A General
Fund ... (b)
A Benevolent Fund for rendering pecuniary aid to those in distress, who are or h
ave been
Fellows of the Association, their widows or orphans". In 1869 the association ce
ased to
function but the benevolent fund was vested in trustees, and its administration
was continued
by them and by new trustees appointed from time to time. No Fellows or widows of
Fellows
remained alive. Several children of deceased Fellows were living, but apart from
L required
no aid. L attained her majority and married before the death of her father in 18
98, and had
been supported by her husband. She had become a widow in straitened circumstance
s and
her health was impaired. Held: (1) The term "orphans" as used in cl 53 meant chi
ldren of a
deceased Fellow who, by reason of his death, were in distress owing to deprivati
on of, or of
the expectation of, his support. (2) L did not fulfil that description. (3) In t
he events that had
happened the further application of the benevolent fund for the prescribed purpo
se was
impracticable. Meaning of "orphan" discussed. Held, also, that the court could f
ind an
indication of a general charitable intention from the fact that the property had
been devoted
to a particular charitable purpose, in circumstances from which it was apparent
that the
donors intended to make absolute perpetual gifts of the property, not reserving
to themselves
any interest in it; and that the fund should be applied cy-pres.
ARMSTRONG V A-G (NSW) (1934) 34 SR (NSW) 454; 51 WN 151 (NSW Sup Ct, Long
Innes J). [Discussed in note, 8 ALJ 255.]
447. Gift to provide scholarships for school children Directions for preferen
tial treatment
.] A testator devised his residuary estate to the trustees of the Presbyterian
Church of
Australia "upon trust to apply the income thereof in perpetuity for the promotio
n and
encouragement of education in NSW in manner hereinafter appearing". The will wen
t on to
provide for the establishment of scholarships to be awarded to students or inten
ding students
of any primary or secondary school in NSW "provided that in making any such awar
d
preference shall be given to any lineal descendant or descendants of my late fat
her David
Edward and failing any such descendant to any child or children of a minister or
deceased
minister of the said Presbyterian Church and failing any such child or children
to any then
present or then intending student of Scots College, Bellevue Hill, near Sydney".
Held, that
the testator having clearly expressed a general charitable intention, the trust
would not fail
even if the particular means indicated by the testator for carrying it out faile
d.
0
ALJ 432.]
448. Gift to religious body for home for sick children .] The testatrix direc
ted her
residuary estate to be held "upon trust for the Executive or Principals of the C
hurch of
England Homes, 70 King Street, Sydney, to be used and applied for the erection o
f a home
for sick children to be named and known as `The Harriet Blaxland Home for Sick C
hildren' ".
The governing body of the Church of England Homes decided that the establishment
in the
homes of a hospital for sick children was not practicable. Held: (1) On the cons
truction of the
will the trust was not a gift to the Church of England Homes for its purposes. (
2) The
dominant aspect of the gift was the direction that the fund should be applied fo
r
establishment of a home for sick children and that the will therefore manifested
a general
charitable intention, with the result that the court could settle a scheme conso
nant with that
intention.
RE BLAXLAND; PERPETUAL TRUSTEE CO LTD V COMMITTEE OF CHURCH OF
ENGLAND HOMES [1964-5] NSWR 124 (NSW Sup Ct, Hardie J).
449. Residuary gift to churches for "extensions" .] A testator left his resid
uary estate to
five named churches "in and for the building of extensions to the said churches
and chapels".
He directed that portion of this residuary gift in each case be spent on a new h
igh altar
reredos. In at least two cases, the churches named occupied the whole of the sit
e on which
they were built and extensions, in the literal sense, were not possible. Also as
far as the gifts
for the reredos were concerned, in at least one church it would be impracticable
to comply
with the testator's direction. Held: (1) In construing the word "extensions" the
court should
take into consideration surrounding relevant circumstances including the fact th
at the testator
took a great interest in the churches in question and was aware of the extent of
the church
buildings in relation to their respective sites. (2) In the will, the word "exte
nsions" covered
alterations, renovations, restorations or additions to the fabric of the church,
either internally
or externally. (3) Even if the direction concerning the high altar reredos might
not be capable
of being implemented, each church was entitled to its full share of residue and
might use the
money for some purpose similar to the purpose the testator had in mind.
450. Gift of land for training home for neglected children .] Land was vested
in trustees
to provide for a training home for neglected children. It was unimproved bush la
nd in the
country. The trustees were empowered to lease any part for any term not exceedin
g 20 years,
and were directed to apply the rents and profits towards building, improving or
repairing the
trust property or maintaining the home. There being no funds available for build
ing a home
upon the land, it remained in the same condition as at the declaration of the tr
ust for about
ten years. The trustees then sold the land. It was impossible to obtain the mone
y necessary to
provide for an institution such as that contemplated by the trust, and there was
no need for
such an institution. Held, that a general charitable intent was disclosed, and t
hat as the
particular mode of giving effect to it was impracticable, the trust fund should
be applied
cy-pres.
RE WISEMAN'S TRUSTS; WISEMAN V EQUITY TRUSTEES EXECUTORS &
AGENCY CO LTD [1915] VLR 439; (1915) 37 ALT 53; 21 ALR 347 (Vic Sup Ct, Hood J).

451. Gift to provide wing for hospital .] A testator bequeathed a sum to the
United Grand
Lodge of Freemasons of Victoria to erect, establish and equip a wing containing
one four-bed
ward and one two-bed ward at the Freemason's Intermediate Hospital. Held, that t
he gift was
a good charitable gift inasmuch as the hospital existed for the relief of suffer
ing. Since the
specific purpose described by the testator could not be carried out, the court d
irected that the
sum be added to the endowment fund of the hospital for the maintenance of certai
n wards.
RE CHOWN; TEELE V UNIVERSITY OF MELBOURNE [1939] VLR 443; [1939] ALR
482 (Vic Sup Ct, Mann CJ).
452. Gift to establish museum and art gallery on land Condition that location
be on
specified land .] The testatrix left her house and land in Maryborough to her
trustees to
hold for 15 years from her death as a museum and art gallery. She directed the t
rustees to
expend income on the upkeep of the house, on the employment of a caretaker, and
on the
purchase of pictures and other exhibits. She further directed them to appoint an
nually from
the citizens of Maryborough an advisory body to manage the museum, subject to th
e trustees'
discretion, and at the end of the 15 year period to transfer the house and land
to the body as
then constituted on its undertaking to retain the property as a museum and art g
allery. The
house was unsuitable for those purposes and there were insufficient funds to ena
ble the
property to be so maintained. It would be impracticable to apply the subject mat
ter of the gift
towards a museum or art gallery anywhere else. Held, that it was an indispensabl
e condition
that the museum and art gallery should be located at the site of the house and l
and, that this
was impossible in the circumstances, that the cy-pres doctrine had no applicatio
n and that the
gift failed and there was an intestacy as to the subject matter of the gift. Sem
ble, if the
direction as to location were not an indispensable condition the proper conclusi
on would be
that the intention in favour of the inhabitants was not essential to the gift an
d that
accordingly the gift should be applied cy-pres.
RE GWILYM [1952] VLR 282; [1952] ALR 506 (Vic Sup Ct, Smith J).
453. Gift to erect church in locality where no prospective worshippers Gift t
o establish
farm school for training orphan and destitute boys .] A testatrix bequeathed a
sum to the
Presbyterian Church of Victoria to erect a church at Green's Creek in memory of
the
deceased members of her family. She added a statement that it was her desire tha
t the church
should be available to all religious denominations to conduct services. She gave
the residue
of her estate to the Church to establish and maintain a farm training school for
orphan and
destitute boys. On an application to determine the effect of the will, the court
found that it
was impracticable to carry out the terms of each of the gifts. Held, that the gi
ft of the money
for erecting the church did not show a general charitable intention, but the gif
t of residue for
the school did show such an intention.
RE TYRIE [1970] VR 264 (Vic Sup Ct, Gowans J). [Discussed in note, 44 ALJ 506.]
454. Gift for maternity home .] A testator directed that "my executors shall
upon the
decease of my children and the arrival at maturity of my grandchildren as provid
ed devote
the whole of my estate wheresoever and whatsoever to the maintenance of a matern
ity home
to be known as the Wyld Home and to be available to the extent of its means to y
oung
women who have erred for a first time, but under no circumstances for a second o
ccasion if
known. In the event of a suitable site for the purpose of the home not being a p
ortion of my
estate my executors may purchase one or [sic] buildings for the purpose". Held,
that there
was a sufficient indication of a paramount intention, independently of the quali
fication
imposed by the will, to benefit persons of a particular class.
RE WYLD; EXECUTOR TRUSTEE & AGENCY CO OF SA LTD V GREENWOOD
[1932] SASR 298 (SA Sup Ct, Richards J). [Discussed in note, 6 ALJ 296.]
455. Gift for scholarship for study and training in any branch of aviation .]
A testator
gave his residuary estate upon trust "to grant in each year two scholarships of 5
0 per annum
each tenable for three years and to be open for competition to Protestant boys o
f the
Hindmarsh and Brompton Schools for study and training in any branch of aviation
and to
assist in his maintenance during the term of the scholarship". Held: (1) The tru
sts expressed a
charitable purpose. (2) The trusts expressed a general charitable intention and
in the event of
the terms of the trust becoming impracticable a cy-pres scheme might be settled.

RE LAMBERT [1967] SASR 19 (SA Sup Ct, Bright J).
456. Gift of land to Legacy Club .] A testatrix devised free from encumbrance
s her house
at Tamborine "to The Legacy Club of Brisbane absolutely to be used by them for t
he benefit
of war orphans and widows". The will then continued: "and I express the desire t
hat this
property as conducted by The Legacy Club of Brisbane will be known as `Wintringh
am' ".
