This document provides a scope note and articles, notes, and cases related to charities law. It discusses what constitutes a charitable purpose and whether charities can charge fees for their services without losing their charitable status. The summary is:
1) The document scopes charities law cases related to charitable purposes, trusts, and statutory provisions governing charities.
2) It examines whether charities like hospitals, sanatoriums, and homes can charge fees for services while maintaining charitable status, finding that charging fees does not necessarily negate charitable status if the institution is not operated for private gain.
3) Charitable trusts can conduct trade activities if profits are used to further the charity's purposes.
This document provides a scope note and articles, notes, and cases related to charities law. It discusses what constitutes a charitable purpose and whether charities can charge fees for their services without losing their charitable status. The summary is:
1) The document scopes charities law cases related to charitable purposes, trusts, and statutory provisions governing charities.
2) It examines whether charities like hospitals, sanatoriums, and homes can charge fees for services while maintaining charitable status, finding that charging fees does not necessarily negate charitable status if the institution is not operated for private gain.
3) Charitable trusts can conduct trade activities if profits are used to further the charity's purposes.
This document provides a scope note and articles, notes, and cases related to charities law. It discusses what constitutes a charitable purpose and whether charities can charge fees for their services without losing their charitable status. The summary is:
1) The document scopes charities law cases related to charitable purposes, trusts, and statutory provisions governing charities.
2) It examines whether charities like hospitals, sanatoriums, and homes can charge fees for services while maintaining charitable status, finding that charging fees does not necessarily negate charitable status if the institution is not operated for private gain.
3) Charitable trusts can conduct trade activities if profits are used to further the charity's purposes.
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. RE SUTHERLAND; QUEENSLAND TRUSTEES LTD V A-G (Q) [1954] QSR 99 (Q Sup 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, ``Impotent'' 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. ``Impotent'' 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.] TAYLOR V TAYLOR (1910) 10 CLR 218; 16 ALR 129 (HC). 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. A-G (VIC) V M'CARTHY (1886) 12 VLR 535 (Vic Sup Ct FC). 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.] 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 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. 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.] 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. QUEENSLAND TRUSTEES LTD V GREEN [1911] QSR 105 (Q Sup Ct FC). 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. 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 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. RE FLATMAN; FLATMAN V BINNIE [1953] VLR 33; [1952] ALR 980 (Vic Sup Ct, Barry J). [Discussed in note, 27 ALJ 380.] 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. RE MITCHNER; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (CTH) [1922] QSR 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. CONGREGATIONAL UNION (NSW) V THISTLETHWAYTE (1952) 87 CLR 375; 26 ALJ 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. CONGREGATIONAL UNION (NSW) V THISTLETHWAYTE (1952) 87 CLR 375; 26 ALJ 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. 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.] 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. [(1909) 5 Tas LR 68 affd on different grounds.] TAYLOR V TAYLOR (1910) 10 CLR 218; 16 ALR 129 (HC). 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.] 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). 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.] VERGE V SOMERVILLE [1924] AC 496; (1924) 93 LJPC 173; 131 LT 107; 40 TLR 279; 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. 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). 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. 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.] 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.] 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.] 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.] 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). 