MELBOURNE v Lawtor.

MELBOURNE v Lawtor. - [1934] HCA 14 - HCA 1934 case summary — Zoe

[22]

the establishment of a newspaper, as that word is always understood, even though qualified by the word 'Catholic,' is not a charitable object either within the original meaning of the Statute of Elizabeth or within the extensions which have been given to those objects by judicial decision." 2. That the direction contained in the will that the income from the benefaction mentioned in question 1 be used for Catholic education or any good object the Hierarchy may decide until sufficient funds are in hand to found the daily newspaper was invalid. The Court's opinion as to this was : - '' The income given for the purpose of Catholic education is not an independent gift, but a gift of income resulting from the benefaction before mentioned for the purpose of founding a newspaper ; property is set aside to be applied to the founding of the newspaper as soon as sufficient funds are in hand to justify that being done; and then follows a gift of the income in the meantime. The gift is a gift of the income from that benefaction, and that benefaction failing there is no fund to satisfy the subsequent gift, because there is no fund to provide the income." 3. That the gift of one-half of the balance and remainder of the testator's estate to the Hierarchy, in addition to the bequest mentioned in question 1, to establish a Catholic daily paper was invalid. As to this the Court said : - " We are unable to adopt the construction suggested, namely, that that gift might be regarded as a simple gift of half the residue to the Hierarchy without more, and not as a gift to be added to the bequest already made to establish a daily newspaper. Notwithstanding some grammatical difficulties, we think the intention appears to be to supplement by this second bequest the fund already provided by the shares for the establishment of the newspaper." 10. That the funeral, testamen- tary and administration expenses, debts and Victorian probate duties and the pecuniary legacies were payable out of the bonds and stock of the testator not specifically bequeathed in or by the will. On this question, as to how the debts and liabilities of the testator and probate duty were to be borne, the Court said : - " The way in which these burdens are to be borne as provided by secs. 33 and 34 and the Second Schedule of the Administration and Probate Act 1928 is subject to any contrary provision in the will. This has given rise to some difficulty. It has been contended by Dr. Brennan

[43]

Whether the gift of income following that gift is good, even assuming that the gift to found a newspaper is invalid? (3) Whether the additional bequest there made stands or falls with the earlier gift for a newspaper? Sec. 131 of the Property Law Act 1928 makes alternative gifts good as long as one is charitable. Two other questions arise: (1) What is meant by a Catholic daily newspaper, and (2) is a gift to establish such paper a charitable gift? The first question is self-explanatory, but if not the affidavit filed is admissible to explain it. The Full Court considered that because it was for a newspaper the gift could not be charitable. This is not correct. A Catholic newspaper contains ordinary news, but also articles which present the views of Christian religion as presented by the Catholic Church. Can you say that the gift has a dominant motive which is religious? If so, it is charitable (In re Scowcroft ; Ormrod v. Wilkinson (1) ). An essential feature of this gift is the furtherance of religion, and that is sufficient to make it a good charitable gift (In re Hood ; Public Trustee v. Hood (2)). If it is found that the dominant intention of the testator is the advancement of religion, the mere fact that the paper would provide secular information for secular readers does not annul the dominant intention (Thornton v. Howe (3) ). The test is, what is the effective end of what is being done? In this case the end is religious. The secular portion of the paper forms a means of securing readers or potential readers of the religious lessons contained in the paper. The inquiry in each case is one of substance (Re Charlesworth; Robinson v. Cleveland (Archdeacon) (4); Townsend v. Carus (5) ). If this is not a good religious gift, the question arises how far the gift was for the benefit of the public (In re Grove-Grady ; Plowden v. Lawrence (6) ; Hobart Savings Bank and Launceston Bank for Savings v. Federal Commissioner of Taxation (7) ). A bequest for a newspaper which supplies the public with a certain amount of religious teaching would be of a charitable nature.