Held: (1) The gift was an estate in fee simple on which was engrafted a trust th
at the property
be held in specie and conducted by the Legacy Club of Brisbane as a home for the
benefit of
war orphans and widows. Accordingly, the Legacy Club was not entitled to alienat
e the
property under s 1 of the Religious Educational and Charitable Institutions Act
1861 (Q). (2)
By the words "war orphans and widows" the testatrix intended to benefit "dependa
nts" of
deceased ex-members of Her Majesty's Forces within the meaning of the objects of
the
Legacy Club of Brisbane, provided such dependants were widows and children withi
n the
meaning of the objects of the Brisbane Legacy War Widows' and Orphans' Fund. (3)
The
particular intention of the testatrix was subordinate to her dominant intention
to create a
general charitable trust for the benefit of war orphans and widows, and it being
impracticable
for the Legacy Club to carry out her intention, the gift should be administered
cy-pres.
RE STABLE; LEGACY CLUB OF BRISBANE V MARSTON [1957] QSR 90 (Q Sup Ct,
Jeffriess AJ).
457. Gift for foundling hospital with conditions for conduct Conditions not e
ssential to
gift .] The testator bequeathed his residuary estate to his trustee to pay to
the Order of the
Sisters of the Perpetual Adoration of the Blessed Sacrament for founding and con
ducting a
Foundling Hospital or Home in Brisbane according to these conditions: (a) the sa
ving of
infant life to be the first consideration; (b) no question shall be asked or inq
uiry be made as
to parentage or religion; (c) a crib shall be placed and kept each night in the
hall or vestibule
of the institution for the reception of infants. He further directed his executo
r to have
prepared and execute a trust deed containing provisions to give full effect to h
is intention as
expressed in his will or as nearly thereto as possible. Held, that the primary o
bject of the gift
was the establishment of a foundling hospital, that the conditions as to the cri
b and the
administration by the Order of Sisters were not essential to the disposition, th
e will disclosed
a general charitable intention and the gift should accordingly be administered c
y-pres.
RE QUAID [1972] QWN 22 (Q Sup Ct, Lucas, J).
565. Gift for masses Gift impracticable or highly inconvenient .] The testa
trix
bequeathed her estate to be held on trust with the income to be applied for mass
es for the
souls of named individuals at a church and a monastery. The Roman Catholic Archd
iocese of
Melbourne proposed that the income of one-third of the estate be applied for mas
ses and the
other two-thirds be applied by the church and monastery for the advancement of r
eligion.
Held: (1) The trust was a valid charitable trust for the advancement of religion
because: (a)
there was a public benefit in intercessory prayer as the celebration of mass was
itself a
central act of the religion of a large proportion of Christian people; and (b) t
he honorarium
payable for the mass enabled priests to support themselves. (2) The estate shoul
d be applied
cy-pres as proposed by the Roman Catholic Archdiocese of Melbourne because the t
rust
stipulated by the will, if not wholly impractical, was at least highly inconveni
ent to give
effect to.
CROWTHER V BROPHY [1992] 2 VR 97 (Vic Sup Ct, Gobbo J).
[30-31] Pt IV. Trustees of Charities.
[30] Divn 1. Powers and Duties
458. Power to vary trusts Powers of compromise .] Held: (1) The objects of
a
discretionary trust who are individually entitled to require the trustee to deal
with
distributable funds in accordance with due and proper administration are also en
titled,
through the medium of the rule in Saunders v Vautier, to join together to termin
ate a
discretionary trust of intermediate income. (2) Before the rule in Saunders v. V
autier can be
successfully applied it must be ascertained upon the true construction of the tr
ust instrument
whether or not the object of the trust is entitled to it indefeasibly and absolu
tely; such an
entitlement does not follow from the fact that it may be possible to say that th
e trust property
is dedicated to charity so as to exclude any resulting trust. (3) While it may b
e possible for
individuals to combine in effect on a compromise basis to determine a trust, it
is not open to
two trustees of two separate charitable trusts to take action which would have t
he effect of
varying the trusts upon which they hold or are entitled to receive property.
459. Power of sale General principles .] Under a declaration of trust land
was held by
a trust corporation "in trust as the site of a church", to be used for the perfo
rmance of the
services of a religious denomination. Under another declaration of trust it held
an adjoining
piece of land "in trust as land to be used in connection with and as appurtenant
to the land
adjoining thereto", being the land held under the former trust. Under a third de
claration the
same trustee held other land, also adjoining that first mentioned, "in trust for
the residence or
parsonage" of the minister of the church. The instruments contained no power of
sale. On an
application by the trustee for the court's sanction to the sale of the land seco
ndly mentioned,
and the application of the proceeds of the sale to the repair of the parsonage o
n the land lastly
mentioned, Held, that the sale suggested would not be a provident administration
of the trust
property and, therefore, could not be sanctioned.
RE CHURCH OF ENGLAND TRUSTS CORPORATION (WANGARATTA) [1924] VLR
201; sub nom CHURCH OF ENGLAND TRUSTS CORPORATION (WANGARATTA) V
A-G (VIC) (1924) 45 ALT 134; 30 ALR 129 (Vic Sup Ct, Weigall AJ). [Discussed in
note, 8
ALJ 329.]
460. Power of sale Sale of contingent interest Hospitals and Charities Act
1922 (Vic)
.] A testator devised land in trust for an incorporated charity, and committed
to it the
maintenance and repair of his family vault, and directed that, upon failure to c
omply with
this request, the land should pass to another incorporated charity. The original
donee, having
maintained the repair of the vault for 24 years succeeding the testator's death,
entered into an
agreement with the donee under the gift over by which the later donee, for a sma
ll monetary
consideration, sold and transferred its entire interest to the original donee. H
eld, that by
virtue of the Hospitals and Charities Act 1922, ss 49, 71(3), the charity had po
wer so to sell
its contingent interest, and that the effect of the transaction was to extinguis
h the condition
relating to the maintenance of the vault.
461. Power of sale Whether court's consent necessary .] The trustees of an
English
public charity may, without the sanction of the Victorian court, sell and give t
itle to land in
Victoria devised to and vested in the trustees if such sale is made in conformit
y with the laws
of the charity and is beneficial thereto. The conveyance on such a sale may be e
xecuted by a
duly constituted attorney authorized generally.
RE TRUSTEES OF ST MARY'S HOSPITAL, LONDON, AND BALD [1915] VLR 218;
(1915) 36 ALT 146. (Vic Sup Ct, Hodges J).
462. Extent of trustees' power Power of selection Extent of Gift for wild
life
preservation .] A testator directed his trustees to hold his property upon the
following
trusts: "(a) for the benefit of the public of Australia to preserve animals (bei
ng mammals) and
birds indigenous to Australia but particularly to Victoria, and the indigenous f
lora that
provides cover food and general conditions suitable for the life habits and pres
ervation of
such animals and birds. (b) To foster support and improve, both for scientific a
nd educational
purposes, education knowledge and research in the origin history habits life and
use and the
scientific benefits (if any) of the mammals birds and flora specified in (a) and
the
relationship of one or more to the other". Held, that payment of the income of t
he trust might
under cll (a) and (b) be made to bodies other than schools or universities where
the
circumstances were such that the payment was a reasonable application of the tru
st money
towards the objects of the trust.
RE INGRAM [1951] VLR 424; [1951] ALR 900 (Vic Sup Ct, Smith J).
463. Extent of trustees' power Duty of executor .] A testator, by his infor
mally
prepared will, made the following provision. "I wish the rest of my property (in
vestments,
etc, etc) to be devoted to encouraging and supporting the study of natural histo
ry, under the
control of the University of Adelaide, or in case of inability some other Univer
sity. I should
wish the fund to be expended on some sort of laboratory or the furniture thereof
or its
maintenance for the scientific study of biology and comparative anatomy (animal
rather than
vegetable) in preference to scholarships. Perhaps it might serve to provide a nu
cleus for a
contribution towards an institution for the study of marine zoology; but the fie
ld is very
wide". Held, that it was the duty of the executor to satisfy itself that the Uni
versity of
Adelaide was able to control the fund.
RE BENHAM [1939] SASR 450 (SA Sup Ct, Richards J).
464. Extent of trustees' power Selection by remaining trustee .] V, by will
, appointed
two trustees, who were also two of the trustees of his son's will, under which h
e was entitled,
in the events which had happened, to the residue subject to an annuity to the so
n's widow. V
gave his estate to them upon trust that they, or the survivor of them, should co
nvert it and
distribute the final residue among charitable institutions. He gave his trustees
the absolute
discretion in the distribution as to which institutions should participate to th
e exclusion of
others, and in what manner and shares those participating should take; the trust
ees were also
empowered to retain the capital in their own hands, to apply the income to the
abovementioned objects or absolutely to hand over the capital without further re
sponsibility
to any persons or trustees representing all or any of such objects. The will con
tained a power
to appoint new trustees, and a codicil directed that if one trustee, R (a busine
ss man), should
die, the other trustee should appoint two men engaged in commercial pursuits as
additional
trustees, and if the other trustee, S (a solicitor), should die, R should appoin
t another solicitor
as trustee. R predeceased S and before appointing any other trustees S before th
e death of the
annuitant under the son's will, executed an indenture by which he "apportioned a
pplied and
dedicated" the investments set apart to produce the annuity to and among certain
charities,
appointed an executor company trustee of the indenture, and transferred the inve
stments to
this trustee, subject to the annuity to the son's widow. Shortly after S appoint
ed two new
trustees of the will of V, and transferred the trust estate to them jointly with
himself. These
three trustees executed a deed confirming the previous indenture. Some years aft
er these
transactions the sole surviving trustee of the son's will died, and the Public T
rustee, with the
consent of the Supreme Court, was appointed sole trustee of the son's will, and
all the estate
vested in the deceased trustee was assigned to it. Held: (1) The failure of S to
appoint new
trustees before executing the indenture did not invalidate it. (2) As S, being a
trustee of both
wills, had notice of the dealing, that the indenture conferred valid interests o
n the charities so
far as they satisfied the description of the objects intended to be benefited.
465. Extent of trustees' power Gift to public charities or public hospitals i
n Queensland .]
Held, that the trustees' power of selection was restricted to charities in Que
ensland and
might be used in relation to any charities or public hospitals which at the time
of selection
came within the relevant statutory definition of public charities or public hosp
itals in the
State.