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. A-G (NSW) V SAWTELL [1978] 2 NSWLR 200 (NSW Sup Ct, Holland J). 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 `Observer' or `Obser 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. RE WEAVER; TRUMBLE V ANIMAL WELFARE LEAGUE OF VICTORIA [1963] VR 257 (Vic Sup Ct, Hudson J). 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. RE INMAN [1965] VR 238 (Vic Sup Ct, Gowans J). [Discussed in article, 47 ALJ 68; 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 J). [Discussed in note, 17 ALJ 123.] 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. RE MACLACHLAN; MACLACHLAN V CAMPBELL (1900) 26 VLR 548; 22 ALT 121; 6 ALR 243 (Vic Sup Ct, Hood J). 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 J). [Discussed in note, 28 ALJ 617.] 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. RE INMAN [1965] VR 238 (Vic Sup Ct, Gowans J). [Discussed in article, 47 ALJ 68; 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 words used by the testator did not create a charitable trust. RE BOLAND; BOLAND V BOLAND [1950] QSR 45 (Q Sup Ct FC). 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 132 (Q Sup Ct FC). [Discussed in note, 38 ALJ 211.] 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. TAYLOR V TAYLOR (1910) 10 CLR 218; 16 ALR 129 (HC). 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. 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). 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. RE GOODSON [1971] VR 801 (Vic Sup Ct, Adam J). [Discussed in article, 47 ALJ 305 .] 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. RE INMAN [1965] VR 238 (Vic Sup Ct, Gowans J). [Discussed in article, 47 ALJ 68; 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. CONGREGATIONAL UNION (NSW) V THISTLETHWAYTE (1952) 87 CLR 375; 26 ALJ 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 `Elmslea' ... 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. GLEESON V PHELAN (1914) 15 SR (NSW) 30; 32 WN 2 (NSW Sup Ct, Harvey J). 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. 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; 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. RE VOSZ; PUBLIC TRUSTEE V STEELE [1926] SASR 218 (SA Sup Ct, Murray CJ). 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. 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.] 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. MUIR V OPEN BRETHREN (1956) 96 CLR 166; 30 ALJ 171; [1956] ALR 419 (HC). 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. RE HARNETT; CONDON V HARNETT (1907) 7 SR (NSW) 463; 24 WN 104 (NSW Sup Ct, Simpson CJ in Eq). 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. RE SUTHERLAND; QUEENSLAND TRUSTEES LTD V A-G (Q) [1954] QSR 99 (Q Sup 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. RE VOSZ; PUBLIC TRUSTEE V STEELE [1926] SASR 218 (SA Sup Ct, Murray CJ). [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. RE VOSZ; PUBLIC TRUSTEE V STEELE [1926] SASR 218 (SA Sup Ct, Murray CJ). 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. RE VOSZ; PUBLIC TRUSTEE V STEELE [1926] SASR 218 (SA Sup Ct, Murray CJ). 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. EXECUTOR TRUSTEE & AGENCY CO OF SA LTD V WARBEY [1971] SASR 255 (SA 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.] SMITH V WA TRUSTEE EXECUTOR & AGENCY CO LTD (1950) 81 CLR 320; 24 ALJ 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 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). 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. RE BECK; HAFFENDEN V DOUGLASS [1967] 2 NSWR 91 (NSW Sup Ct, Hardie J). 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. 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.] 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. A-G (SA) V BRAY (1964) 111 CLR 402; 37 ALJR 447; [1964] ALR 955 (HC). 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. EXECUTOR TRUSTEE & AGENCY CO OF SA LTD V WARBEY [1971] SASR 255 (SA 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. RE FALL; EQUITY TRUSTEES CO OF TASMANIA LTD V EPSTEIN [1944] Tas SR 41 (Tas Sup Ct, Morris CJ). 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. A-G (NSW) V SAWTELL [1978] 2 NSWLR 200 (NSW Sup Ct, Holland J). 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. IN THE WILL OF SCALES; PERMANENT TRUSTEE CO OF NEW SOUTH WALES LTD V FREEMAN [1972] 2 NSWLR 108 (NSW Sup Ct, Helsham J). 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. RE DRUMMOND'S TRUSTS (1907) 4 Tas LR 9 (Tas Sup Ct, McIntyre J). 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. 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). 