Nicholls v Public Trustee (SA) [1945] HCA 32

Nicholls v Public Trustee (SA) [1945] HCA 32 - HCA 1945 case summary — Zoe

[29]

Phillips, for the respondent Morialta Protestant Children's Home Incorporated. Section 23 of the Law of Property Act (8.A.) is aimed at cases where, apart from the section, the gift would be void. "Tllegal" means the type of condition which is contra mores or illegal in the strict sense of the term (In re Dickson's Trust (3) ). If the court finds that this is a condition precedent, it can upset the judgment appealed from only if the condition is bad on grounds of public policy. The first thing to seek is the intention of the testa- trix. In so far as the civil law applies, it merely furnishes a rule of construction and must yield to the context (In re Coward ; Coward v. Larkman (4) ). Clearly the present testatrix did not intend the appellant to enjoy her bounty unless and until the condition was fulfilled. The condition is not uncertain. What is contemplated is an overt act indicating that the appellant no longer belongs to the Roman Catholic religion (In re Evans; Hewitt v. Edwards (5) ). While it may be difficult to show that a person belongs to a particular faith, it may be easy to demonstrate that he has renounced it. Hence little assistance is derived from such cases as Clayton v. Ramsden (6); In re Blaiberg; Blaiberg v. De Andia Yrarrazaval (7). Nor is the condition contrary to public policy. In every case where that doctrine has been invoked, there has been a direct. interference with parental control. Instances are In re Borwick ; Borwick v. Borwick (8); In re Sandbrook ; Noel v. Sandbrook (9) ; In re Cross ; Law v. Cross (10) ; Perpetual Trustee Co. v. Hogg (11) ; In re Jones; Jones v. Baxter (12); Gower v. Public Trustee (13). In any case the appellant had reached the age of discretion and was able to exercise her own judgment as to matters of religion (Hodgson v. Halford (14); Gower v. Public Trustee (15)). The condition is not void for impossibility (In re Agar-Ellis; Agar- Ellis v. Lascelles (16); In re May; Eggar v. May (17); Public Trustee v. Gower ; Gower v. Public Trustee (18) ). [On the question of costs he referred to Dunne v. Byrne (19).]

[56]

In the next place, it is argued that the condition is void by reason of impossibility. This argument is based on the contention that no person under twenty-one years of age can either adopt or renounce a religion. The bald statement of this proposition seems to me to be sufficient to discredit it as opposed to ordinary human experience. It is supported, however, by a reference to In re May ; Eggar v. May (1), where Neville J. said : - " The result to my mind is that during the time until he reaches the age of twenty-one he cannot in the sense meant in the will be said to be either a Roman Catholic or not a Roman Catholic. In the eyes of this Court he cannot determine what his religion shall be until he has reached years of discretion." The learned judge, however, was interpreting particular provisions in a will. He construed the will as intended to provide that the legatee should exercise the religious option to which the will referred after, and not before, he had attained the age of twenty-one. After the legatee had attained the age of twenty-one the Court of Appeal considered the provisions of the same will (In re May; Eggar v. May (2)). There the Court of Appeal accepted, as a matter decided between the parties in the previous proceedings, that the beneficiary was not to be regarded as a Roman Catholic within the meaning of the will while he was a minor. Since attaining the age of twenty-one he had maintained his previous adherence to the Roman Catholic Church. He stated in an affidavit: "I am and have been all my life a Roman Catholic." This statement was accepted as decisive of the question. (I see no reason why a similarly clear statement as to renunciation of a faith cannot equally be accepted.) The decision of Luxmoore J. was that the beneficiary had become a Roman Catholic, and, accordingly, had forfeited his legacy. Neither Luxmoore J. (3) nor Romer L.J. in the Court of Appeal (4) gave any support to the view that it was impossible for an infant to determine what his religion was until he had attained his majority. I agree with Luwmoore J., who said : - ' For my own part, I should have thought that a person under the age of twenty-one could properly determine his adherence to a particular religion before attaining that age" (3). On this point see also Public Trustee v. Gower ; Gower v.

[94]

prejudiced by the proviso. There is no binding authority nor any principle requiring us so to hold. On the contrary, what little guidance there is tends, on the whole, to show that in the case of a woman marriage to an adult before full age ends the guardianship of the person (see Eversley's Law of Domestic Relations, 5th ed. (1937), Part IIL., ch. IV., s. 2 (a), p. 556, and Halsbury's Laws of England, 2nd ed. (1935), vol. 17, p. 693 and note (a) Jenks' Digest, par. 1989) and, even if that were not so, it would be hard to believe that the parental responsibility for upbringing could go on: Cf. Lough vy, Ward.(1), per Cassels J., who says : - * The law of England is that the father is the head of the family and has control over his children, their persons, their education and their conduct until they are twenty- one years of age or marry under that age." Some of the foregoing considerations are material to the question whether the proviso or condition is void for impossibility on the ground that, until twenty-one, the donee could not lawfully decide whether or not to renounce her religion. In May's Case (2) Neville J. said : - '"In the eyes of this Court he cannot determine what his religion shall be until he has reached years of discretion." But four- teen years afterwards, when the matter came before Luamoore, J. (3) he said : - ' With all respect to the learned judge, I doubt whether he is really correct in saying that in the eyes of the court a person cannot determine what his religion shall be until he has reached the age of twenty-one. For my own part, I should have thought that a person under the age of twenty-one could properly deter- mine his adherence to a particular religion before attaining that age." I think that we should act on the view of Luwmoore J., interpreting the will as meaning that a renunciation per verba de praesenti by the donee, whether of full age or not, would satisfy the condition. For these reasons, I think that the appeal should be dismissed and with costs. Appeal dismissed. Appellant to abide her own

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