Ct FC).
466. Power to supplement pay Masters of school on active military service .]
Held,
that the trustees of the Brisbane Grammar School had power to supplement the mil
itary pay
of assistant masters who had enlisted, or been called up by the military authori
ties.
In the Trusts of BRISBANE GRAMMAR SCHOOL [1942] QWN 21 (Q Sup Ct, EA Douglas
J).
467. Power to divert property to other purposes .] The trustees of the proper
ty of a fire
brigade, formed for the purpose of providing protection of life and property in
the City of
Newcastle from fire, held that property on a charitable trust for those purposes
and were not
entitled to convey it to the Newcastle Municipal Council for a municipal band an
d electrical
storeroom, or any other purpose which might lawfully be undertaken by the Counci
l. Where
such property had been conveyed to the Council, that body was ordered to convey
it to the
Board of Fire Commissioners to be applied for the purposes for which the brigade
was
formed.
A-G (NSW) V NEWCASTLE MUNICIPAL COUNCIL (1914) 2 LGR 83 (NSW Sup Ct,
Harvey J).
468. Power to divert property to other purposes .] The managers of a public c
haritable
trust have no power to relieve themselves of a responsibility by diverting its p
roperty from a
public and permanent purpose.
[(1885) 11 VLR 617 affd.]
469. Power to repair and alter Not extending to power to demolish .] Held,
that the
power given by a trust deed to enlarge, alter, repair and reinstate a church did
not extend to
authorize the demolition of the church and the erection of a new and larger chur
ch in its
place.
Re Trusts of CHURCH OF ST JUDE, BRIGHTON [1956] SASR 46. (SA Sup Ct, Hannan
AJ).
470. Duty to invest .] By will B, after leaving a house, furniture and a lega
cy of 200 to
his wife, directed his trustees to convert the residue and invest the proceeds;
the income to be
paid to his wife so long as she should remain his widow, and after her death or
second
marriage upon trust to pay legacies to relatives and charitable institutions, an
d to use the
remainder in their discretion until it was exhausted in assisting any two poor w
idows whom
they might from time to time select in paying their rent by allowing each of suc
h widows
four shillings per week. No widow whose rent should exceed 11 shillings per week
to be
eligible, and the widows to be residents of North Adelaide. His widow died, and
after
payments of legacies to relatives and charitable institutions were satisfied a s
um remained
which, if invested, would produce considerably more income than was necessary fo
r the
payment of the two sums of four shillings a week. Held, that, although the words
of the
clause creating the trust did not contain any indication that the money was to b
e invested, an
intention that the money should be invested could be gathered from the rest of t
he will, and
the trustees were bound to invest.
RE BOWER [1917] SALR 41 (SA Sup Ct, Murray CJ).
471. Duty to inquire as to application of funds Gift to unincorporated charit
able
institution .] A testator gave his estate to trustees, and then provided: "My
freehold
dwelling ... I give and devise to the `Pilgrims' Rest' ... managed by" A and his
wife "with fifty
pounds for repairs or alterations". He also gave mortgages, shares and money to
"the manager
of the said `Pilgrims' Rest' ". The "Pilgrims' Rest" was an unincorporated chari
table
institution, having specified objects, and solely maintained by voluntary contri
butions
subscribed by the public. Held, that the trustee should convey the real estate t
o A and his
wife, as joint tenants in fee, upon trust for the "Pilgrims' Rest"; that the 50 s
hould be paid to
the honorary treasurer of the institution on his receipt; that the proceeds of t
he mortgages and
shares should be paid to A on his receipt; and that the trustee need not inquire
into or concern
himself with the application of the money to be paid to the honorary treasurer o
r to A.
566. Designation of objects Payment to person who is one of community for who
se
benefit trust established Unsecured loans to beneficiaries .] Held: (1) It i
s inconsistent
with the notion of a charitable trust that payment be made out of the trust fund
to a person for
no reason other than that he or she is one of the community for whose benefit th
e trust was
established. Any such payment must be for a charitable purpose for the benefit o
f the
community, not just the person who receives the money. (2) Where the trust instr
ument
confers a power to make unsecured loans to beneficiaries, the trustees should ex
ercise the
same diligence and prudence as an ordinary business person would exercise in con
ducting his
or her own business when considering the making of any such loan.
FLYNN V MAMARIKA (1996) 130 FLR 218 (NT Sup Ct, Martin CJ).
[31] Divn 2. Vesting of Property
472. Public hospital Property held in trust for hospital Sole beneficiary
Active
trusts .] By s 19 of the Public Hospitals Act 1929 (NSW): "Upon the constituti
on of a
hospital as a body corporate by or under this Act, (a) all real and personal pro
perty which is
vested in or held by any person in trust for or on behalf of the hospital shall
become vested in
the said body corporate, subject to any trusts affecting the same; ... (c) the p
ersons in whom
any such property is vested shall take all steps and execute any documents neces
sary to
completely vest in the hospital all the property vested in them, and if trustees
of the hospital
shall vacate their office". Held: (1) Section 19 applies to any trust property o
f which a
hospital is the sole beneficiary, notwithstanding the existence of express trust
s with regard to
that property. (2) The trust property only vests in the hospital upon the execut
ion of the
necessary documents, and until so vested the powers of the original trustees rem
ain
unimpaired.
MCPHILLAMY V BATHURST HOSPITAL (1936) 53 WN (NSW) 134 (NSW Sup Ct,
Maughan AJ).
473. Public Charities Funds Act 1912 (SA) To what charities applicable Vest
ing of
gifts in Commissioner .] A testator directed his trustees to invest his residu
ary estate and
to pay the income to the Adelaide Hospital and the Adelaide Children's Hospital
in equal
shares, "provided and I hereby direct that from and after the death of all of my
trustees the
said investments shall be under the care control and management of the respectiv
e trustees of
the said two hospitals they to continue such investments and pay the net annual
income
therefrom in such manner as if my trustees had not died". Held: (1) As to the be
quest to the
Children's Hospital, one moiety of the investments was to be held by the trustee
s named in
the will until the death or retirement of the surviving trustee, and the investm
ents were then
to be assigned to the trustees of the Children's Hospital to be continued as a p
ermanent
endowment. (2) As to the bequest to the Adelaide Hospital, that this hospital is
an institution
"established" under or pursuant to Act of Parliament and, accordingly, subject t
o the
provisions of the Public Charities Funds Act 1912. (3) The trustees should assig
n the moiety
of residue held in trust for the Adelaide Hospital to the Commissioner of Charit
able Funds
pursuant to s 8 of the Public Charities Funds Act 1912. "Establish" in s 2 of th
is Act includes
the setting up upon a permanent basis or as a public institution an institution
which up to that
time had not been established on that basis.
RE LOMMAN [1934] SASR 222 (SA Sup Ct, Napier J).
[32-35] Pt V. Administration and Control by Court.
[32-33] Divn 1. Generally
[32] A. Jurisdiction and What may be Sanctioned or Ordered
474. Jurisdiction of court generally Effect of special statutes giving truste
es powers of
variation .] Although by reason of the wide powers conferred upon Synod by s 3
2 of the
Church of England Trust Property Act 1917 (NSW) in respect to the variation of t
rusts, it is
improbable that the Court of Equity will continue to exercise its cy-pres jurisd
iction in
respect to charitable trusts coming within the operation of that Act, neverthele
ss the court has
jurisdiction to entertain informations the object of which is to complain of bre
aches of such
trusts and to administer the same, and will not decline to exercise such jurisdi
ction except for
good cause shown.
A-G (NSW) V CHURCH OF ENGLAND PROPERTY TRUST DIOCESE OF SYDNEY
(1933) 34 SR (NSW) 36; 50 WN 241 (NSW Sup Ct, Long Innes J).
475. Jurisdiction of court generally Provident administration Land separate
ly settled in
trust as site for church and parsonage Application for authority to sell porti
on of land and
apply proceeds towards repair and improvement of parsonage .] Under a declarat
ion of
trust land was held by a trust corporation "in trust as the site of a church", t
o be used for the
performance of the services of a religious denomination. The same corporation he
ld under
another declaration of trust an adjoining piece of land "in trust as land to be
used in
connection with and as appurtenant to the land adjoining thereto", being the lan
d held under
the former trust mentioned. Under a third declaration of trust the same trustee
held a third
piece of land, also adjoining that first, "in trust for the residence or parsona
ge" of the minister
of the church. The instruments of trust contained no power of sale. On an applic
ation by the
trustee for the court's sanction to the sale of the land secondly mentioned, and
the application
of the proceeds of sale to the repair of the parsonage on the land lastly mentio
ned, Held, that
the sale suggested would not be a provident administration of the trust property
and,
therefore, could not be sanctioned.
note, 8
ALJ 329.]
476. Power to vary trust .] Per Latham CJ Property devoted to a charitable
trust must
be used for the purposes, and only for the purposes, of the trust. Changes in ci
rcumstances
may make it probable that the founder of the trust would, if he had been able to
do so, have
varied the terms of the trust for the purpose of meeting conditions created by s
uch new
circumstances. But when proceedings are instituted in a court for the purpose of
securing the
performance of such a trust there is no authority in the court to vary the origi
nal foundation.
WYLDE V A-G (NSW) (1948) 78 CLR 224; 22 ALJ 483; 49 SR (NSW) 113; 66 WN 47;
[1949] ALR 153 (HC).
477. Power to vary trust .] In 1933 parcels of land were transferred to a Cou
ncil by the
trustee of a will upon condition that the Council execute a declaration of trust
for specified
purposes; one of the terms of the declaration of trust was that the Council woul
d keep the
land as far as might be reasonably practicable in its natural state, and cl 3(a)
provided that no
games should be played on the land on Sundays which might materially interfere w
ith its use
and enjoyment by the public. The Council was to make by-laws to enforce the cond
itions.