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. DIOCESAN TRUSTEES OF CHURCH OF ENGLAND IN WA V SOLICITOR-GENERAL (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. RE MITCHNER; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (CTH) [NO 2] [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.] 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). 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. RE WEAVER; TRUMBLE V ANIMAL WELFARE LEAGUE OF VICTORIA [1963] VR 257 (Vic Sup Ct, Hudson J). 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.] 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). 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. RE MITCHNER; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (CTH) [1922] QSR 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. CONGREGATIONAL UNION (NSW) V THISTLETHWAYTE (1952) 87 CLR 375; 26 ALJ 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. RE WEAVER; TRUMBLE V ANIMAL WELFARE LEAGUE OF VICTORIA [1963] VR 257 (Vic Sup Ct, Hudson J). 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. RE ANNANDALE [1986] 1 Qd R 353 (Q Sup Ct, Derrington J). 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. 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.] 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. RE DRUMMOND'S TRUSTS (1907) 4 Tas LR 9 (Tas Sup Ct, McIntyre J). 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 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). 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. RE FALL; EQUITY TRUSTEES CO OF TASMANIA LTD V EPSTEIN [1944] Tas SR 41 (Tas Sup Ct, Morris CJ). 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. SIR MOSES MONTEFIORE JEWISH HOME V HOWELL AND CO (NO 7) PTY LTD [1984] 2 NSWLR 406 (NSW Sup Ct, Kearney J). 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). 261. Gift to charitable institution Institution ceasing to exist.] A testat 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). 262. Gift to charitable institution Institution ceasing to exist.] A testat 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. RE GOODSON [1971] VR 801 (Vic Sup Ct, Adam J). [Discussed in article, 47 ALJ 305 .] 266. Gift to charitable institution Institution ceasing to exist Work conti 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). 267. Gift to charitable institution Institution ceasing to exist Work conti 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. 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 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.] A-G (SA) V BRAY (1964) 111 CLR 402; 37 ALJR 447; [1964] ALR 955 (HC). 271. Gift for charitable object Practicability Test and time for determinin 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). 272. Gift for charitable object Practicability Test and time for determinin 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. RE CARMICHAEL; WADDINGTON V A-G (Q) [1936] QSR 196 (Q Sup Ct, Henchman J). [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.] 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). 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. 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). 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.] SMITH V WA TRUSTEE EXECUTOR & AGENCY CO LTD (1950) 81 CLR 320; 24 ALJ 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. MUIR V OPEN BRETHREN (1956) 96 CLR 166; 30 ALJ 171; [1956] ALR 419 (HC). 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. RE HARNETT; CONDON V HARNETT (1907) 7 SR (NSW) 463; 24 WN 104 (NSW Sup Ct, Simpson CJ in Eq). 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 . 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). 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. RE FLATMAN; FLATMAN V BINNIE [1953] VLR 33; [1952] ALR 980 (Vic Sup Ct, Barry J). [Discussed in note, 27 ALJ 380.] 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 466 (Q Sup Ct FC). [Discussed in note, 30 ALJ 453.] 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 words used by the testator did not create a charitable trust. RE BOLAND; BOLAND V BOLAND [1950] QSR 45 (Q Sup Ct FC). 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 `Elmslea' ... 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). 305. Conveyancing Act 1919 (NSW), s 37D Composite expression embracing charit 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). 306. Conveyancing Act 1919 (NSW), s 37D Composite expression embracing charit 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). [Discussed in note, 22 ALJ 564.] 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. RE PARKER; BALLARAT TRUSTEES EXECUTORS & AGENCY CO LTD V PARKER [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 `Observer' or `Observers'. (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. 