Byrne v Dunne [1910] HCA 75;

Byrne v Dunne [1910] HCA 75; - HCA 1910 case summary — Zoe

[21]

Where there is a trust of personalty, but for uncertain objects, the subject of it results to the next of kin, unless a charitable purpose is expressed, and unless the trustee is bound by the terms of the gift to apply the subject to charity. If he has a discretion to apply it to purposes not charitable, it is not a good charitable gift. "The question is, not whether he may not apply it upon purposes strictly charitable, but whether he is bound so to apply it": Per Sir William Grant, M.R., Morice v. Bishop of Durham[14]. That test is settled law, and is constantly applied. I feel bound to express, though reluctantly, my opinion that this bequest does not answer to the test. Assuming, but not deciding, that, if we left out the words "wholly or in part," the charitable objects of the trust would be sufficiently defined by the words "to be used and expended ... as such Archbishop shall judge most conducive to the good of religion in this diocese," I cannot escape from the conclusion that the bequest, if we read it without leaving out any of its words, gives the trustee an option to use or expend the subject or some of it on purposes not defined. There can be no separation, because there is no indication how much must or how much need not be applied to charity, or on what non-charitable objects part may be expended. I take the expression "wholly or in part" to be used in its natural and ordinary sense. Before applying any rules of law the Court must first construe the gift as it stands, and we must construe it in the ordinary sense unless we find a context requiring a different construction. The trustee has a discretion not merely between such objects as are all charitable, but between charitable and non-charitable objects. However laudable the application of any part may be, if its purpose need not be charitable in the legal meaning of that word, the grant of such a discretion is fatal to the bequest as one claimed for charity. Alternative suggestions have been offered, involving more or less departure from the ordinary and grammatical sense of the terms used. If they were ambiguous as they stand one or another of these suggested constructions might be adopted. But there is no ambiguity. There is nothing in the context to control the ordinary meaning or to suggest that it was not the testator's meaning; and therefore we ought not to depart from it. I think the terms used bring the gift within the principle laid down by Sir William Grant M.R. in James v. Allen[15] where he says: - "The whole property might, consistently with the words of the will, have been applied to purposes strictly charitable. But the question is, what authority would this Court have to say that the property must not be applied to purposes however benevolent, unless they also come within the technical denomination of charitable purposes? If it might, consistently with the will, be applied to other than strictly charitable purposes, the trust is too indefinite for the Court to execute."

[23]

It was argued that the direction that the estate should be handed to the Archbishop and his successors rendered the bequest a good charitable gift, on the anthority of In re Delany[17]. There were there two bequests, one to A., B., and C., Nazareth House, Hammersmith, or their successors, the other to D. and E., of the Convent of the Assumption, Bromley-by-Bow, or their successors. The persons named were in each case officials of a religious community. Farwell J. held that the bequests, having regard to the words "or their successors," were to the named individuals, not for their own personal benefit, but as holders of offices and for the benefit of the associations in which they respectively held office; and that, as the objects of the associations were charitable, the gifts were void under the Mortmain Act. He considered that a charitable purpose was implied in each gift. That case would be an authority for holding similar bequests good as charitable gifts in this country, where no Mortmain Act applies. But it is not an authority for the respondents in this case, for here the bequest does not stop at the words "Archbishop of Brisbane and his successors," but goes on to use expressions which appear to be destructive or preventive of its efficacy as a charitable gift. The testator has described his purpose. In the case cited he had left it to be clearly implied. Endeavour was made to sustain the gift on the ground of a general charitable intent gathered by reference to other parts of the will. Here it must be a general intention to apply the residuary estate to charity. But as the words "the Archbishop and his successors" must be read with what follows them, and the part that follows gives a discretion to apply as much as the trustee pleases to purposes not charitable, I cannot think that a general intent of the kind contended for is established. That cannot be done by substituting for the words "wholly or in part" other words said to be equivalent. We must construe the words themselves, and I think their meaning is clear. No doubt if the will showed a general intention to give the residue to charity, such an intention would not be frustrated because the donor has not expressed the particular objects of charity. But to that proposition, as urged for the respondents, the answer is that the residue may, according to the testator's words, be applied partly to charitable and partly to other purposes; in other words, that the bequest is not attacked for failure to designate particular objects where all are charitable, but for including with charitable objects - if they are clearly such - the option of others which are not charitable. In the judgment of Lord Halsbury, then Lord Chancellor, in Hunter v. The Attorney-General[18], already cited, there is a passage which seems applicable to the terms of this will, and to the assertion that it expresses a general charitable intent: - "Now, the process of reasoning by which the Court of Appeal has come to the conclusion that they have the right to read the testator's will as establishing a charitable trust on the words to which I have referred is this: they say that they are sufficiently satisfied of the testator's intention by referring to other parts of his will; and I so far agree that, judging of his religious views by what he has said in other parts of his will, I have no doubt whatever that his general intention was to aid the particular school of religious thought in the Church of England to which he was himself attached; but it would be a strange canon of construction for a will to say that wherever you can discover what a testator's desires and wishes were, although you cannot find express words in the will which give the authority sought for, nevertheless you can supply words and declare trusts which are not to be found in the will itself - that, to put it plainly, the testator's intention is to be judged by the general desire that he has expressed to have his money devoted to such a purpose. To create a trust by such a process of argumentation as that appears to my mind to be not interpreting the will, but making a will for the testator."