Held: (1) The clause was not void although the Council had no power to make by-l
aws such
as the declaration of trust required. (2) The land was a public reserve within t
he meaning of
the Local Government Act 1919 (NSW). (3) The court was not entitled to vary the
terms of
the trust so as to empower the Council to permit the playing of games on the lan
d contrary to
the provisions of cl 3 of the declaration of trust.
[(1953) 19 LGR 105 varied.]
KU-RING-GAI MUNICIPAL COUNCIL V A-G (NSW) (1954) 55 SR (NSW) 65; 72 WN 8;
19 LGR 263 (NSW Sup Ct FC). [Discussed in note, 28 ALJ 576, 578.]
478. Power to vary trust Provision for country church .] A testator direct
ed that a sum
should be held upon trusts for the payment of a stipend to the rector of a count
ry church; for
the cleaning of the church and the provision of sanctuary lights; and for the ma
intenance of a
church choir. The carrying out of the trusts in accordance with those directions
having
become impracticable, the trustee applied to the Supreme Court for an order appr
oving the
variation of the trusts. Held, that the court had no power to make such an order
under s 59b
of the Trustee Act 1936 (SA), but had power under s 67 to direct that a scheme s
hould be
prepared for the administration of the trusts cy-pres.
RE DUTTON [1968] SASR 295 (SA Sup Ct, Mitchell J).
479. Power to make orders for payment Appearance of Attorney General represen
ting
public .] Where the Attorney-General appears as representing the public in a s
uit for the
administration of the charitable trusts of a will, the court will adopt any cond
ition as to the
payment of the money which he sees fit to impose; but where he imposes no condit
ions the
court will recognize the representatives of the institutions as being the person
s entitled under
the will, and will order payment of the money to the managers of the respective
departments
of the institutions named in the will.
TREACY V WATSON (1884) 10 VLR (E) 96; 5 ALT 201 (Vic Sup Ct, Molesworth J).
480. Power to interfere with trustees' decision Trust for prize for portraitu
re .] Under
the terms of a will portion of the testator's estate was held on trust to pay th
e income to
provide an annual prize for the best portrait preferentially of some person dist
inguished in
art, letters, science or politics painted by any artist resident in Australia. I
n 1943 the trustees
by a majority awarded the prize to D for his submission of a portrait of a man "
distinguished
in art". In a suit by way of information an injunction was sought to prevent pay
ment of the
prize money and a declaration was prayed that the determination of the trustees
was
unauthorized by the terms of the trust and void. Held, that under the terms of t
he trust the
question whether a particular painting was a portrait had been submitted to the
trustees of the
art gallery for decision, and that the decision of the trustees on that question
was only open to
attack upon the ground that it was not a bona fide decision. In the absence of a
n allegation of
actual fraud, before the court could interfere it must be satisfied that as a ma
tter of objective
fact, and not of mere opinion, the painting was not a portrait, so that the opin
ion formed by
the trustees to the contrary was founded upon a wrong basis of fact and was not
truly an
opinion upon the question to which the minds of the trustees should have been di
rected.
A-G (NSW) V TRUSTEES OF NATIONAL ART GALLERY (NSW) (1944) 62 WN (NSW)
212 (NSW Sup Ct, Roper J).
481. Inquiry into impracticability of objects Time at which order should be m
ade .]
Held: (1) In order to determine whether a charitable trust is impracticable as a
t the date of
death the relevant inquiry is not only whether it was impossible at that date to
use the
charitable fund for the purpose immediately but also whether there was at that d
ate no
reasonable prospect of its becoming possible so to use the fund at any future ti
me. (2) An
inquiry into practicability should not be ordered by the court until the trustee
should have
reached the point of concluding that it could not see any way of obeying the pre
cise
directions of the will. The kind of establishment that would be needed to satisf
y the terms of
the trust considered.
[[1963] SASR 173 affd.]
482. Inquiry into impracticability of objects Gift to Church of England for h
ospital in
diocese .] By will a spinster, EP, who died in 1941, gave the balance of her r
esiduary
estate "for the Church of England in the Diocese of Adelaide absolutely for the
benefit of the
Sunday School Council and a Diocesan Church of England Hospital in equal shares"
. Her
sister, GP, who died in 1958, by will made in the same year gave her residuary e
state "for the
Synod of the Church of England in the Diocese of Adelaide Incorporated for the f
und to
establish and/or maintain a Church of England Hospital absolutely". Another sist
er, VP, died
in 1963, and by will made in 1962 gave her residuary estate in similar terms to
the gift
contained in the latter will. There was no Diocesan Church of England Hospital,
although a
convalescent hospital, and homes for the aged which provided nursing attention f
or inmates
of the homes, were conducted under the auspices of the Church of England. Held:
(1) It was
permissible to use the will of EP as a guide to the construction of the will of
GP, and the
wills of EP and GP as a guide to the construction of will of VP, and reading the
three wills in
this way the intention of all testatrices was to create a fund for the establish
ment of a new
hospital, and not to benefit any of the existing institutions, conducted under t
he auspices of
the Church of England. Meaning of the term "hospital" considered. (2) The gifts
for the
creation of such a fund were valid charitable gifts. (3) Upon the evidence befor
e the court it
was not possible to say whether it was practicable for the trusts created by the
three wills to
be carried out, and the Synod of the Church of England in the Diocese of Adelaid
e should be
required to indicate whether it was willing to accept the gifts on trust to esta
blish and
maintain a general Church of England hospital.
Sup Ct, Bray CJ).
483. Inquiry into impracticability of objects Fund to build homes for aged an
d infirm
persons in particular place .] A testator gave the net income from his residua
ry estate to
his wife EH and her sister MW in equal shares during their lifetime, "and when o
ne shall die
then the survivor shall receive half of the nett income until her death". He dir
ected his
trustees to hold the balance of his estate intact for ten years from the death o
f the last
survivor, either EH or MW, and then to realize his estate and apply the proceeds
to a fund in
memory of his deceased daughter. This fund was to be used to build homes for age
d and
infirm persons in a particular place. The testator left "all details of this fun
d" and "authority
generally" with his trustees absolutely. MW, the last survivor, died on 30 July
1966. Held: (1)
The half share of income accruing from the estate from the death of EH until the
death of
MW was intended to form part of his residuary estate and become part of the fund
created in
memory of his daughter. (2) The income of the estate after 21 years from the dea
th of the
testator, the direction for accumulation of which failed as contrary to the Law
and Property
Act 1936 (SA), s 60, was effectively given to the charitable fund and the court
could
authorize the application of the residuary estate and income to the purposes whi
ch the
testator intended at the expiry of the 21 year period rather than at the later t
ime contemplated
under the will. (3) The will contemplated that the fund should be administered b
y the
trustees, and accordingly the court could not direct that it be handed over to a
nother party for
administration (as was requested by the trustees) unless the precise scheme dire
cted by the
will failed by reason of impracticability. (4) There should be an inquiry whethe
r at the date
of death of the testator it was practicable to carry the intentions of the testa
tor into effect, or
whether at that date there was any reasonable prospect that it would be practica
ble to do so at
some future time limited to the period expiring 21 years from the date of death
of the
testator, and if upon inquiry the trust were found to fail for impracticability
then it would be
necessary to consider whether the fund should be applied cy-pres.
RE HART (1972) 3 SASR 147 (SA Sup Ct, Mitchell J).
484. Sanction of sale of land .] Held, that the court could order the sale of
land the
subject of a charitable trust.
HIXON V CAMPBELL (1924) 24 SR (NSW) 436; 41 WN 104 (NSW Sup Ct, Maughan AJ).
485. Sanction of sale of land No power in trustees to sell .] Where land i
s held in trust
for a charity under a settlement which does not contain a power of sale the cour
t will not
authorize a sale merely because it would be of advantage to the charity; it must
be shown that
the departure from the terms of the trust is necessary for the provident adminis
tration of the
fund for the benefit of the charity.
note, 8
ALJ 329.]
486. Sanction of sale of land Land held in trust for church purposes Unsui
tability for
purpose Power of court to authorize sale .] The court has power to order a s
ale of land
settled on charitable trusts where the land has become unsuitable for the specif
ied purposes
of the trust.
RE POWLETT'S TRUSTS [1915] VLR 115; (1915) 36 ALT 147 (Vic Sup Ct, Hodges J).
487. Sanction of exchange of land .] An exchange of land held on a public cha
ritable trust
which could be sanctioned in an administration suit may be sanctioned on an orig
inating
summons under s 47 of the Trustee Act 1898 (Tas) or on petition under RSC. 1958
(Tas), O.
LXIV.
MUNICIPALITY OF DEVONPORT V A-G (TAS) [1964] Tas SR (NC) 10 (Tas Sup Ct,
Gibson J).
488. Sanction of long lease .] The applicants were trustees of a charitable t
rust
constituted to promote scientific and economic research in connexion with the wh
eat
industry. They acquired land which, as a result of co-operation with the Univers
ity of
Sydney, had been developed into a wheat research institute. There had been a red
uction of
trust income such that it was no longer practicable for them to carry on the act
ivities of the
institute as formerly. The university had funds available for the institute, but
required as a
condition that it should receive a long lease of the land. It was proposed that
there should be
an advisory council, of which six of the trustees would be members, to advise th
e university
on the conduct of wheat research at the institute. The trustees applied to the c
ourt under s 81
of the Trustee Act 1925 (NSW), for an order empowering them to lease the propert
y as
proposed. Held: (1) The Trustee Act 1925, s 81, applies to charitable trusts and
the court can
by means of it vary the powers of trustees of charitable trusts in a proper case
. In its
application to charitable trusts the jurisdiction conferred by s 81 is no less e
xtensive than
when applied to private trusts. (2) To empower the trustees to enter into the pr
oposed lease
was to enable an act to be done in the management of the trust property which di
d not permit
the trustees to go outside the charitable purpose as embraced in the defined obj
ects of the
trust, it was not to alter the whole nature of the trust, and the case was a pro
per one for an
order under s 81 of the Act.
FREEMAN V A-G (NSW) [1973] 1 NSWLR 729 (NSW Sup Ct, Helsham J).
