In Re Will and Codicil of Walter Padbury, Deceased The Home of Peace for the Dying and Incurable v Solicitor-General [1908] HCA 72

In Re Will and Codicil of Walter Padbury, Deceased The Home of Peace for the Dying and Incurable v Solicitor-General [1908] HCA 72 - HCA 1908 case summary — Zoe

[52]

I need not repeat the terms of the gift upon which the question has arisen. The executors and trustees of the will have found it a difficulty to apply the gift to its subject matter by way of determining, not the property to be dealt with, but the classes of hospitals that are to be recipients of the testator's bounty. The gift is to trustees of hospitals, of course for the benefit of the hospitals. There are three constructions open - (1) The gift is perhaps limited to such hospitals as have trustees, co nomine, of their funds; or (2) the word "trustees" is to be rejected altogether ; or (3) the word "trustees" is to be interpreted as including such bodies as stand in a fiduciary relation to institu- tions of this kind or to the contributors to their funds, for the receipt and proper expenditure of those funds. Now the appellants contend, to begin with, that the Full Court were wrong in seeking and receiving evidence to show what hospitals existed in Western Australia at the dates of the will and the codicil respectively. Iam of opinion that their Honors were right in taking that course. It is evident from the question raised in the summons for advice and directions that the difficulty has been encountered in applying the words of the gift to their subject matter so as to ascertain the persons or institutions to which they actually refer and extend. A document remains inoperative until applied to its subject matter. For instance, a conveyance of a described parcel of land avails nothing until the land is ascer- tained to which the description has reference : and, further, if the words of a gift in a will, obviously referring to a single object or class of objects, are found to be applicable to more than one object or class, the only resort, wt res magis valeat quam pereat, is for the Court to inform itself, by evidence, of the surrounding facts, so far as to place itself in a position to say what single object or what single class of objects the testator was indicating. To do so much is not to contradict or to vary the testator's will - his wish

but to ascertain and give to it its proper meaning and effect.

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were and are those proclaimed and managed under and subject to the Hospituls Act 1894. 'Those of the second class were and are those established and equipped by the residents of various town- ships either with or without initial assistance from the Govern- ment, and afterwards managed exclusively by a committee of such residents, assisted yearly by the Government with a pound for pound subsidy, with an additional annual payment of £100 towards the salary of the medical officer employed by the com- mittee, and 25/- per week towards the treatment of indigent patients. The third class were and are hospitals established and governed by the government medical department at Perth according to regulations made by executive authority. The hospitals of the third class have no committees of management, do not come within the purview of the Hospitals Act 1894, are maintained wholly at the expense of the Government, and are under the sole charge of a medical practitioner usually called the " District Medical Officer," accountable only to, and directed and controlled only by, the government department mentioned. There were two hospitals of the first class in operation at the dates of the will and the codicil, namely those of Perth and Fremantle. Being under the Hospitals Act 1894 they were proclaimed and gazetted. They are supported by voluntary subscriptions as well as by parliamentary votes. Theyare governed by boards of manage- ment, which receive and administer all funds voted by Parliament, and all funds "contributed, given, or left to such hospital by benevolent persons." In prosecuting for offences in respect of any property, money or goods under their management and control, the Statute makes it sufficient to lay the property in the board of management. Where a sum larger than one-sixth of the average annual expenditure arises from contributions, with 10 per cent. interest, the contributors are entitled to elect one-third of the members of the board. If the contributions exceed one-fourth of such expenditure, the elected members may be one-half of the board. If the amount contributed exceeds one-half, the con- tributors are to elect the whole board. Of the second class of hospitals four existed at the date of the will. At the date of the codicil there were eight. As to the third class hospitals, seventeen

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trustees have paid and transferred the prescribed portions in the terms of the will their responsibility ceases, and thereafter the diocesan trustees and the trustees for the time being of the hospitals, lunatic asylums, and poor houses respectively, become responsible as trustees for the proper administration of the charitable funds transferred to them. On the face of the will, therefore, the carrying out of the testator's expressed intention in respect of these devises is safeguarded in the same way as in the case of the other devises to which I have referred. No doubt the general object of the testator's bounty may be described in Mr. Justice Rooth's words as "the poor and sick in body, the poor and sick in mind, and the poor and infirm in body from age or some other disenabling cause," but by using the word "trustee" he expressly limits his gift to such groups of these classes as are represented by persons or bodies of persons whose administration can be brought within the supervision and control of the Equity Court. That limitation is, in my opinion, an essential element of the description, and cannot be treated as negligible. "Trustee," using the word in its ordinary sense, has been well defined by Brett LJ., afterwards Lord Hsher,in Wilson y. Lord Bury (1), in these words : - " Trustee is a person holding the legal title to property under an express or implied agreement to apply it, and the income arising from it, to the use and for the benefit of another person, who is called the cestui que trust." A person or body of persons who undertakes to administer in the interests of a charity moneys received by them for that purpose are answerable to a Court of "Equity for any diversion of the charitable fund from its purposes on the ground that they occupy in relation to the donors and the beneficiaries the position of trustees. In the broad sense of the term such persons and bodies of persons are trustees, and, having regard to the well known and generally recognized methods of managing charities supported by donations from the public, they must, in my opinion, be taken to be included within the expression " trustees" as used by the testator. Interpreting, therefore, the words of the will in their natural and ordinary sense, they disclose an intention on the part of the testator to confer his bounty upon such hospitals,

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Judgment (89 paragraphs)

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