[26]

There can be no contest as to the general principles of law applicable in the construction of the testator's language. If this is not in the eyes of the law a charitable bequest, and it is in that sense that I use the expression "charitable," it is admittedly void for uncertainty. Assuming the object of the gift to be charitable, the trustee must be bound to apply the whole or some definite portion of it to the charity. If he is allowed a discretion to apply it to the charity or not as he pleases, or to apply to the charity only such portion of it as he may think fit, then the bequest to the charity is void, and the Archbishop will hold as trustee for the next of kin: Hunter v. The Attorney-General[21]; In re Davidson[22]. These principles being clear, the real questions for determination may be stated in a very few words: Is the object of the bequest in itself charitable? If it is, has the testator imposed on his trustee an obligation to expend the whole gift on the charitable purpose, or has he allowed him a discretion to apply the whole or an indefinite part of it to some other purpose? The answer to these questions must in the end depend upon the meaning of the testator's words construed in their plain ordinary signification. Taking the bequest as a whole, the intention is, in my opinion, clearly expressed that the gift is not to the Archbishop for the time being as an individual and for his personal benefit, but to the Archbishop and his successors as representing the Catholic Church. There is abundant authority to show that a bequest to the representative of a church as such is a bequest for the benefit of religion. Thornber v. Wilson[23] was a case under the Mortmain Act. The bequest was in these terms - "and as to the surplus, on trust to pay it to the then minister of the Roman Catholic Chapel at Kendal." In holding the gift to be charitable and void under the Mortmain Act, Vice-Chancellor Kindersley says: - "After referring to the will, I cannot entertain any doubt that the intention was to benefit the minister as such, that is, the chapel. The question whether there is a charitable gift does not depend on the fact that there is a gift to an individual describing him as minister; but on this, whether the testator designates the individual as such, or as being the person who happens to fill the office. A gift to a minister as such is a charitable bequest. I think here the intention was clearly, to benefit the minister and chapel; it was not a personal bequest, with a description of the person to be benefited. A gift to the person now minister would have been different; the testator might be unacquainted with his name, and so only be capable of describing him by his office." That decision was quoted with approval and followed by Mr. Justice Farwell in In re Delany; Conoley v. Quick[24]. The same principle was adopted in In re Garrard[25]. The bequest there was "to the vicar and churchwardens for the time being of Kington to be applied by them in such manner as they shall in their sole discretion think fit." In delivering judgment, Mr. Justice Joyce, after stating the bequest, says: - "Having regard to the decision of Kindersley V.C. in Thornber v. Wilson44 Drew., 350., and see In re Delany2(1902) 2 Ch., 642., it is clear that a legacy to the vicar for the time being of a parish is a charitable gift for the benefit of the parish for ecclesiastical purposes. The churchwardens are the officers of the parish in ecclesiastical matters, so that a mere gift or legacy to the vicar and churchwardens for the time being of a parish, without more, is a gift or charitable legacy to them for ecclesiastical purposes in the parish. It was suggested that the words in the latter part of the gift were inconsistent with its being a charitable gift, and that they implied that the vicar and churchwardens were to take beneficially. In my opinion there is no contradiction or inconsistency in the will whatever. The words to be applied by them in such manner as they shall in their sole discretion think fit, to my mind merely direct that the particular mode of application within the charitable purposes of the legacy is to be settled by those individuals, or rather that there is a power given to them to do it, subject always, of course, to the jurisdiction of the Court. Therefore I declare this to be a good charitable legacy for the benefit of the parish of Kington for ecclesiastical purposes."