489. Sanction of mortgage .] When land is held upon a charitable trust, which
contemplates its permanent retention, and there is no express power to mortgage
the land, the
court will not give its sanction to a mortgage unless satisfied that a mortgage
will be not
merely beneficial, but necessary for the carrying into effect of the trust. Busi
ness expediency
is insufficient. In 1911 a settlor conveyed to a trustee land upon which was a r
esidence, upon
trust to permit the Church of England Mission to the Streets and Lanes of Melbou
rne to use it
for such purposes as the warden and head sister of the Mission should deem exped
ient. The
conveyance contained a proviso that the Mission should not sell, lease or mortga
ge the land,
the intent being that it should be used for all time for the purposes for which
the Mission had
been established. Those purposes consisted mainly in attending to and visiting t
he sick
among the poorer classes, and attending to their spiritual wants. The Mission us
ed the
building as an intermediate hospital, which was supported by the fees of patient
s, any profits
being applied towards the improvement and equipment of the hospital. The buildin
g was
inadequate and unsuited to the requirements of a modern hospital. The Mission ap
plied to the
court for an order empowering the trustee to raise by mortgage a sum for the pur
pose of
reconstructing the building. Held, that the application must be refused, since i
t had not been
shown that the land could not without the mortgage be used for the purposes for
which the
Mission had been established.
RE HUGHES; THORNTON V CHURCH OF ENGLAND TRUSTS CORPORATION FOR
DIOCESE OF MELBOURNE [1934] VLR 345; [1935] ALR 19 (Vic Sup Ct, Mann J).
490. Sanction of ex gratia payment .] On an application for the winding up of
a charitable
organization and approval of a cy-pres scheme, the trustees sought an order that
, in
consideration of her long and faithful service to the charity, the secretary rec
eive an ex gratia
payment of $50,000 from the trust funds. Held: (1) The Supreme Court of New Sout
h Wales
in its Equity Division and the Attorney-General, as an independent officer charg
ed with the
protection of charities, have power to give authority to charity trustees to mak
e ex gratia
payments out of funds held upon charitable trust. (2) The power ought not to be
exercised
lightly or on slender grounds but only in cases where it can be fairly said that
if the charity
were an individual it would be morally wrong for him to refuse to make the payme
nt. (3) The
court is also entitled to have regard to the trustees' own feelings if they hold
a genuine sense
of moral obligation and there is no reason to doubt the honesty and weight of th
ese feelings.
(4) The court ought to accept the judgment of the trustees and approve the payme
nt.
HOBDAY V A-G (NSW) [1982] 1 NSWLR 160 (NSW Sup Ct, Holland J).
491. Sanction of compromise .] In case of its being doubtful whether an insti
tution has
ceased to exist, the court may sanction a compromise made bona fide between pers
ons who,
by order of a judge, represent the institution and the next of kin respectively.

IN THE WILL OF HAINES; PINCOTT V FARRINGTON (1892) 18 VLR 553; 14 ALT 35
(Vic Sup Ct, a'Beckett J).
492. Sanction of compromise Consent of Attorney-General .] A testator left
a house
and land known as "Goodrest" together with furniture to Melbourne Hospital upon
trust "to
be used for hospital purposes and as a convalescent home for the convalescent pa
tients of the
said hospital" with power to the trustees of the hospital to alter and repair an
d erect buildings
on the land provided that the land and improvements should be maintained and kep
t by the
trustees of the hospital "for hospital purposes and as a convalescent home as he
reinbefore
specified and for such purposes only". There was a gift of the testator's residu
ary estate. To
make "Goodrest" suitable for hospital purposes or for a convalescent home would
have
required a great deal of money. The trustees of Melbourne Hospital had no money
for those
purposes and, being engaged in erecting new hospital buildings, were unable to d
ecide
whether to take the gift. They then entered into an agreement with the persons e
ntitled under
the gift of the residue to sell "Goodrest" and divide the proceeds into two ha
lf to go to
Melbourne Hospital to be applied for hospital purposes, and the other half to go
into the
residuary estate. Held, that the court had jurisdiction to sanction the compromi
se and, the
compromise being modified so as to provide that the moiety going to Melbourne Ho
spital
should be spent in the erection of a building for convalescent hospital patients
, and the
Attorney-General consenting to the compromise, that the sanction of the court sh
ould be
given.
IN THE WILL OF BUCKHURST; MELBOURNE HOSPITAL V EQUITY TRUSTEES,
EXECUTORS & AGENCY CO LTD [1911] VLR 61; (1910) 32 ALT 165; 17 ALR 63 (Vic
Sup Ct, Cussen J).
[33] B. Settlement of Schemes
493. General principles .] Circumstances in which a scheme should be settled,
considered.
RE INGRAM [1951] VLR 424; [1951] ALR 900 (Vic Sup Ct, Smith J).
42; [1951] ALR 64 (Vic Sup Ct, Smith J).
494. General principles .] When there are no named trustees who are to govern
the
administration and no detailed directions given for administration of the fund,
it is necessary
to settle a scheme.
[(1921) 21 SR (NSW) 450; 38 WN 118 affd.]
68 SJ 419 (PC).
495. General principles .] A testator by a holograph home-made will disposed
of the
residue of his estate by the words "& the remainder to be divided equally betwee
n the
following charities, Spasdick Cldren Society NSW & the deaf Dum & Blind Society
of NSW
...". It was conceded that the gift to the first mentioned society was a valid g
ift of half the
residue to an existing institution. Held: (1) From what appeared in the will and
the evidence,
the gift of the other half of the residue was not to the Royal New South Wales I
nstitute for
Deaf and Blind Children, but to an institution which did not exist, and accordin
gly it failed.
(2) The will showed a general charitable intention. (3) In settling a cy-pres sc
heme, the court
should give effect as closely as possible to the intention evident from the will
, and
accordingly half of the residue should be divided equally between the abovementi
oned
institution, the Adult Deaf Society and the Royal Blind Society.
MCCORMACK V STEVENS [1978] 2 NSWLR 517 (NSW Sup Ct, Kearney J).
496. Trust to be carried out in foreign country .] Held, that the fact that a
trust was to be
carried out in a foreign country was not a bar to the settlement of a scheme by
the court.
497. Administrative scheme Gift to trustees of charities having no trustees .
] The will
of a testator contained the following clause: "As to the balance of my real and
personal estate
not hereinbefore specially devised or bequeathed I direct that my said trustees
shall sell and
convert into money such portion thereof as shall consist of money or securities
for money.
And that the whole of such balance shall be divided into three equal parts one o
f which be
paid or transferred to the said diocesan trustees of the Church of England in We
stern
Australia a second to the trustees for the time being of the hospitals and lunat
ic asylums in
the said colony to be divided among them equally and the third to the trustees o
f the poor
houses in the said colony". Held, that although the Government Lunatic Asylum wa
s the only
one in existence and had no trustees, it was entitled to share pari passu with h
ospitals, as
defined in Re Will and Codicil of Padbury; Home of Peace for Dying & Incurable v
.
Solicitor-General (WA) ((1908) 7 CLR 680), the words "trustees of" being an erro
neous
addition to an adequate and sufficient description with convenient certainty of
what was
meant. The words "Poor Houses" designated government institutions of that name t
o the
exclusion of private charities. Held, therefore, as to both cases, that trustees
should be
appointed by the court, and that the bequest, so far as it relates to the instit
utions now held to
be benefited, should be dispensed under a scheme to be settled by a judge, under
which the
money would be used for the benefit of the inmates, and not to help the governme
nt in its
ordinary expenditure.
(1909) 9 CLR 757; 16 ALR 70 (HC).
498. Administrative scheme Gift to Repatriation Fund for benefit of New South
Wales
returned soldiers No such fund in existence .] In order that a gift not bein
g for the relief
of poverty, or the advancement of education or religion, may constitute a valid
charitable
trust, it must be for the benefit of the community, or of an appreciably importa
nt class of the
community, and need not be confined to poor persons only. Therefore, a bequest t
o "the
trustees of the Repatriation Fund, or other similar fund for the benefit of New
South Wales
returned soldiers" is a good charitable bequest; but as there was not a repatria
tion fund in
existence for the benefit of New South Wales returned soldiers exclusively, Held
, that a
scheme should be settled for the administration of the trust.
[(1921) 21 SR (NSW) 450; 38 WN 118 affd.]
68 SJ 419 (PC).
499. Administrative scheme No named body for carrying out designated object
Gift
for "cancer research" .] A testator provided that the residue of his estate sh
ould be held
upon trust for three specific Presbyterian Church bodies and "for cancer researc
h". The only
body in Queensland devoting itself to cancer research was the University of Quee
nsland.
Held, that a gift for "cancer research" was clearly charitable, and that a schem
e that
one-fourth part of the residue be given to the University of Queensland for the
purpose of
being applied in carrying out research into cancer be approved.
RE SIMPSON [1961] QWN 50 (Q Sup Ct, Gibbs J).
500. Admissibility of evidence Extrinsic evidence of intention of creator of
trust .] A
testatrix left the residue of her estate upon trust "in pursuance of my charitab
le intentions to
benefit generally my fellow citizens by the improvement of Biblical Knowledge an
d
instruction to establish a Church to be known as St Michael's the Church of Jesu
s Christ the
King of Kings ... And I direct that the main purpose of such Church is to furthe
r study of the
Bible". In proceedings between the interested parties it was held that it was im
practicable to
give effect to establishment of the church but that the will exhibited a more ge
neral
charitable intention. In considering which of several was the more appropriate s
cheme, a
witness gave his opinion as to the reaction of the testatrix to the schemes. Hel
d: (1) The
evidence of the witness was relevant and admissible. (2) Independently of the te
stimony of
the witness, the scheme for payment of the residuary estate to seminaries was no
t a scheme
cy-pres to the testatrix's intention.
PHILLIPS V ROBERTS [1975] 2 NSWLR 207 (NSW Sup Ct CA).