[49]

Dunne v. Byrne (1) was not referred to the fourth class in Commis- sioners for Special Purposes of Income Tax v. Pemsel (2), and in the former case there was a gift to the Archbishop to be used and expended by him wholly or in part as such Archbishop might think most conducive to the good of religion in the diocese. There the Archbishop might have used the money for purposes which were not in any sense religious. The matter was also considered in In re Cranston; Webb v. Oldfield (3). This case was followed by In re Wedgwood; Allen v. Wedgwood (4). In order to bring the case within the fourth class in Pemsel's Case it must first be determined that there is some colour of charity within the meaning of the Statute of Elizabeth, and also that it is for the public benefit and not against morals. If the Court thinks that there is not sufficient of the religious element to bring it within the third class mentioned in Pemsel's Case, the Court may hold that its religi tenour would make it for the public benefit. The mere fact that the gift does disclose secular purposes is not inconsistent with the general tenour to promote morality. The second question arises in relation to the direction to use the income from the two previous benefactions for Catholic education, or any good object the Hierarchy may decide, until sufficient funds are in hand to found the daily paper and secure the farm. The Supreme Court has attributed an erroneous meaning to the word " benefactions," and has assumed wrongly that because the purpose for which an existing fund was brought into being was void, the income arising in the meantime was not to be paid as directed. The testator is here speaking about. a sum of money, and says that until the newspaper is established the income is to be used for Catholic purposes. The funds or sources exist, and nothing said here interferes with such fund, and until the day arrives, the Church will have the income for Catholic education. In any event this gift is saved by sec. 131 of the Property Law Act 1928, which protects the gift of income given until the establishment of the newspaper as being a good charitable gift. The bequest of the balance and remainder of his estate to be equally divided between the Pope and the Hierarchy is not impressed with a trust to establish

[117]

Ric J. These are two appeals raising questions under the will of the late Patrick Lawlor, who died on 6th October 1932 leaving a considerable estate. The first question is whether certain trusts upon which he directs that specific property and a share of his residue shall be held, are valid as trusts for charitable purposes. The trusts of the specific property are as follows: "To the Archbishop of Melbourne and the Bishops of Ballarat, Bendigo and Sale, my shares in the Herald and Weekly Times, Australian Paper and Pulp and Gordon and Gotch, as a nucleus, to establish a Catholic daily news- paper, to the same beneficiaries, my shares in Goldsbrough Mort and Company, to found a farm, or supplement those already secured, for the training of delinquent or orphan boys, to country life; the income from those two benefactions, to be used for Catholic education, or any good object the Hierarchy may decide, until sufficient funds are in hand, to found the daily paper and secure the farm." The residuary disposition of the estate is into two half shares. As to the second half share the will gives it in these words: " To the Hier- archy in addition to the bequest, already made, to establish a Catholic daily paper." Notwithstanding the contention that this is an independent gift to the Hierarchy untrammelled by conditions, I think that the words " to establish a Catholic daily paper " express a condition of the gift and are not merely a description attached to the words " bequest, already made." The substantial question to be decided is therefore, whether the gifts of property " to establish a Catholic daily newspaper " constitute a valid charitable bequest. Of course, in so far as the specific gift fails, the property intended to be thereby disposed of falls into residue, one half of which will, according to the decision of the question I have stated, go either to the next of kin as undisposed of or be held for the purpose directed by the testator. The Supreme Court of Victoria were " of opinion . . . that the establishment of a newspaper, as that word is

[120]

always understood, even though qualified by the word ' Catholie,' is not a charitable object either within the original meaning of the Statute of Elizabeth or within the extensions which have been given to those objects by judicial decision" (1). The appeal against this decision was supported on the ground that under the classification adopted by Lord Macnaghten in Pemsel's Case (2) the trust was for religious purposes or, alternatively, for a purpose generally beneficial to the public. Although the classification is acknowledged to be no more than an arrangement of existing case law and not the formulation of definitions, a tendency exists to treat the fourth class as a description, correspondence to which is sufficient to uphold a trust. This is a potent source of error. It has frequently been pointed out that cases falling under this class must come within the analogies recognized by the course of judicial decision as within the general scope of the Statute of Elizabeth. Unfortunately whether a given case not included within the first three classes falls within the fourth class can only be ascertained by familiarity with the decided cases. To my mind it is hopeless to treat this gift as charit- able for any reason except one based upon its religious tendency. I therefore turn to the question whether the gift can be supported as one charitable because for the purpose of religion. In considering this question one may, I think, take into account the known policy of the Roman Catholic Church, as stated in the affidavit of Father Power, of promoting the publication of daily newspapers under the control of the Church. At the same time, in the end, we must decide upon the testator's language what kind of publications would be permitted by the provision he has expressed. The notion of a daily newspaper necessarily carries with it the conduct of a business enterprise which could not ignore the temporal necessity of recovering outlay by revenue. However desirous the managers of such an enterprise might be of advancing the cause of the Roman Catholic faith, the means of doing so must bend to exigencies which no daily paper could defy. Indeed, the description "daily newspaper " ex vi termini makes the primary character of the publication the dissemination of news, and of some at least of the modern substitutes for news. No doubt both in what the paper would exclude and