[27]

I do not regard these cases as laying down a hard and fast rule that, whenever a bequest is to the head of a church and his successors, the gift is necessarily to be regarded as a gift to religion. There may be words in the bequest which indicate a contrary intention on the part of the testator. But the cases certainly establish this position, that a gift to the head of a church and his successors as representing the church will be construed as a gift for the benefit of religion unless there are words in the bequest which can be fairly interpreted as expressing a contrary intention. Looking again at the words of the will I can see nothing in the testator's direction as to the use and expenditure of the moneys handed over which can be fairly construed as cutting down the primâ facie effect of the gift to the Archbishop and his successors as a bequest to religion. Mr. Justice Joyce's observations on the effect of a direction of the same kind in Garrard's Case[28] strongly support this view. Now, a bequest to a religious institution or for a religious purpose is, primâ facie, a bequest for a charitable purpose, and when once it appears that a gift is for religious purposes it must be treated as a gift for charitable purposes unless the contrary can be shown. That proposition is established by White's Case[29], has been adopted and approved in subsequent decisions, and must now be taken to be a correct statement of the law. Mr. Woolcock endeavoured to throw doubt on the authority of White's Case[30] by quoting some comments of the learned author of Theobald on Wills. But the comments are not, in my opinion, justified by the cases to which the learned author refers. It was further contended, assuming the true principle of construction to be that laid down in White's Case[31], that there may be purposes of the Catholic religion which are not charitable in the eyes of the law, and that the trustee in applying the gift for the benefit of the Catholic religion would have a discretion to apply it to some of those purposes. It may be conceded that there are such purposes in connection with the Catholic religion and that that circumstance has been recognized in several cases. Take, for instance, the bequests to the two Communities of Nuns which were the subject of separate gifts in Cocks v. Manners[32]. One of the communities, the Sisters of Charity of St. Paul, by their constitution set before themselves the duty of serving the sick poor as well as the duty of prayer and contemplation for their own salvation. The constitution of the other community, a Dominican Convent, was the same in respect to the duty of prayer and contemplation, but it was wanting in the element of service to the public in ministering to the sick poor. On the ground of that distinction Vice-Chancellor Wickens held that the bequest to the Sisters of Charity was charitable and that the gift to the Dominican Convent was not. But the circumstance that there may be purposes of the Catholic religion which are not charitable does not in itself prevent a bequest for the benefit of the Catholic religion from being a good charitable bequest. White's Case[33] lays down the principle that primâ facie such a bequest is charitable, and it was on that ground that the bequests in Thornber v. Wilson[34] and In re Garrard[35], referred to earlier in this judgment, were held to be good. On the other hand, the gift to the Dominican Convent in Cocks v. Manners[36] was held to be not charitable, because the facts were such as to prevent the primâ facie inference from arising.

[29]