501. Jurisdiction of judge in chambers .] The trustees of a charity, the obje
cts of which
had failed and the founders of which were dead, applied on summons for leave to
pay over
the funds to two institutions having objects similar to those of the original ch
arity. Held, that
there was no jurisdiction under ss 43 and 45 of the Trustee Act 1898 (Tas) eithe
r (a) to
approve a scheme as under a clearly declared and workable trust, or (b) to appro
ve a cy-pres
scheme. A judge at chambers cannot approve a scheme until the court has recogniz
ed the
charity and directed a scheme to be prepared.
RE SERVANT'S HOME; Ex parte ATKINS (1912) 8 Tas LR 25 (Tas Sup Ct, Nicholls J).
502. Variation of scheme Jurisdiction of court .] A testator provided for t
he
establishment of a charitable trust for the provision of homes for poor widows;
and the
Supreme Court approved a scheme for the administration of the trust by the Publi
c Trustee.
A number of homes for poor widows were provided, and the trust was administered
for many
years by the Public Trustee. The funds of the trust being insufficient to provid
e for necessary
maintenance and renovation of the homes, application was made to the Supreme Cou
rt for
approval of a variation of the scheme whereby the homes would be transferred to
the South
Australian Housing Trust, which was willing to accept the homes, carry out neces
sary
maintenance and renovation, and administer the trust in future. Held: (1) The Su
preme Court
had jurisdiction to approve of the proposed variation of the scheme. Attorney-Ge
neral v
Bishop of Worcester (1851) 9 Hare 328 (68 ER 530) and Attorney-General v St John
's
Hospital, Bath (1865) LR 1 Ch App 92 applied. (2) The South Australian Housing T
rust had
power, under s 29a of the South Australian Housing Trust Act 1936 (SA), to accep
t the
transfer of the homes and administer the trust; and approval should be given to
the variation
of the scheme accordingly.
In the Estate of Bower (1980) 25 SASR 161 (SA Sup Ct, Mitchell J).
503. Scheme not required Gift for scholarship at charitable institution Pay
ment upon
resolution by institution that money applied for specified purpose .] A person
who endows
a close scholarship in a college of the Sydney University must be taken to know
the rules and
course and procedure of the college; and the statutes governing it. A testator d
irected his
executors "to expend the sum of 1,000 in a scholarship in St Andrew's College, Sy
dney, to
be designated the Coutts scholarship, for the benefit of candidates of the name
of Coutts; but
should there at any time be no candidate of that name, then for any deserving yo
ung man of
any other name". Held, that the court would not direct a scheme, but that the ex
ecutors
should pay the money to the college on a declaration supported by a resolution o
f the council
that the money was received for the foundation of a scholarship as contemplated
by the
testator.
WHITE V ST ANDREW'S COLLEGE (1886) 7 LR (NSW) Eq 40 (NSW Sup Ct, Manning PJ
in Eq).
504. Scheme not required Small gift Gift to clergyman for time being Paym
ent
upon undertaking of church to apply funds for charitable purposes and keep accou
nts .]
The court will never permit a charitable legacy to come into the hands of one pe
rson who
happens to fill a church office described in the will, but will take care to sec
ure the objects of
the testator by the creation of a proper and permanent trust and the usual cours
e was to send
the case to the Master for the purpose of settling a scheme, the Attorney-Genera
l attending
the Master at the settlement. Where the fund is small and the persons to be bene
fited clearly
ascertained it is desirable to save the cost of a reference and it may be direct
ed that the
money be handed over to some permanent officer of the church upon his signing an
undertaking to apply it as directed by the will and to keep proper accounts.
NATIONAL TRUSTEES CO V A-G (VIC) (1902) 9 ALR (CN) 5 (Vic Sup Ct, a'Beckett J).
505. Scheme not required Small gift Two possible beneficiaries .] A testa
trix
bequeathed 1,000 to "any hospital in Queensland in existence at the date of my de
ath
controlled by The Queensland Conference of the Methodist Church of Australasia .
..". There
were two hospitals at that date which were directly controlled by the Conference
and a
number of others under some indirect control. Held: (1) The word "any" was used
in a
singular sense and the testatrix did not intend to benefit more than one hospita
l. (2) In the
context the word "controlled" meant under the more or less direct control of the
Conference.
(3) The bequest to a hospital was prima facie a charitable bequest and the legac
y being a
small one no good purpose would be served by requiring a cy-pres scheme and the
sensible
course was for the two hospitals to share the legacy equally.
RE FOWLES [1968] QWN 49 (Q Sup Ct, Hoare J).
567. Lapsed bequest Right to object Right to be heard Alternative charita
ble bodies
.] Held: (1) When considering whether to approve a scheme under the Charitable
Trusts
Act 1962 (WA), s 9, if it is possible, the court will require the trustee to dev
ise a scheme
having a close resemblance to the old trust even though a cy-pres approach is no
t mandatory.
(2) Charitable organizations which might be included in an alternative scheme ha
ve a
sufficient interest to object pursuant to s 15. (3) The fact the objectors claim
ed a closer
resemblance to the original trust than those in the alternative scheme was not a
valid basis
for objection and did not entitle the objectors to be heard.
PENNY V CANCER & PATHALOGICAL [sic] RESEARCH INSTITUTE (WA) (1994) 13
WAR 314 (WA Sup Ct, Anderson J).
[34-35] Divn 2. Parties
[34] A. Attorney-General
506. General principles .] Observations on the joinder of the Attorney-Genera
l as a
defendant in proceedings relating to gifts to charities.
IN THE WILL OF WRIGHT; WESTLEY V MELBOURNE HOSPITAL [1917] VLR 127;
(1916) 38 ALT 150; 23 ALR 42 (Vic Sup Ct FC).
507. General principles .] It is not necessary that the Attorney-General shou
ld be joined
in every case involving a charity. Where there is no question as to the conduct
or
management of the charity but only whether the charity is entitled to a particul
ar legacy or
not, it is preferable that the charity itself should appear rather than the Atto
rney-General
should represent it.
508. General principles Proceedings under Trustee Act 1958 (Vic), s 63 .]
Where an
application under s 63 of the Trustee Act 1958 (Vic) involved merely the formula
tion or
amendment of a scheme for the administration of a trust, or a modification of th
e trustee's
powers of investment, the Attorney-General was usually the only defendant necess
ary since
he would adequately represent all of the charities entitled under the trust. How
ever where
there were questions as to the construction of the will or the entitlements of t
he charities, it
might be necessary to join them as parties so that their competing interests wou
ld be
represented. Observations as to the information to be furnished to charities whe
re it was not
intended to join them as parties in applications.
NATIONAL TRUSTEES EXECUTORS & AGENCY CO OF A/ASIA LTD V A-G (VIC)
[1978] VR 374 (Vic Sup Ct, McInerney J).
509. Proceedings to determine validity Of gift to institution .] The well-e
stablished
rules as to joinder of parties, including the rules relating to the joinder of t
he
Attorney-General in a suit relating to the validity of a gift to a specific inst
itution, and to the
joinder of an official of an institution by his individual name and the making o
f a
representative order, ought always to be strictly observed.
GROVENOR V PERMANENT TRUSTEE CO OF NSW LTD (1966) 40 ALJR 329 (HC).
510. Proceedings to determine validity Of trust .] The Attorney-General is
a necessary
party to proceedings to determine the validity of a trust for general charitable
purposes where
the plaintiff impeaches the validity of the trust, even when the trustees appoin
ted by the
donor disclaim all beneficial interest.
GALLIGAN V MAHER (1902) 19 WN (NSW) 299 (NSW Sup Ct, Simpson CJ in Eq).
511. Proceedings for administration of trusts Action for breach of Church of
England
trusts .] The trusts created by the Church of England Acts 7 Wm IV No 3 and 8
Wm IV
No 5 (NSW) are public trusts for charitable purposes and therefore the Attorney-
General has
a locus standi to inform the court of a breach of such trusts.
A-G (NSW) V TRY (1891) 12 LR (NSW) Eq 23 (NSW Sup Ct, Foster J).
512. Proceedings for administration of trusts Action to enforce Church of Eng
land trusts
.] Necessity of making the Attorney-General party to proceedings affecting chu
rch
property and the propriety of making a declaratory order in his absence, discuss
ed.
GENT V ROBIN [1958] SASR 328 (SA Sup Ct, Piper AJ).
513. Suit relating to charity outside jurisdiction .] Held, that the Attorney
-General should
have been a party to proceedings for the determination of the validity of a gift
"for the
Kytherian Association of Queensland upon trust for the erection and/or benefit o
f a
Sanatorium and/or Hospital" in a foreign country.
514. Suit relating to charity outside jurisdiction .] In a suit to ascertain
the true
construction and effect of a bequest by will to a charity in England, the Attorn
ey-General for
New South Wales is a proper party and the Attorney-General for England need not
be joined.
PERPETUAL TRUSTEE CO LTD V TAYLOR (1915) 32 WN (NSW) 106 (NSW Sup Ct,
Simpson CJ in Eq).
515. Suit relating to charity outside jurisdiction .] In a suit relating to a
bequest by will to
a charity in New South Wales the Attorney-General for Victoria is a proper party
. The
Attorney-General for New South Wales should not be joined as a party.
RE ZUNDOLOVICH; PERPETUAL EXECUTORS & TRUSTEES ASSOCIATION OF
AUSTRALIA LTD V GALLAGHER [1938] VLR 57; [1938] ALR (CN) 550 (Vic Sup Ct,
Macfarlan J).
516. Proceedings to determine entitlement To trust money .] Land held upon
trust for
"Church of England purposes" in certain districts was sold. Held, that the incum
bents and
church wardens of the parishes in which those districts were included had no pow
er to make
a binding agreement as to how the purchase money should be applied, and that in
a suit to
determine how the money should be applied the Attorney-General was a necessary p
arty.
BISHOP OF NEWCASTLE V WALKER (1898) 14 WN (NSW) 191 (NSW Sup Ct, AH
Simpson J).
517. To property .] The Attorney-General is not a necessary party in proceedi
ngs in which
an existing charity, whether incorporated or not, is seeking to recover property
to which it
claims to be entitled, or to protect property in which it claims an actual or co
ntingent interest.