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 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. RE INMAN [1965] VR 238 (Vic Sup Ct, Gowans J). [Discussed in article, 47 ALJ 68; 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. RE PARKER; BALLARAT TRUSTEES EXECUTORS & AGENCY CO LTD V PARKER [1949] VLR 133; [1949] ALR 545 (Vic Sup Ct, Fullagar J). 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. PUBLIC TRUSTEE V SMITH (1944) 44 SR (NSW) 348; 61 WN 206 (NSW Sup Ct, Roper 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. 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.] 330. Whether essential to validity of trust that it be carried out by designate 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. 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.] 331. Whether essential to validity of trust that it be carried out by designate 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. RE FLATMAN; FLATMAN V BINNIE [1953] VLR 33; [1952] ALR 980 (Vic Sup Ct, Barry J). [Discussed in note, 27 ALJ 380.] 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 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.] 335. 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). 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. GLEESON V PHELAN (1914) 15 SR (NSW) 30; 32 WN 2 (NSW Sup Ct, Harvey J). 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. IN THE WILL OF SCALES; PERMANENT TRUSTEE CO OF NEW SOUTH WALES LTD V FREEMAN [1972] 2 NSWLR 108 (NSW Sup Ct, Helsham J). 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.] A-G (SA) V BRAY (1964) 111 CLR 402; 37 ALJR 447; [1964] ALR 955 (HC). 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. RE MACLACHLAN; MACLACHLAN V CAMPBELL (1900) 26 VLR 548; 22 ALT 121; 6 ALR 243 (Vic Sup Ct, Hood J). 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. RE PARKER; BALLARAT TRUSTEES EXECUTORS & AGENCY CO LTD V PARKER [1949] VLR 133; [1949] ALR 545 (Vic Sup Ct, Fullagar J). 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. 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). 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. PUBLIC TRUSTEE V NOLAN (1943) 43 SR (NSW) 169; 60 WN 84 (NSW Sup Ct, Roper J). [Discussed in note, 17 ALJ 123.] 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). [Discussed in note, 45 ALJ 23.] 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. RE MITCHNER; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (CTH) [NO 2] [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). 365. Special statutory provisions Queensland Religious, Educational and Cha 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). 366. Special statutory provisions Queensland Religious, Educational and Cha 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). 367. Special statutory provisions Queensland Religious, Educational and Cha 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). 368. Special statutory provisions Queensland Religious, Educational and Cha 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. 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). 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. GLEESON V PHELAN (1914) 15 SR (NSW) 30; 32 WN 2 (NSW Sup Ct, Harvey J). 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. RE MACLACHLAN; MACLACHLAN V CAMPBELL (1900) 26 VLR 548; 22 ALT 121; 6 ALR 243 (Vic Sup Ct, Hood J). 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. QUEENSLAND TRUSTEES LTD V GREEN [1911] QSR 105 (Q Sup Ct FC). 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). 378. Primary trust for non-charitable object Rule of construction where gift 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. PUBLIC TRUSTEE V NOLAN (1943) 43 SR (NSW) 169; 60 WN 84 (NSW Sup Ct, Roper J). [Discussed in note, 17 ALJ 123.] 379. Primary trust for non-charitable object Rule of construction where gift 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. RE ROSS; PIDDINGTON V PRESBYTERIAN CHURCH OF QUEENSLAND [1964] Qd R 132 (Q Sup Ct FC). [Discussed in note, 38 ALJ 211.] 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. RE FLATMAN; FLATMAN V BINNIE [1953] VLR 33; [1952] ALR 980 (Vic Sup Ct, Barry J). [Discussed in note, 27 ALJ 380.] 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. RE MITCHNER; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (CTH) [NO 2] [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. RE PARKER; BALLARAT TRUSTEES EXECUTORS & AGENCY CO LTD V PARKER [1949] VLR 133; [1949] ALR 545 (Vic Sup Ct, Fullagar J). 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. RE DARWIN CYCLONE TRACY RELIEF TRUST FUND; ADERMANN V DARWIN CITY CORPORATION (1979) 39 FLR 260 (NT Sup Ct, Forster CJ). 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.