I shall now consider whether there is anything in the rest of the bequest which will prevent that primâ facie inference from being drawn. The remaining words are as follows: - "... to be used and expended wholly or in part as such Archbishop may judge most conducive to the good of religion." Mr. Woolcock contended that these words allow the Archbishop a discretion to apply the whole or any part of the gift to purposes other than religious purposes, or to apply it to purposes which he may consider conducive to the good of religion, whether they are in fact religious purposes or not. I do not think it necessary to follow in detail the reasoning by which the argument was supported. It may well be conceded that the language used by the testator is grammatically capable of that construction. But it is in my opinion at least equally capable of another meaning, and one which is more in harmony with the language of the bequest as a whole. The purpose of the gift is stated clearly and definitely in the opening words, and those words must in my opinion be read, for the reasons I have before stated, as a gift to the Archbishop for the benefit of the Catholic religion of the diocese. If there were nothing more, that would be a good charitable gift, imposing on the Archbishop, as trustee, the obligation of applying it to that charitable purpose; he could apply it to no other without breach of trust. The words that follow are merely directions as to the selection of objects within the ambit of the charity and as to the manner of expenditure. The trustee is to use and expend the gifts on such objects "as he may judge most conducive to the good of religion in the diocese." The latter phrase naturally implies a comparison of different objects conducive "to the good of religion in the diocese." On what ground can it be assumed that the trustee is authorized to include in the comparison objects outside the charitable purpose, so definitely stated in the first words of the bequest? Further, the gift is to be used and expended in whole or in part, at the trustee's discretion, on those objects within the ambit of the trust which he may select as being most conducive to the good of religion in the diocese, after having made the comparison which the testator directs him to make. That interpretation of the latter part of the bequest does no violence to the language used, is in harmony with the earlier part, and makes the bequest a consistent whole. On the other hand, the meaning which the appellant seeks to attach to the latter part is entirely inconsistent with the language of the earlier part. Having used expressions, in the first part of the bequest, which plainly constituted the Archbishop and his successors trustees for the benefit of religion, it would seem to be highly improbable that, in the next sentence, he should have expressed the intention to permit the present or any other Archbishop, who might for the time being occupy the See of Brisbane, to apply the whole gift or any part of it to his own personal purposes. Again, as it is pointed out in the judgment of the Supreme Court, the appellant's interpretation gives no force to the word "most." It would certainly appear to be somewhat futile to direct a trustee to expend and use the gift on objects selected by him as most conducive to the good of religion out of all the religious purposes of the diocese, if he is by the next few words allowed a discretion to disregard the comparison, the selection, the whole charitable purpose of the gift and apply it, if he thinks fit, to his own personal uses. The language of that part of the bequest to which I have been referring is grammatically capable of either of these contending interpretations. It is the duty of the Court to adopt that which is the more likely to represent the real intention of the testator, as it is to be gathered from the bequest as a whole. On that principle I hold that the interpretation which I have suggested is that which ought to be adopted. It gives effect to every word the testator has used, makes every part of the bequest consistent in itself, and is entirely in accord with the general purpose of the testator, which is to be gathered from the bequest as a whole. I have come to this conclusion after careful consideration, much aided by the reasoning of the learned Judges of the Supreme Court in whose conclusions I entirely concur, and by the very able arguments of counsel on both sides.

[39]

It was urged that they are attachable to the words which follow. But apart from other difficulties, there is this, that it is nonsense to say "a part" of the residue could be more conducive to the good of religion than the whole, and therefore to give any sensible meaning to the phrase the words must be altered. And the principle contained in the words of Lord Davey already cited forbids our doing violence to the language of the will or importing words into it to make the purpose legally charitable, merely because the testator tried to do something which he considered laudable, but which the law declares impossible, or because he may have thought he had actually done what the law permits. These words must therefore have their primary meaning, and to alter that meaning by placing compulsion on the Archbishop for the time being and his successors to use the whole fund for the purpose would be creating an intention that the testator, judging him by the manifest import of his words, never for a moment entertained. This is sufficient to determine the case. But I may express my considered opinion as to the rest. Finding the unlimited discretion as to amount very materially influences my mind as to the meaning to be placed on the succeeding words. These words might, by a somewhat strained construction, possibly be capable of sustaining the interpretation suggested by the respondents. At best it would be strained, and to justify it at all at least no other part of the bequest should be opposed to it. But once the true effect of "wholly or in part" is ascertained, it helps to elucidate what follows. If the testator was prepared to leave to the trustee's discretion the amount he would choose to expend for the purpose desired, he would certainly be prepared to leave him the same unfettered discretion as to the methods to be employed, piously indicating the indefinite goal he desired to keep in sight - the good of religion in the diocese. No one could know better than the Archbishop what was calculated to promote that end - so evidently reasoned the testator looking at his language as a whole - and he was apparently prepared to accept the judgment of the Archbishop as to the proper means of attaining the good of religion in that diocese, and therefore as to what objects would be most conducive to secure it - meaning by "most conducive" the most conducive among all possible means of contributing to "the good of religion in this diocese," according to the understanding of the Archbishop for the time being. It is quite clear that, leaving the trustee at large in that manner, no trust for charity controllable by the Court has been constituted, even supposing the fatal defect previously mentioned did not exist.