Thus where a charity applied to the court to make an order declaring its interes
t in certain
names, and an order restraining defendants from dealing with those names contrar
y to the
interest so declared, Held, that it was not necessary that the Attorney-General
should be a
party, either as plaintiff or defendant.
UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) V MONSEN [1978] 1
NSWLR 575 (NSW Sup Ct, Rath J). [Discussed in note, 53 ALJ 851.]
518. Setting aside sale of trust property Necessity for relator .] Trustees
of a public
charity conveyed the trust premises (an inebriate asylum) to M, the medical supe
rintendent,
who was one of the committee of management, in consideration of his undertaking
to
discharge all the debts of the institution. Held, that the Attorney-General coul
d, without a
relator, maintain an action to set aside such conveyance, and M could be ordered
to reconvey
to trustees for the charity, they paying him what should be found due to him as
a creditor of
the charity.
A-G (VIC) V M'CARTHY (1885) 11 VLR 617 (Vic Sup Ct, Molesworth J).
519. Petition under Sir Samuel Romilly's Act .] In view of the magnitude of t
he sum
involved and to save expense, the court directed the Attorney-General to be made
a party to a
petition under Sir Samuel Romilly's Act and the Public Works Act 1900 (NSW), pra
ying for
the payment out of court of resumption money of land which, at the date of resum
ption, was
held upon charitable trusts, for the purpose of applying the money on a cy-pres
scheme.
RE PRESBYTERIAN CHURCH OF NEW SOUTH WALES (1903) 20 WN (NSW) 127
(NSW Sup Ct, Simpson CJ in Eq).
520. Settlement of scheme Rights and duties .] Held, that on the settlement
of a
scheme cy-pres the Attorney-General represents the charity, and that it is his r
ight and duty to
assist the court in the matter of such settlement.
RE DAVIES (1940) 58 WN (NSW) 35 (NSW Sup Ct, Roper J). [Discussed in note, 14 AL
J
424.]
521. Presentation of information by Solicitor-General Office of Attorney-Gene
ral not
vacant New South Wales .] In a suit by information for the administration of
religious
charitable trusts, the information in the absence of the Attorney-General was pr
esented by the
Solicitor-General. The defendant submitted that the court in its equitable juris
diction had no
jurisdiction to entertain, and the Solicitor-General had no locus standi to pres
ent, the
information. Before adjudication on those points application was made to amend t
he petition
by substituting the name of the Attorney-General for that of the Solicitor-Gener
al as
informant. The court held that the Solicitor-General was not necessarily incompe
tent to
present the petition, and granted leave to amend. Held: (1) The mere fact that a
n information
by the Solicitor-General was filed when the office of Attorney-General was not v
acant (a fact
of which judicial notice rightly should be taken) did not necessarily show that
it had been
filed without proper authority. (2) The question whether the Solicitor-General h
ad in fact
been authorized to file the information was one which could not be raised as a d
efence to the
suit, but should have been raised only by an independent application challenging
his
authority. (3) Leave to amend the information had not been improperly granted.
[LR by HC see (1945) 70 CLR 657 (note); 45 SR (NSW) 386(note); 62 WN 258(note)
.]
[Further proceedings see (1946) 47 SR (NSW) 99; 63 WN 222.]
SOLICITOR-GENERAL V WYLDE (1945) 46 SR (NSW) 83; 62 WN 246 (NSW Sup Ct
FC).
522. Presentation of information by Solicitor-General Ratification New Sout
h Wales .]
Where the Solicitor-General, without having received an ad hoc authority from
the
Crown, had filed an information seeking the administration by the court of a cha
ritable trust,
Held, that the Attorney-General had no power to ratify and adopt the filing of t
he information
on behalf of the Crown, but the Governor with the advice of the Executive Counci
l of the
State had such power.
[Earlier proceedings see (1945) 46 SR (NSW) 3; 62 WN 246.]
A-G (NSW) V WYLDE (1946) 47 SR (NSW) 99; 63 WN 222 (NSW Sup Ct FC). [Discussed
in note, 20 ALJ 304.]
523. Costs of Attorney-General .] Where the Attorney-General was a necessary
party to a
suit respecting charities, though he rendered the court no assistance, the court
allowed him
his costs.
TREACY V WATSON (1884) 10 VLR (E) 96; 5 ALT 201 (Vic Sup Ct, Molesworth J).
524. Costs of Attorney-General Unsuccessful appeal by .] It having been he
ld on
originating summons that a charitable trust for the benefit of full-blooded abor
igines was
impracticable of performance and that the will creating the trust did not show a
general
charitable intention to benefit aborigines whether of full or mixed blood, the
Attorney-General appealed in effect against the holding as to general charitable
intention, but
the appeal failed. Held, that the general rule that a beneficiary who appeals do
es so at his
own risk as to costs and that the costs of the appeal ordinarily follow the even
t, is applicable
to an appeal by the Attorney-General in the absence of special circumstances, an
d the appeal
should accordingly be dismissed with costs.
RE BARRY [1971] VR 395 (Vic Sup Ct FC).
[35] B. Other Parties
525. Proceedings to determine validity of gift to institution Joinder of offi
cial and
representative order .] The well-established rules as to joinder of parties, i
ncluding the
rules relating to the joinder of the Attorney-General in a suit relating to the
validity of a gift
to a specific institution, and to the joinder of an official of an institution b
y his individual
name and the making of a representative order, ought always to be strictly obser
ved.
GROVENOR V PERMANENT TRUSTEE CO OF NSW LTD (1966) 40 ALJR 329 (HC).
526. Proceedings to remove trustees General principles .] A church in conne
xion with
the Church of Scotland, known as "The Scots Church", was formed in New South Wal
es, and
its constitution defined by articles. In 1826 a grant of land at Sydney was made
to the
appellant, an ordained minister of the Church of Scotland, and others, for the e
rection of a
church. The appellant was appointed minister of the church. In 1842 an ecclesias
tical body
called the "Synod of Australia", in connexion with the Church of Scotland, of wh
ich the
appellant was a member (formed of Presbyterian congregations in Australia and re
cognized
by the Act, 4 Vic No 18), in consequence of charges brought against the appellan
t, dismissed
him from his office of minister and declared his church vacant. The appellant re
fused to
recognize the jurisdiction and authority of the Synod, and with the concurrence
of the other
trustees of the church, continued to officiate as minister. In 1855 the members
of the Synod
filed a bill in the Supreme Court at New South Wales praying that the appellant
and the other
trustees might be removed from the trust connected with the grant of land and th
e church
erected there, and that the appellant might be restrained from exercising the du
ties of
minister of that church and be decreed to deliver up possession on the ground th
at he had
been deposed therefrom by the Synod of Australia. Upon appeal, Held, reversing t
he decision
of the Supreme Court and dismissing the bill, that the suit was improperly frame
d by reason
First, that the members of the Synod of Australia were strangers to the trust
and had no
interest to maintain such a suit; Second, that such a suit could only be brought
(1) by some
person or persons on behalf of a body having an interest in the subject matter;
or (2) by some
public officer intrusted by law with authority to institute a suit, and that the
Synod had no
locus standi, either in respect of interest or of public authority.
LANG V PURVES (1862) 1 SCR (NSW) (App) 4; 15 Moo PC 389; 5 LT 809; 10 WR 468; 8
Jur (NS) 523; 137 RR 99; 15 ER 541; sub nom PURVES V A-G (NSW) AND LANG 2
Legge 1189 (PC).
527. Proceedings relating to construction of wills or entitlements of charities
.] Where an
application under s 63 of the Trustee Act 1958 (Vic) involved merely the formula
tion or
amendment of a scheme for the administration of a trust, or a modification of th
e trustee's
powers of investment, the Attorney-General was usually the only defendant necess
ary since
he would adequately represent all of the charities entitled under the trust. How
ever where
there were questions as to the construction of the will or the entitlements of t
he charities, it
might be necessary to join them as parties so that their competing interests wou
ld be
represented. Observations as to the information to be furnished to charities whe
re it was not
intended to join them as parties in applications.
NATIONAL TRUSTEES EXECUTORS & AGENCY CO OF A/ASIA LTD V A-G (VIC)
[1978] VR 374 (Vic Sup Ct, McInerney J).
528. Proceedings to establish trust Whether individual member of charitable o
rganization
may bring .] A number of persons, including the plaintiff, formed themselves i
nto a
society for charitable purposes, one of the rules of which was that there should
be a
community of goods and other property. The plaintiff on behalf of himself and al
l others
instituted a suit against the curator, who had administered to the estate of K,
the founder of
the society, and the Attorney-General seeking to restrain the curator from selli
ng land and
seeking to establish a trust, and for court to settle a scheme. Quaere, whether
the court had
jurisdiction at the suit of an individual member to interfere, but as no opposit
ion was made
by other members, a decree was made.
PRATZ V WEIGALL (1881) 7 VLR (E) 156 (Vic Sup Ct, Molesworth J).
529. Proceedings to vary scheme Right of visitor of charity to be joined as p
laintiff .]
In a suit between the council and the trustees of an educational charity to vary
a scheme
formerly settled by the court by applying a large portion of the funds for the b
enefit of two
affiliated charities, the Bishop of Tasmania, who was Visitor of all three chari
ties, was made
a party to the suit as plaintiff on his own application, and allowed to be separ
ately
represented. The order was not to affect the discretion of the court as to costs
.
A-G (TAS) (Ex rel STEPHENS) V REIBEY (1908) 4 Tas LR 73 (Tas Sup Ct, Dodds CJ).
530. Settlement of cy-pres scheme Right to intervene .] Upon a reference to
the
Master in Equity for the settlement of a scheme for the application of a charita
ble trust fund
cy-pres, the trustees of the fund had brought in a draft scheme which had been s
erved on the
Attorney-General who had filed machinery objections. On application made by a ch
aritable
organization for leave to appear before the Master on the settlement, and to bri
ng in
objections to the draft scheme, it was claimed that the applicants had an intere
st in the way in
which the trust fund should be applied. Held: (1) The grant of liberty to interv
ene on the
settlement of a scheme cy-pres was a matter in the discretion of the court, and
that such
liberty would only be granted where good cause was shown. (2) On the settlement
of a
scheme cy-pres the Attorney-General represents the charity, and that it is his r
ight and duty to
assist the court in the matter of such settlement. (3) In the circumstances the
application to
intervene should be refused.
