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

63 CLR 209

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(Decision by: Rich J)

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

Court:

Judges: Latham CJ

Rich JStarke 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:
Rich J

This is an appeal from the judgment of Roper J., who held that the testatrix had not "exhibited a general charitable intention in respect of the property described as the whole of the Milly Milly property." As the intention of the testatrix is to be ascertained from the words used by her in her will I quote the relevant passage: "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." In In re Monk ^[F9] Lord Hanworth M.R. quotes from the judgment of Parker J. in In re Wilson ^[F10] where that learned judge defines broadly two categories into which cases of this nature may be divided, the first where "it is possible, taking the will as a whole, to say that, notwithstanding the form of the gift, the paramount intention, according to the true construction of the will, is to give the property in the first instance for a general charitable purpose rather than a particular charitable purpose, and to graft on to the general gift a direction as to the desires or intentions of the testator as to the manner in which the general gift is to be carried into effect." In such cases, even though the precise directions cannot be carried out, the gift for the general charitable purpose will remain, and be perfectly good, and the doctrine of cy-pr?applied.

The other category is, "where on the true construction of the will, no such paramount general intention can be inferred, and where the gift, being in form a particular gift,-a gift for a particular purpose-and it being impossible to carry out that particular purpose, the whole gift is held to fail" ^[F11] . In my opinion the instant case falls within the first category. The language of the testatrix evidences the purpose of benefiting orphan children by aiding or promoting their farm training; that is the real substance of the gift. The property devised by her was to provide the means of carrying out this purpose. The testatrix did not give particular directions or indicate the exact method for carrying out her purpose. The general and paramount intention of the testatrix was to benefit the persons named by training them on a farm and fitting them for rural pursuits and the court may direct a scheme to be settled for this purpose. I suggest for the consideration of the Master in Equity of the Supreme Court that if the property be sold and the proceeds invested the income therefrom might be applied towards the maintenance and support of an orphan or orphans at one of the New-South-Wales agricultural colleges. In my opinion the appeal should be allowed, a declaration made that the devise in question is a good and valid charitable bequest and a reference made to the Master in Equity to approve of a scheme for the general administration of the property, the application of the income or the proceeds of the sale thereof as the case may be for carrying out the general charitable intention appearing in the testatrix's will.