[(1908) 5 Tas LR 68 affd on different grounds.] TAYLOR V TAYLOR (1910) 10 CLR 218; 16 ALR 129 (HC). 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.] A-G (SA) V BRAY (1964) 111 CLR 402; 37 ALJR 447; [1964] ALR 955 (HC). 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). 402. Incorrect description of charity Gift to non-existent institution Gif 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). 403. Incorrect description of charity Gift to non-existent institution Gif 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. RE PACE (1985) 38 SASR 336 (SA Sup Ct, Cox J). 404. Incorrect description of charity Gift to non-existent institution Gif 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). [Discussed in note, 30 ALJ 401.] 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. EXECUTOR TRUSTEE & AGENCY CO OF SA LTD V WARBEY [NO 2] (1973) 6 SASR 336 (SA Sup Ct, Bray CJ). 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. RE ANNANDALE [1986] 1 Qd R 353 (Q Sup Ct, Derrington J). 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. RE DARWIN CYCLONE TRACY RELIEF TRUST FUND; ADERMANN V DARWIN CITY CORPORATION (1979) 39 FLR 260 (NT Sup Ct, Forster CJ). 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. RE CARMICHAEL; WADDINGTON V A-G (Q) [1936] QSR 196 (Q Sup Ct, Henchman J). 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. RE PACE (1985) 38 SASR 336 (SA Sup Ct, Cox J). 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. RE CARMICHAEL; WADDINGTON V A-G (Q) [1936] QSR 196 (Q Sup Ct, Henchman J). 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 J). [Discussed in note, 22 ALJ 324.] 428. Institution ceasing to exist between testator's death and payment of legac 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. RE BECK; HAFFENDEN V DOUGLASS [1967] 2 NSWR 91 (NSW Sup Ct, Hardie J). 429. Institution ceasing to exist between testator's death and payment of legac 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). 430. Institution ceasing to exist between testator's death and payment of legac 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). 432. Subsequent failure Gift to particular charitable institution ceasing to 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). 433. Subsequent failure Gift to particular charitable institution ceasing to 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. EXECUTOR TRUSTEE & AGENCY CO OF SA LTD V WARBEY [NO 2] (1973) 6 SASR 336 (SA Sup Ct, Bray CJ). 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. RE ANNANDALE [1986] 1 Qd R 353 (Q Sup Ct, Derrington J). 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. RE GOODSON [1971] VR 801 (Vic Sup Ct, Adam J). [Discussed in article, 47 ALJ 305 .] 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. 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.] 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. RE BECK; HAFFENDEN V DOUGLASS [1967] 2 NSWR 91 (NSW Sup Ct, Hardie J). 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. SIR MOSES MONTEFIORE JEWISH HOME V HOWELL AND CO (NO 7) PTY LTD [1984] 2 NSWLR 406 (NSW Sup Ct, Kearney J). 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. 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.] 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. RE VOSZ; PUBLIC TRUSTEE V STEELE [1926] SASR 218 (SA Sup Ct, Murray CJ). 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. RE SUTHERLAND; QUEENSLAND TRUSTEES LTD V A-G (Q) [1954] QSR 99 (Q Sup 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.] A-G (VIC) V M'CARTHY (1886) 12 VLR 535 (Vic Sup Ct FC). 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. 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). 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. 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.] 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.] A-G (SA) V BRAY (1964) 111 CLR 402; 37 ALJR 447; [1964] ALR 955 (HC). 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. EXECUTOR TRUSTEE & AGENCY CO OF SA LTD V WARBEY [1971] SASR 255 (SA 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. 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.] 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). [Discussed in note, 8 ALJ 329.] 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). RE PIEPER; TRUSTEES EXECUTORS & AGENCY CO LTD V A-G (VIC) [1951] VLR 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.] VERGE V SOMERVILLE [1924] AC 496; (1924) 93 LJPC 173; 131 LT 107; 40 TLR 279; 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. 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.] 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. DIOCESAN TRUSTEES OF CHURCH OF ENGLAND IN WA V SOLICITOR-GENERAL (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.] VERGE V SOMERVILLE [1924] AC 496; (1924) 93 LJPC 173; 131 LT 107; 40 TLR 279; 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. RE ROSS; PIDDINGTON V PRESBYTERIAN CHURCH OF QUEENSLAND [1964] Qd R 132 (Q Sup Ct FC). [Discussed in note, 38 ALJ 211.] 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. 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.] 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. 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). 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. 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). [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. 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.] 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).