RE DAVIES (1940) 58 WN (NSW) 35 (NSW Sup Ct, Roper J). [Discussed in note, 14 AL
J
424.]
531. Costs General principles Difficulty caused by testator .] Where, in
the
interpretation of a will, there was great divergence of judicial opinion and the
difficulty was
created by the testator himself, costs of all parties as between solicitor and c
lient were
allowed out of the estate.
394; 28 TLR 257; 56 SJ 324 (PC).
532. Costs Of relators .] Observations on the appropriate order for costs i
n
proceedings relating to charities, in particular the costs of relators.
A-G (NSW) V CHURCH OF ENGLAND PROPERTY TRUST DIOCESE OF SYDNEY
(1933) 34 SR (NSW) 36 (NSW Sup Ct, Long Innes J).
533. Costs Parties in same interest .] The testatrix gave the residue of he
r estate to be
divided between the churches of three different denominations at Goulburn, and d
eclared
that the legacies should be applied to such purposes as indicated "nominators",
respectively
representing those churches, should as to the share of each church in their abso
lute discretion
think fit. Held, that one set of costs as between solicitor and client only shou
ld be allowed
between the three sets of defendants representing the three religious institutio
ns; but that the
taxing officer, when taxing that set of costs, should allow a reasonable sum as
equivalent to
the costs which would have been incurred had the practice laid down in Read v.
Chown (
(1929) 46 WN (NSW) 154) been followed.
[36] Pt VI. Other Matters.
534. Charitable collections New South Wales Offences Appeal for support o
f
unregistered charity Letter inviting advertisement in book to be distributed f
ree to
servicemen Commercial proposition and not appeal .] Section 3 of the Charita
ble
Collections Act 1903 provided that: "It shall not be lawful for any person to ma
ke any appeal
for support of any charity unless" the charity is registered under the Act. G wa
s charged with
committing a breach of s 3 in that he had made an appeal for support of a charit
able purpose
to K in the form of a letter. The letter informed K that it was necessary to bri
ng out a new
edition of the "Australian Soldiers' Handbook", which was distributed free to se
rvicemen and
would ensure that widows and dependants or men incapacitated through war service
would
have full knowledge of their legal rights and privileges. The letter invited K t
o take a full
page business announcement at the cost of 10. Held, that the magistrate had corre
ctly taken
the view that the letter was a commercial or business proposition and was not an
appeal for
support of a charitable purpose within the meaning of s 3 of the Act.
EGGINS V GALE (1945) 62 WN (NSW) 189 (NSW Sup Ct, Herron J).
535. Charitable collections New South Wales Offences Failure to account p
roperly
for money obtained in course of appeal Necessity for mens rea .] "Fails to a
ccount
properly" in s 16 of the Charitable Collections Act 1934, means fails to account
dishonestly
with some guilty intention or some guilty knowledge that what the defendant was
doing was
wrong.
R V CAMERON (1966) 1 DCR (NSW) 140 (NSW Q Sess).
536. Charitable collections New South Wales Effect of registration under Ch
aritable
Collections Act Right of association to sue .] Registration under the Charit
able
Collections Act 1934 of an association of individuals not otherwise entitled to
sue or liable to
be sued in its own name or in the name of one of its members, does not make such
association competent to sue.
COTHER V JOHN FAIRFAX & SONS PTY LTD (1947) 64 WN (NSW) 154 (NSW Sup Ct,
Owen J). [Discussed in note, 21 ALJ 261.]
537. Charitable collections Queensland Offence Publishing advertisement
purporting to relate to appeal for support of charitable purpose Advertisement
itself
appeal for support .] C was convicted and fined under s 4(5) of the Charitable
Collections
Act 1952 for having published an advertisement purporting to relate to an appeal
for support
of a charitable purpose, such appeal for support not then being made in accordan
ce with s
4(2) of the Act. It was alleged that C had caused to be published a handbill bei
ng an
advertisement for a ball in which it was stated "Proceeds Spastic Centre". On ap
peal by way
of order to review, Held, that the conviction under s 4(5) could not stand, on t
he grounds (1)
that the advertisement contemplated by that subsection must relate, or purport t
o relate, to an
existing appeal for support; (2) that the advertisement itself was the appeal fo
r support and,
accordingly, did not fall within s 4(5), and (3) that there was no evidence to s
uggest that the
ball was, or was intended to be, an appeal for support of the Spastic Centre.
BATEMAN V CASTOR; EX PARTE CASTOR [1957] QSR 114; (1956) 51 QJPR 102 (Q
Sup Ct FC).
538. Hospitals and Charities Act (Vic) Gift over from one incorporated charit
y to another
upon failure to observe condition Right of second charity to sell its continge
nt interest
thereby extinguishing condition .] A testator devised land in trust for an inc
orporated
charity, and committed to it the maintenance and repair of his family vault, and
directed that,
upon failure to comply with this request, the land should pass to another incorp
orated charity.
The original donee having maintained the repair of the vault for 24 years succee
ding the
testator's death entered into an agreement with the donee under the gift over, b
y which
agreement the later donee, for a small monetary consideration, sold and transfer
red its entire
interest to the original donee. Held, that by virtue of the Hospitals and Charit
ies Act 1922, ss
49, 71(3), the charity had power to so sell its contingent interest, and that th
e effect of the
transaction was to extinguish the condition relating to the maintenance of the v
ault.
539. Hospitals and Charities Act (Vic) Trust for unincorporated institution
Subsequent
incorporation Transfer of trust property to corporation .] Under a declarati
on of trust,
land was held for an unincorporated hospital. The trustees held it under the con
trol of the
Committee of Management of the hospital, the committee having power to remove an
y
trustee who should refuse to exercise his powers as required by it. Later the ho
spital became
incorporated under the Hospitals and Charities Act 1922. Held: (1) The trustees
being bare
trustees without powers of management, the Act did not operate to vest the prope
rty in the
incorporated hospital as custodian trustee. (2) The incorporation of the hospita
l having
rendered separate trustees unnecessary, the trustees should transfer the propert
y to the
hospital.
CHILDREN'S HOSPITAL V GRICE [1932] VLR 306 (Vic Sup Ct, Cussen ACJ).
540. Hospitals and Charities Act (Vic) Validity of by-law Inconsistency wit
h
regulation Effect of subsequent repeal of regulation .] Section 84(3) of the
Hospitals
and Charities Act 1928 renders a by-law of an institution of no force and effect
to the extent
to which it is inconsistent with or repugnant to a regulation made under the sec
tion by the
Governor-in-Council. An institution made a by-law, part of which was inconsisten
t with an
existing regulation. The regulation was later repealed. Held, that after the rep
eal of the
regulation the by-law was no longer affected by the subsection.
MITCHELL V CASTERTON HOSPITAL [1935] VLR 90; [1935] ALR 151 (Vic Sup Ct,
Mann J).
541. Hospitals and Charities Act (Vic) Closing of institution by Governor-in-
Council
Effect on gift of income "Property of the institution shall be conveyed to and
vested in the
Crown" .] Section 31(1)(c) of the Hospitals and Charities Act 1948 provides th
at on the
Governor-in-Council closing an institution, "all real and personal property of t
he institution
shall be conveyed to and vested in the Crown". Held, that income directed to be
paid by
trustees of a will to a named charitable institution constitutes an interest of
which the
institution cannot dispose and, therefore, does not fall within the meaning of t
he above
phrase "all real and personal property of the institution"; accordingly, upon th
e closing of the
institution by the Governor-in-Council the income must be applied cy-pres if it
appears that
the testator has a general charitable intention, and a scheme will be settled fo
r that purpose.
RE GODFREE [1952] VLR 353; [1952] ALR 595 (Vic Sup Ct, Herring CJ). [Discussed i
n
note, 26 ALJ 541.]
542. Hospitals and Charities Act (Vic) Institution incorporated under Act P
ower of
court to authorize sale or transaction with respect to assets .] The applicant
, The
Community Welfare Foundation, was formed for charitable purposes. Its contributo
rs were
incorporated under the Hospitals and Charities Act 1958. It held real estate and
other assets
which it was to be assumed came from voluntary contributions. Held: (1) The appl
icant held
its assets as trustee for the charitable purposes for which it was carried on, t
here were no
particular powers of investment in the terms on which it had received its assets
, and the case
was therefore one to which the powers of the court under s 63(1) of the Trustee
Act 1958
were applicable, subject to any provision of powers of investment by the Trustee
Act 1958 or
by the Hospitals and Charities Act 1958. (2) The general power to invest contain
ed in s 4 of
the Trustee Act 1958 is to be regarded as inhibited by s 89 of the Hospitals and
Charities Act
1958, but s 63(1) of the Trustee Act 1958 is to be understood as authorizing the
court to
extend the categories of investments set out in s 4 and investments authorized b
y s 4 or by the
court would be "investments authorized by the law for the time being in force fo
r the
investment of trust funds" as that expression is used in s 89 of the Hospitals a
nd Charities Act
1958. (3) Whether or not the words "subject to this Act" in s 89 have the effect
of making the
enabling power in s 63 of the Trustee Act 1958 operative only subject to the lim
itations
imposed by the Hospitals and Charities Act 1958 (which, quaere), the court shoul
d, in
empowering the institution to sell its land, have regard to the safeguards impos
ed by the
latter Act, and the power to sell the real estate granted by the court's order s
hould therefore
be subject to the provisions of Div 3 of Pt IV of the Hospitals and Charities Ac
t 1958.
COMMUNITY WELFARE FOUNDATION V A-G (VIC) [1976] VR 186 (Vic Sup Ct,
Gowans J).

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[Supplemented to January, 1999]

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