[121]

what it would include its Roman Catholic character would be the determining factor. But it would remain a newspaper, although a newspaper conducted for Roman Catholics and directed to the advancement of Roman Catholic interests and beliefs. In the case of trusts for the publication of works or other literary matter in being at the time of the trust taking effect, the Court determines whether the trust is for a charitable object by an examination of the matter to be published (Zhornton v. Howe (1): Compare De Themmines v. De Bonneval (2) ). But in such a case as this, where the trust directs the publication of a periodical of a described character, all the Court can do is to ascertain the meaning of the description and consider whether a publication coming within it performs a function which falls within the legal conception of charitable. In the present case it is important to remember that all purposes of religion are not charitable, and that it is settled by high authority that purposes judged most conducive to the good of religion go beyond what the law allows to be charitable (Dunne v. Byrne (3)). A newspaper conducted as a vehicle aiding in the advancement of the Roman Catholic faith would, in my opinion, be a publication which could not be contained within the legal conception of charity. But I do not think that the advancement of the Roman Catholic faith is the only purpose included in the description "Catholic daily newspaper." It appears to me to include also the general benefit of the adherents to the faith, considered as a body having common interests, aspirations and aims. In my opinion the gift cannot be supported as a charitable gift. But it was suggested that sec. 131 of the Property Law Act 1928 (Vict.) applied in such a way to control the testator's definition of purposes that the Court could uphold the gift, but as for a modified and charitable purpose. This provision, which is peculiar to Victoria, appears to me to apply only where the purposes of the gift or bequest are severable, and to enable the Court to cast out from the category of purposes those which are non-charitable. I am quite unable to see in this case how any definite and ascertainable charitable purpose can be isolated and segregated out of the description

[132]

for the purpose, and all the cash bequests mentioned, the more readily saleable (advantageously realizable) to be sold to meet the liability ; the balance, if any, and the remainder of my estate shares etc., not mentioned or bequeathed, to be realized at an opportune

time, in an active market, and divided equally one half to Our Holy Father the Pope, for the propagation of the Faith, and the other half to the Hierarchy in addition to the bequest, already made, to establish a Catholic daily paper . . ." The Supreme Court of Victoria has declared the gift of shares as a nucleus to establish a Catholic daily newspaper, the gift of the income to be used for Catholic education or any good object the Hierarchy may decide, and the gift of one half of what I call the residue of the estate, to the Hierarchy, in addition to the bequest already made to establish a Catholic daily newspaper, are each and all of them invalid, and not charitable bequests. The decision involves a consideration of the Property Law Act 1928 of Victoria (No. 3754), sec. 131, but for the moment I pass by that section and consider the questions raised as if it had never been enacted. In my opinion, it is not necessary to wander through what Lord Sterndale M.R. described as " the tangle of cases as to what is and what is not a charitable gift" (In re Tetley; National Provincial and Union Bank of England v. Tetley (1) ), for the purpose of deter- mining whether the declaration of the Supreme Court was right or wrong. It may be that a gift to establish a Catholic daily newspaper is, in a general way, conducive to the good of religion and education, but Dunne v. Byrne (2) is quite decisive that it is not a good charitable gift. (See also In re Davidson ; Minty v. Bourne (3).) The objects and purposes of a Catholic newspaper are not, and can by no means be, confined to strictly charitable purposes. The conduct of such a paper is " open to such latitude " in the advancement and propaga- tion of the religious, education, social, political, economic and other views or policies of the Catholic Church, that no Court could control or execute the trust. It is equally clear that a gift " to be used for Catholic education, or any good object the Hierarchy may decide " is not a good charitable gift. "It is undoubtedly the law that,

[145]

