Attorney-General (NSW) v Adams [1908] HCA 51

Attorney-General (NSW) v Adams [1908] HCA 51 - HCA 1908 case summary — Zoe

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thropic institutions for the time being existing in each of the States of the Commonwealth of Australia and the Colony of New Zealand and such person or persons for the time being in any of the said States and Colony to whom a gift would be an assistance and benefit and such of the individual poor needy and suffering of such States and Colony and such other person or persons for the time being in needy or straitened circumstances as my trustees shall consider deserving of support and assistance, and in making gifts and donations to any fund for the time being being raised for the good of any cause which has for its object the ameliora- tion of the lot of the unfortunate sick afflicted wounded or suffering. It being my wish that my trustees shall have an absolute free and unfettered hand in the distribution of the afore- said charities gifts and donations and notwithstanding anything hereinafter contained I expressly authorize and empower my trustees for the purpose of perpetuating my name in connection with those charities and charitable benevolent and philanthropic institutions which I have endeavoured to assist and support during my lifetime with and out of the aforesaid" funds "or of any part or parts thereof respectively to build or assist in building or to endow or to assist in endowing in my name in all or any of the said States and New Zealand any hospital or building to be used or used for charitable benevolent or philanthropic purposes or a wing or other addition to any such hospital or building already in existence . . . and for all or any of the purposes aforesaid to exercise the full powers of owners as fully and effectually as I could do if living and personally acting therein and I declare that my trustees in erecting any such building or making any such endowment as aforesaid may vest such building or moneys in the names of the trustees or managing officers for the time being of every such hospital or building as aforesaid or may themselves appoint special and separate sets of trustees for the purpose and I declare that the receipt of the treasurer secretary or other responsible officer of any such charitable benevolent or philan- thropic institution or of any such hospital or building as aforesaid shall be a good and sufficient release and discharge to my trustees for all moneys paid and distributed by them under all or any of the trusts for charities hereinbefore contained but that it shall

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not be incumbent upon my trustees to obtain or keep receipts for any other moneys paid or distributed by them under the same trusts." Further on in a clause lettered " Z" the testator directed his trustees to stand possessed of certain other portions of the net profits "upon trust to accumulate the same, but without being bound to invest the same or any part thereof and from time to time with the full and absolute powers of owners thereof to use such accumulations or any part or parts thereof" for certain purposes, amongst which was "in aiding or assisting any person or persons whatsoever to whom in the opinion of my trustees aid or assistance at the particular time would be a benefit and advan- tage in this life." Then followed a clause "AA" "and in aiding or assisting any one or more of the persons institutions causes or funds that my trustees are directed to assist under trusts in favour of charities hereinbefore more fully set forth." Then followed "BB," "And as I am of opinion that it is frequently desirable that the name of the person or persons to be aided or assisted under the last preceding trust as well as under the said trusts in favour of charities should not be disclosed I hereby and again declare that it shall not be incumbent upon my trustees to obtain or keep any receipts for the moneys distributed under the lastly preceding trusts and I further declare that my trustees shall not be liable in any way to account to any person or persons whomsoever whether interested under this my will or not for all or any of the aforesaid moneys, and that whether they are used for the furtherance of the said business or for such aid or assist- ance as aforesaid." In several other passages in the will the testator directed his trustees to stand possessed of certain funds arising from the profits of particular businesses, lapsed legacies, or unapplied portions of incomes," upon and subject to the trusts directions and provisions hereinafter (or hereinbefore) contained in favour of charities."

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uncertainty. The law applicable to the case has been settled now for more than 100 years. I will refer to two passages in com- paratively recent judgments in which it is laid down in very plain terms. 'he first is in the judgment of Rigby LJ. in In re Macduff; Macduff v. Macduff (1): - * What principles do we find that are applicable to the present case? First of all, a bequest upon trust must be sufficiently certain to enable the Court to superintend and give effect to the trust according to its terms. That is a general principle that applies to all bequests, whether charitable or not; they must be sufficiently definite to enable the Court to carry the trusts into effect. Then how do charity cases differ from general cases? As it appears to me, in this respect only - that when you get the idea of charity properly expressed in a will you have a standard to go by, and one that has been adopted now for centuries - that is to say, a standard afforded by the preamble to the Statute of Elizabeth, which deals with certains things specifically as in- stances of existing charities, and from which by analogy you can deduce that certain other matters are also to be treated as charitable. But before you can apply that rule you must find the idea of charity sufficiently expressed in the will, and it is not a good charitable gift if there is any alternative (I am now talk- ing of substantial matters) allowed to trustees as to whether the purposes to which they apply the property which is devised to them are to be charitable or something else. If there is an alternative, the general rule comes in, that this is a matter too indefinite for the Court to give effect to it." The other is a passage in the judgment of Buckley LJ. in In re Sidney; Hingeston y. Sidney (2), delivered in February last: - *The question is whether under this will the trustee is bound to apply these funds to charitable purposes. If consistently with the will he could apply any part of it to purposes which are not charit- able in the sense in which the word is understood in this Court, the gift must fail as being too indefinite for the Court to exe- cute." That being the principle, the question that remains is to apply it to the circumstances of the particular case. That is, we must read the will to see whether the testator has authorized his

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limitation to charity or charitable purposes, and there are other purposes included in the gift which upon a fair construction of the will are segregated from charities, purposes not strictly charit- able though probably beneficial, where the trustees have a dis- cretion to apply the fund to those purposes which are not within the legal acceptation of charities, in such cases there is nothing upon which the Court can seize to administer, nothing upon which it can found a scheme or plan, and the trusts fail. Sir Thomas Plumer M.R. in Ommanney v. Butcher (1) thus sum- marized the case of Morice v. Bishop of Durham (2): - The question came to be considered, whether the purpose was suffici- ently definite for the Court to execute. The Court held that it was not. The fund therefore belonged to the next of kin. It did not belong to the Crown because it was not charity, it did not belong to the Court because it was not sufficiently definite for the Court to execute, and a trust having been created it devolved to the next of kin. That was the principle laid down." That is the principle to be applied here. In Morice v. Bishop of Durham (3) Sir Wm. Grant MLR. stated the rule thus: - * The question is not whether he " (the trustee) "may not apply it upon purposes strictly charitable, but whether he is bound so to apply it." And in James v. Allen (4), he said : - " If it" (the property) "might, consistently with the will, be applied to other than strictly charitable purposes, the trust is too indefinite for the Court to execute." Without burdening my observations with quotations from intervening authorities, I apply a passage from the lucid judgment of Rigby LJ. in In re Macduf?; Macduff v. Macduff (5), already cited : - * First of all, a bequest upon trust must be sufficiently certain to enable the Court to superintend and give effect to the trust according to its terms. That is a general principle that applies to all bequests, whether charitable or not; they must be sufficiently definite to enable the Court to

At a glance

Court

Decision date

Before

Source

Judgment (213 paragraphs)

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