[45]

The main difficulty arises from the words "wholly or in part." Assuming for the present that the object indicated is charitable, is the beneficial interest in the whole of the residue devoted to that object? The appellant says that it is not - that the words are equivalent to saying that the Archbishop is free to apply only so much as he thinks fit to the haritable object, and that the destiny of the rest is left blank. The appellant would treat the words "wholly or in part" as referring to the total amount of expenditure for the charitable object named, and not to the mode of expending the money - "wholly or in part." If the words were "wholly or in parts," I suppose that no one would seriously support the appellant's view, yet "in part" (the singular) would seem to be appropriate if each successive expenditure be regarded. However, the words - taken by themselves - are, perhaps, capable of two meanings - either that the Archbishop may, if he choose, expend only part of the fund for the charitable object named; or that each successive Archbishop, so long as the fund, or any part of it, remains, may apply it, either wholly or in part to the charitable object; leaving (in the latter case) a balance to be afterwards applied, either by himself or by his successors. This much, at all events, is clear, that the Archbishop is meant to be a trustee of the whole residue, not to take it for his personal use or benefit. For the residue is to be "handed" (not given) to him and his "successors." These latter words cannot here have force as words of limitation, but they may fairly be weighed in considering what the testator had in his mind. They imply a possible succession of holdings, and a possible succession of expenditures. All this tends to favour the view that the words in question refer to the mode of expenditure for the object named, rather than to the amount which may be expended on that object. Moreover, if the contrary view is to be accepted - if the successive Archbishops were meant by the testator to be free to spend as much as they liked for the good of religion, and to spend the balance for any other purposes - there is no force in the reference to the good of religion. Where was the use of allowing them to spend as much as they chose for the good of religion, if they were to be free to spend as much as they chose for that purpose or any other purpose? If the appellant is right, the testator has not only used words of qualification which do not qualify the gift, but he has also left a gap in his will. He has said to what object the Archbishop may apply all or part of the residue; but he has omitted to say what was to be done with any balance not so applied; and yet if anything is clear, it is clear that the Archbishop was to be a mere trustee - not to be the beneficiary as to any part of the fund. Who was to be the beneficiary? There is a time-honoured presumption that a man who sits down to make a will intends to dispose of all his property - to say who is to get the benefit of it: and this presumption against a chasm is especially applicable to a gift of residue, such as this gift (Ibbetson v. Beckwith[42]; Leake v. Robinson[43]. This presumption is, of course, of no avail against clear words, or lack of words; but it may well be applied where there are two interpretations equally possible, and where one interpretation involves an inexplicable hiatus in the will, and the other does not; where one interpretation gives effect to all the words of the will, and the other makes some words foolish and unnecessary. I am referring, of course, to the hiatus as to the beneficial interest, not as to the trust; for there is no doubt as to the trustee taking the whole, and only as trustee; and I am referring to the hiatus left (as alleged) by the words of the will, not to any intestacy created by any rule of law as to charities. For this would be to beg the question. For my part, I can see nothing to prevent us from treating the word "as" in the phrase "as such Archbishop may judge," in the widest possible sense as to manner and time or times - as meaning (with the words "wholly or in part") that the successive Archbishops may spend the residue either at one time or for one institution, or at several times or for several institutions - at their discretion - a discretion bounded by "the good of religion in this diocese." There is really nothing to indicate that the discretion of the Archbishop is to determine the total amount that is to go to the good of religion.

At a glance

Court

Decision date

Before

Source

Judgment (67 paragraphs)

Byrne v Dunne [1910] HCA 75; (1910) 11 CLR 637 (16 December 1910)

Parties

Cases Cited (1)