is " properly described as property undisposed of by will" (In re Lamb (1); In ve Tong; Hilton v. Bradbury (2) ; Inve Worthington; Nichols v. Hart (3)). Again, it has been held that the order of application prescribed by the Administration of Estates Act, subject to variation by the provisions of the will, is that debts, funeral and testamentary expenses and legacies are primarily payable out of the property of the deceased undisposed of by will (In re Lamb (1); Inve Worthington (3) ). This Court is not bound by these decisions, but it seems desirable that we should treat them as an authoritative construction of the Victorian Act (cf. Seaton v. Horton (4); Trimble v. Hill (5) ). Unless this statutory order is varied by the will of the deceased, or by statute, the answer to the question above mentioned would be: Primarily out of the property of the deceased undisposed of by his will. But the learned Judges of the Supreme Court were of opinion that the will had varied the order of the application of the assets. This variation they found in the words "if the bonds and stock reserved for probate and any liability of mine, are insufficient for the purpose, and all the cash bequests mentioned, the more readily saleable (advantageously realizable) to be sold to meet the liability ; the balance, if any, and the remainder of my estate shares etc., not mentioned or bequeathed, to be realized at an opportune time, in an active market, and divided equally." In re Kempthorne; Charles v. Kempthorne (6) was relied upon, but in that case the residuary gift was " subject to and after payment of my funeral and testamentary expenses and debts and the legacies bequeathed by this my will." In Inre Tong; Hilton v. Bradbury (2) the words of the will were: "I direct my executors to collect the income from the remainder of my estate and to pay" as therein directed, and it was insisted that the word " remainder" must mean what was left after the funeral and testamentary expenses, debts and legacies had been paid. Romer L.J. (7) thus dealt with the matter : - ' There is nothing in this Act which prevents or is intended to prevent executors from paying expenses, debts and liabilities out of the first assets coming to their hands available for the purpose ;

[162]

In order to be charitable the purposes themselves must be religious ; it is not enough that an activity or pursuit in itself secular is actuated or inspired by a religious motive or injunction: the purpose must involve the spread or strengthening of spiritual teaching within a wide sense, the maintenance of the doctrines upon which it rests, the observances that promote and manifest it (cf. Keren Kayemeth Le Jisroel Ltd. v. Inland Revenue Commissioners (3) ). The purpose may be executed by gifts for the support, aid or relief of clergy and ministers or teachers of religion, the performance of whose duties will tend to the spiritual advantage of others by instruction and edification; by gifts for ecclesiastical buildings, furnishings, ornaments and the like; by gifts to provide for religious services, for sermons, for music, choristers and organists, and so forth; by gifts to religious bodies, orders, or societies, if they have in view the welfare of others. A gift made for any particular means of propagat- ing a faith or a religious belief is charitable ; moreover, a disposition is valid which in general terms devotes property to religious purposes or objects. But, whether defined widely or narrowly, the purposes must be directly and immediately religious. It is not enough that they arise out of or have a connection with a faith, a church, or a denomination, or that they are considered to have a tendency beneficial to religion, or to a particular form of religion. The law has found a public benefit in the promotion of religion as an influence upon human conduct ; but it has no standard by which to estimate what public benefit of that order is produced indirectly or incidentally by means which, although they may be considered to contribute to the good of religion, are not in themselves religious and do not serve directly a religious object. There have been many, and there are still some, provisions of the law, the maintenance or abrogation of which has been a matter of deep concern to adherents of one or other

[172]

disputed that a thing may be ' conducive,' and in particular circum- stances 'most conducive,' to the good of religion in a particular diocese or in a particular district without being charitable in the sense which the Court attaches to the word, and indeed without being in itself in any sense religious. In Cocks v. Manners (1), there is the well known instance of the dedication of a fund to a purpose which a devout Roman Catholic would no doubt consider ' conducive to the good of religion,' but which is certainly not charitable. In the present case the learned Chief Justice suggests by way of example several modes in which the fund now in question might be employed so as to be conducive to the good of religion though the mode of application in itself might have nothing of a religious character about it." The instances, which the learned Chief Justice (Sir Samuel Griffith) had suggested, appear from the following passage from his judgment (2) : - "It seems to me that purposes may reasonably be called conducive to the good of religion although they have no such direct tendency. For instance, it might well be said that a political propaganda for the purpose of procuring State endow- ment of churches or denominational schools, or the establishment of a newspaper conducted on religious or high moral principles, or the establishment of a contemplative order of nuns, would be purposes conducive to the good of religion. Certainly the Archbishop might reasonably think so. I do not at present see my way to deny such a proposition. But I do not think that either purpose would be a charitable purpose." His Honor, therefore, gave as an instance of a non-charitable purpose the very thing which the testator has directed, and apparently the instance gained the approval of the Privy Council. Perhaps the dictum of Griffith C.J., so approved, should be treated as decisive of the present question. But, without the help of this precise authority, the answer to the question would not appear to me to be doubtful. The character of the journal contemplated by the testator is indicated only by the phrase "a Catholic daily newspaper." There are no expressions referring to the purposes of religion. It is only such expressions that should be presumptively construed as charitable. The reference to religious objects must be contained, if at all, in the word " Catholic." But

