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

Judges: Latham CJ
Rich J
Starke J
Dixon J and Evatt J

McTiernan J

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

Sydney

Judgment by:
McTiernan J

In my opinion the appeal should be allowed.

The words in which the testatrix framed the devise of the Milly Milly property clearly show that it was her intention to devote the property to a charitable object. As it has been found impracticable to apply the property in accordance with the expressed intention of the testatrix, the question is whether the devise evinces a general or a particular charitable intention. The inference which I draw from the language of the testatrix is that the devise was made with the intention of providing a training farm for Australian orphan lads and of making the Milly Milly property available for that purpose. If that inference is the correct one, it follows that the paramount intention was to provide that kind of facility for the training of the class she desired to assist, and her direction about the Milly Milly property may be regarded as the mode in which she desired that intention to be fullfilled. The words of the gift do not, in my opinion, show that her intention was confined to the particular object of having Milly Milly turned into a training farm for orphan lads. The present case, I think, more naturally falls on the side of the line on which Biscoe v Jackson ^[F25] stands rather than on the side on which In re Rymer; Rymer v Stanfield ^[F26] stands: See especially the observations of Lord Herschell L.C. in the latter case ^[F27] .

The property, the subject of the devise, should, therefore, be applied cy-pr?