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

63 CLR 209

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(Judgment by: Starke J)

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

Court:

Judges: Latham CJ
Rich J

Starke JDixon 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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Judgment by:
Starke J

Annie Reid McDonell was possessed at the time of her death of an area of grazing and farming lands known as Milly Milly, consisting of about 4,000 acres near West Wyalong in New South Wales. She died in 1936 leaving a will whereby she made the following disposition of the Milly Milly property: "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 Supreme Court of New South Wales has found and declared that it is impracticable to use the Milly Milly property as a training school for orphan lads and it also declared that in making the disposition the testatrix had not expressed a general charitable intention and that the property passed as on an intestacy of the testatrix. The declaration that it is impracticable to use the Milly Milly property as a training school for orphan lads has not been challenged, but the Attorney-General challenges the other declaration as to the property and contends that the disposition constitutes a good charitable devise or bequest which should be administered cy-pr?

The law of the case is not in doubt, but its application in particular cases may lead to different judicial conclusions. It has been stated by Parker J. in In re Wilson; Twentyman v Simpson ^[F12] , and I need do no more than refer to his judgment in that case. The question which we have to consider is whether the gift in the will of the testatrix "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" property "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" ^[F13] .

I gather from the description of the testatrix in the will as the widow, of Roderick Charles McDonell of Milly Milly, West Wyalong, that the Milly Milly property had been her home. At all events she apparently carried on farming and grazing operations on the property at the time of her death. Otherwise the question depends upon the intention of the testatrix gathered from the words of her will. In form it is a particular gift: the whole of the Milly Milly property to be held for a training farm for orphan lads being Australians. In my opinion there is nothing in this will which justifies the court, as a matter of construction, disregarding the particular direction of the testatrix to hold her Milly Milly property as a training school for orphan lads, and construing it as a general gift for the benefit of orphan lads. On the surrounding facts, such as they are, and on the precise words of the gift, the intention of the testatrix is that the training school should be located at her old home Milly Milly and there only.

In my opinion the decision of the Supreme Court was right and the appeal should be dismissed.