[192]

contrariety between the will and the statutory directions. A will containing bequests of pecuniary legacies and residuary dispositions must mean that the residuary legatees shall take what is left after the deduction of pecuniary legacies. The payment of the legacies is meant to be prior to the ascertainment of the share of residue, which, ex hypothesi, lapses, and, according to the statutory directions, would provide the source of the payment. But the statutory rules have effect subject to any intention which appears from the will with reasonable clearness. Thus, in the course of his judgment in In ve Tong (1), referring to In re Lamb (2), Clauson J. says: "If on the true construction of the will the residue meant that which was left after the debts and funeral and testamentary expenses and legacies had been paid, the will itself could have made provision for the discharge of those payments, and recourse to Part II. of the Schedule would be unnecessary." But could true residue mean anything else? It appears to have been considered that a solution of the difficulty so arising is supplied by the existence of an express direction in the will for the prior deduction of legacies, debts or expenses in ascertaining residue. Such a direction has been treated as a sufficient indication that these burdens shall be regarded as discharged before the undisposed of residuary share is ascertained, and not out of that share. But effect is given to the statutory order in the absence of some such express direction, or, at any rate, of some reference to the deduction of these payments. In In re Lamb, the will gave specific and pecuniary legacies, and proceeded to direct that " the rest residue and remainder " of the estate should be divided into shares, one of which lapsed. Eve J. could "see nothing to exclude the application of the statutory order " (3), and threw the pecuniary legacies (4) as well as debts upon the lapsed share of residue. But, in In re Petty ; Holliday v. Petty (5), Astbury J. considered that the statutory order was displaced by the will because it directed conversion of the real and personal estate, and, out of the proceeds, payment of funeral and testamentary expenses, debts and legacies, and then disposed of "the residue of the said moneys" in moieties. He distinguished In re Lamb on the ground

[200]

my estate " in shares, one of which lapsed. Clauson J. said (1) : - "When I come to the final gift I find a disposition of the "remainder of my estate.' This I construe, in view of the preceding reference to estate duty, as a direction to pay the estate duty and the legacies out of the general estate before ascertaining the fund which is the subject-matter of the final gift; but I can find no direction dealing with funeral, testamentary and administration expenses, debts and liabilities, other than and except this estate duty. In order to ascertain how these expenses, debts and liabilities must be met I must, by reason of sec. 34, sub-sec. 3, of the Act turn to Part II. of the First Schedule." Accordingly the statutory order prevailed in the case of debts and the like, but not in that of legacies. This judgment was approved in the Court of Appeal. But Romer L.J. said (2) : - '"I fail to find anything in the will amounting to an indication of the testator's intention that the funeral and testamen- tary expenses and debts generally should be paid in any other mode than that specified in Part II. of the First Schedule. Even if the testator had directed his executors to pay all his funeral and testamen- tary expenses and debts and then given the remainder of his estate on certain trusts, I should still have hesitated to say that this amounted to an indication that the expenses and debts were to be paid in any other order out of the assets than that provided for in the First Schedule. The truth of the matter is that there is nothing in this Act which prevents or is intended to prevent executors from paying expenses, debts and liabilities out of the first assets coming to their hands available for the purpose ; and Part II. of the First Schedule really only deals with the ultimate adjustment of the burden as between the parties becoming entitled to the testator's estate. Therefore the use of such a word as 'remainder' does not seem to me to make any difference. Such words throw no light on how as between the persons having beneficial interests in the remainder the liability for expenses and debts is to be apportioned. On this point I agree with the learned Judge." (Cf. In re Littlewood ; Clark v. Littlewood (3).) In In re Worthington (4), the will bequeathed legacies free of duty, and then devised and bequeathed all the residue

[209]

The declaration of the Full Court now under appeal is based upon the view that the will provided how the debts and other charges and the legacies should be borne, and so displaced the statutory declaration which would have thrown them upon the property of the deceased undisposed of by will. The declaration, however, does not really solve the difficulty which has arisen. It declares that the legacies and charges are payable out of specific property which it describes as " not specifically bequeathed in or by the said will." But this means that, subject to the charge of debts and other outgoings and legacies, which the declaration imposes thereon, that very property forms a component part of the residue. Now the whole question relates to residue. The invalidity of the specific bequest for the establishment of a Catholic daily newspaper caused the specific property so bequeathed to fall into residue. Thus the question is whether the equal half share of the residue invalidly bequeathed to establish a Catholic daily newspaper should bear debts, charges, and legacies in priority to or ratably with the other half share of residue, the disposition of which is valid. Why should the fact, that specific assets forming part of residue are made the primary source for the payment of debts and other charges and legacies, affect the priority between the beneficiaries upon whom the shares devolve into which residue is divided? The division is of the beneficial property in the conglomerate mass of assets in which the specific assets required to answer debts, charges and legacies are contained, at any rate after and subject to that require- ment. The effect of the will may have been considered to be to withhold from that mass so much of the specific assets or their proceeds as is applied in payment of legacies, debts and charges so as to produce the result described by Lord Russell in the passage already quoted from Kempthorne's Case (1), namely, that the only estate as to which the testator has died intestate is a share of what remains after expenses, debts and legacies have in fact been paid thereout. But the declaration does not cover the adoption of that answer to the question in the summons. However the testator

