Attorney-General (NSW) v Perpetual Trustee Co (LTD)

63 CLR 209

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(Decision by: Latham CJ)

Attorney-General (NSW)
v Perpetual Trustee Co (LTD)

Court:

Judges:
Latham CJRich J
Starke J
Dixon J and Evatt J
McTiernan J

Subject References:
Charities
Practicability of specified property
General charitable intention
Doctrine of cy-pres

Hearing date: SYDNEY 4 April 1940; 5 April 1940; 28 June 1940;
Judgment date: 28 June 1940

Sydney

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Decision by:
Latham CJ

This is an appeal from a decretal order of the Supreme Court of New South Wales (Roper J.) whereby it was declared that a gift contained in the will of Annie Reid McDonell created a valid charitable trust which it was impracticable to carry out according to its terms, that the testatrix had not expressed any general charitable intention, that the trust could therefore not be administered cy-pr? and that, accordingly, the property in question passed as on the intestacy of the testatrix. The appellant, asking for a cy-pr?order, challenges only the part of the order which declares that the testatrix did not express a general charitable intention.

The testatrix, whose home was a property known as Milly Milly, made the following disposition in her will: "I will and bequeath the whole of the Milly Milly property to be held by the Perpetual Trustee Co for a training farm for orphan lads being Australians."

The question to be determined by the court was stated by Parker J. in In re Wilson ^[F1] in the following terms:"I have to determine whether the gift in this will, which is in form a particular gift, is a gift really for a particular charitable purpose, and for that purpose only, or whether there is a paramount intention to be gathered from the will that the money shall in any event be applied for some more general charitable purpose even if the particular mode of application which is prescribed cannot be carried into effect." The answer to this question is to be reached by construing the will as a whole. As Parker J. said in the case cited (1), "I simply have to consider what is the construction of the gift." See also In re Monk ^[F2] , per Sargant L.J.: "The question of general charitable intent" is "one depending on the construction of the particular will, or other instrument." In this case there are no other provisions in the will which can be used to assist in the construction of the charitable provision which is in question.

In every case of a charitable gift there is a charitable intention. By a process of abstraction it is always possible to disengage that intention in the case of any particular gift and then to argue that the intention so discovered is an intention which is general and not particular in character. A gift for the relief of poverty in a particular village subject to precise directions limiting the benefits to be taken by individuals and the manner in which those benefits are to be conferred or enjoyed can accurately, but not completely, be described as a gift for the relief of poverty. So also any gift for the establishment of a school in a particular place can be described, once again accurately but not completely, as a gift for the advancement of education. But it would be quite wrong to hold that therefore a general charitable intention was disclosed in the case of such gifts, so that the trusts could be administered cy-pr? The contrary view would really involve the proposition that every charitable trust, showing as it does a charitable intention to benefit the poor or to advance education, religion, etc, is to be construed as a gift showing a general charitable intention.

Before the cy-pr?doctrine can be applied it is necessary to find an expression of a general charitable intention in addition to a particular charitable intention. It must be possible to hold that, notwithstanding the failure of the particular means mentioned in the will or other instrument for the effectuation of the charitable intention, there is an expression of a general charitable intention, even though it may be impracticable to give effect to the intention by such means. As Dixon J. said in Royal North Shore Hospital of Sydney v Attorney-General (N.S.W.) ^[F3] , "it is not legitimate to infer from the fact that" the testator's "plan is a means to an end that the accomplishment of the end is his substantial purpose. The question is whether, independently of the means he has chosen, he had any charitable intention."

In the present case the testatrix was not content to refer merely to her "Milly Milly property." She expressly devised to a trustee "the whole of the Milly Milly property to be held" for a particular purpose. These words suggest that she regarded the property as a physical entity of which she intended to prescribe the use or application. The purpose mentioned is described in the words: "for a training farm for orphan lads being Australians." This gift cannot properly be described, in relation to the question which arises, as a gift for a general purpose such as the benefit of orphans, or of Australian orphans, or for educational (training) purposes, although the gift necessarily involves each of these elements. There is no indication, in my opinion, of any such general purpose. Such a purpose cannot be said to be declared in the will. Such a purpose cannot be extracted from the words of the will except by the irrelevant process of abstraction to which I have referred. In my opinion, the intention and the whole of the intention of the testatrix as disclosed by these words was to devote the whole of the Milly Milly property to a specified purpose in the sense that it was to be itself used for that purpose. She wished to found a training farm for Australian orphan lads on the Milly Milly property which had been her home and which as a farm was regarded by her as being suitable for that purpose. There is, in my opinion, no indication of a general charitable intention except in so far as such an intention may be said to be involved in each and every particular charitable intention.

The cases relied upon by the appellant are, in my opinion, all distinguishable from the present case. In Barby v Perpetual Trustee Co (Ltd ) ^[F4] there was an express general declaration of an intention to benefit necessitous returned soldiers or their necessitous relatives as well as a particular scheme for carrying that intention into effect. In Royal North Shore Hospital of Sydney v Attorney-General (N.S.W.) ^[F5] there were general prefatory words expressing a paramount general charitable intention. Wallis v Solicitor-General for New Zealand ^[F6] is also a case where the relevant dispositions contained general words as well as a particular provision for establishing a college: See per Sargant L.J. in In re Monk ^[F7] . In In re Wiseman's Trusts ^[F8] attention was called to the fact that "no virtue can be ascribed to the particular locality provided for that home" which the testatrix desired to establish. In the present case the testatrix desired to establish a training farm at Milly Milly and she intended that the property should be devoted to that purpose because it was a farm which she regarded as suitable for a training farm.

I am therefore of opinion that the decision of the learned judge was right and should be affirmed.

Counsel for the appellant asked that even if the appeal failed the costs of the Attorney-General should be paid out of the estate. I can see no reason for charging the costs of this unsuccessful appeal upon the estate. In my opinion, the appellant should bear his own costs and should pay the respondents' costs of the appeal. The respondents Winsome Elizabeth Wilson and Leslie Maclean Wilson were separately represented upon the appeal and in the proceedings in the Supreme Court. As to some of the questions asked in the originating summons before the Supreme Court they had divergent interests. Upon this appeal, however, their interests are identical. There was, in my opinion, no reason for separate representation, and accordingly only one set of costs should be allowed to these respondents.

In my opinion the appeal should be dismissed with orders as to costs as above stated.