[223]

establish a Catholic daily newspaper. I do not agree. It cannot be supposed that the testator became unmindful that he made other bequests to the Hierarchy in addition to the bequest to establish the newspaper. The true construction is, in my opinion, that the testator intended the gift of residue to augment the benefaction to the Archbishop and Bishops to establish a Catholic daily newspaper. The question which arises is whether the object of this gift is within the legal definition of charity. The object of the gift is a Catholic daily newspaper which is to be set up, with the aid of benefactions, by the Roman Catholic Archbishop and the Roman Catholic Bishops of the various dioceses of the Church in Victoria. The gift is immediately followed by a bequest to the same beneficiaries "' to found a farm, or supplement those already secured, for the training of delinquent or orphan boys " and by a direction that the income from the two benefactions should be used " for Catholic education, or any good object the Hierarchy may decide, until sufficient funds are in hand, to found the daily paper and secure the farm." The farm is clearly not an undertaking to be conducted for private gain. The money to secure the farm will be provided, if at all, by benefactors but not investors. The newspaper, as I understand the trust, is not to be established to earn profits for those who subscribe the money to start it. The word "Catholic" in the trust now in question imports the Roman Catholic Church, that is the religious institution known by that name. The trust is imposed upon the Archbishop and Bishops in their character as the holders of offices in the Roman Catholic Church. It is therefore a trust for the establishment by the Hierarchy of a " Roman Catholic Church " newspaper. It is not a trust for the establishment of a newspaper, by a body of persons who are identified as the holders of certain ecclesiastical offices, to be used by them for such purposes as they think fit. The trust is more limited than a trust to establish a newspaper for Catholic purposes. I think that, upon its true construc- tion, the trust is imposed upon the Hierarchy in their official character, and it is a trust for the establishment of a newspaper for the use or for the purposes of the Roman Catholic Church as a religious institution. Vou. LI. 4

[232]

There is no suggestion that a daily newspaper could not form part of the equipment and means which the Church may maintain and use for the instruction and edification of the public. Indeed, in the present case there is evidence which is contrary to that suggestion. Father Power in his affidavit said : - " One of the means adopted by the Catholic Church for the maintenance and propagation of the Catholic Faith and the advancement of the Catholic religion is the promotion of daily newspapers and other publications of the kind in as many countries as possible. These newspapers are used for the advancement of Catholic religion by defining its attitude towards moral problems of the day, defining its teachings on matters of faith and morals, and correcting and counteracting misrepresen- tations as to the history of the Church and its attitude towards problems both past and present. . . . The publication of daily newspapers which are under the control of the Catholic Church is part of the action of the Church in the same way as the publication of religious books, the promotion of lectures and sermons etc., for the advancement in the world of the Catholic religion. It appears, therefore, that the publication of a Catholic newspaper is regarded by the Church as tending directly to the instruction and edification of the public in matters relating to the Roman Catholic religion" (par. 2). '"'A Catholic daily news- paper established in Victoria under the control of the Archbishop of Melbourne and the other Bishops whose Dioceses are in Victoria would thus be engaged in a work the purpose of which would tend directly to the instruction and edification of the public. It would not merely be a newspaper conducted on religious or high moral principles, but it would be a newspaper conducted for the direct purpose of the advancement of the Catholic religion, using similar means for that purpose as are used in sermons from the pulpit and in lectures from the public platform" (par. 7). The publication of a newspaper is a recognized medium which the Roman Catholic Church adopts and employs for exercising its public religious mission. The purposes of the Roman Catholic Church are public and religious. The newspaper for which the testator made the gift would be owned and controlled by the Church. The object of the present trust is to effectuate public and religious purposes by providing for the

At a glance

Court

Decision date

Before

Source

Judgment (281 paragraphs)

Parties

Cited By (4)