Sydney Homoeopathic Hospital v Turner - [1959] HCA 19 - HCA 1959 case summary — Zoe

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Sydney Homoeopathic Hospital v Turner

[1959] HCA 19

High Court of Australia|1959-07-01|Before: Menzies JJ, Myers J

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Source facts

Court

High Court of Australia

Decision date

1959-07-01

Before

Menzies JJ, Myers J

Source

Original judgment source is linked above.

Judgment (62 paragraphs)

[1]

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto and Menzies JJ. Sydney Homoeopathic Hospital v Turner [1959] HCA 19

[2]

ORDER Appeal allowed. Discharge so much of the order appealed from (1) as declares that the words at such time in the expression in case there shall be no such hospital established in Sydney or its suburbs at such time contained in the will of the said testator (so far as they affect the distribution by the trustees annually as in the said will provided of the final balance of income of the said testator's estate exclusive of the special provision by earmarking authorized by the said will) do not refer to the twentieth day of November One thousand nine hundred and fifty-three but refer to the day for the making of each annual distribution by the trustees, and (2) as declares that the defendant the Sydney Homoeopathic Hospital is not now entitled to be paid either of the following amounts standing to the credit of the account styled Trustees of the late William Moore - Homoeopathic Hospital, Suspense Account with the A. and N.Z. Savings Bank referred to in the said affidavit of Telford Graham Gilder sworn the twelfth day of March One thousand nine hundred and fifty-eight namely (a) the sum of Five hundred pounds (£500) paid into the said account on the fifth day of April One thousand nine hundred and fifty-six together with Savings Bank interest accrued thereon (b) the sum of Five hundred and seventy-five pounds (£575) paid into the said account on the thirtieth day of October One thousand nine hundred and fifty-six together with Savings Bank interest accrued thereon BUT that the Committee appointed or approved by the Committee of the Congregational Union of New South Wales is entitled to be paid each of the said amounts. In lieu thereof declare (1) that words at such time in the expression in case there shall be no such hospital established in Sydney or its suburbs at such time (so far as they affect the distribution by the trustees annually in the said will provided of the final balance of income of the said testator's estate exclusive of the special provision by earmarking authorized by the said will) refer to the twentieth day of November One thousand nine hundred and fiftythree; and (2) that the defendant the Sydney Homoeopathic Hospital is now entitled to be paid each of the following amounts standing to the credit of the account styled Trustees of the late William Moore - Homoeopathic Hospital, Suspense Account with the A. and N.Z. Savings Bank referred to in the said affidavit of Telford Graham Gilder sworn the twelfth day of March One thousand nine hundred and fifty-eight namely (a) the sum of Five hundred pounds (£500) paid into the said account on the fifth day of April One thousand nine hundred and fifty-six together with Savings Bank interest accrued thereon and (b) the sum of Five hundred and seventy-five pounds (£575) paid into the said account on the thirtieth day of October One thousand nine hundred and fifty-six together with Savings Bank interest accrued thereon. The costs of all parties of this appeal to be paid out of the estate of the testator, those of the trustees as between solicitor and client.

[5]

The Sydney Homoeopathic Hospital was first established in the year 1902. The objects of the hospital were to afford gratuitous medical and surgical aid under the homoeopathic system to sick persons in destitute circumstances and to others upon such terms of payment as the board of management determined. The board of management was chosen by subscribers. Apparently the testator was numbered among the subscribers. It was many years before the hospital was incorporated. That was done by the Public Hospitals Act 1929 N.S.W.. But throughout its history the statement of its objects has remained unchanged. The testator's will, which was considered by this Court in Congregational Union of New South Wales v. Thistlethwayte [3] , contains a disposition in favour of the hospital, the present effect of which is the matter to be determined in the appeal. The validity and to some extent the operation of the disposition were dealt with in the earlier proceedings first in the Supreme Court and then in this Court [1] . The subject of the disposition is a third share of the final available balance of income of the estate after the happening of certain events and it takes the form of a direction as to the distribution of the final available balance of income annually after the happening of certain events. What events sufficed was decided in the earlier proceedings. A clause in the will enabled the trustees, with judicial approval, to appropriate funds, "ear-mark" them the will calls it, to answer other dispositions. If that were done, so it was decided, the "events" would be constituted upon the happening of which the direction would take effect. An appropriation has now been made: it was judicially approved on 20th November 1953, and we must take it that on that day there was a fulfilment of the condition expressed by the initial words introducing the trust which contains the disposition in favour of the hospital. The words are "I direct that upon the happening of the events aforesaid my Trustees shall thereupon distribute the final available balance of income of my said estate annually in the following manner". After providing for doubling at that time the amount of certain charitable bequests the will directs the trustees to divide the residue of the balance of income in three equal parts as near as may be and provides for the disposition of each third part. The clause with which the appeal is concerned follows next. It is short and is in these words. "They shall pay over to the Sydney Homoeopathic Hospital one-third of the residue aforesaid and in case there shall be no such hospital established in Sydney or its suburbs at such time I direct my Trustees to pay the same to a committee which shall be appointed or approved by the said Committee of the said Union to be applied to the founding or maintenance of such a Hospital." The "said Union" is the Congregational Union of New South Wales. The committee of that union has appointed or approved a committee for the purposes of this clause and the latter committee is a party to the present proceedings. Some things are clear about this clause and some other things have been made clear in the earlier proceedings by judicial decision. It seems clear enough that the trustees are directed to pay over to the institution, that is to say to the governing body, one-third of the residue of the balance of income unless or, according to one view, until "there shall be no such hospital established in Sydney or its suburbs". I have said "according to one view until" because of a contention as to the meaning and effect of the words "at such time" in the phrase "and in case there shall be no such hospital established in Sydney or its suburbs at such time". The view is advanced, and it is the view accepted by Myers J., that "at such time" does not refer simply to "the happening of the events aforesaid" upon which the duty to distribute the final available balance of income arose but refers to the recurring occasions, annual doubtless, of paying over income, so that if at any time it could truly be said that no such hospital was, that is to say remained, established in Sydney or its suburbs the income would become payable to a committee appointed or approved by the Committee of the Congregational Union to be applied to the founding or maintenance of such a hospital. With all respect this is a view of the operation of the words "at such time" which I cannot adopt. The words appear to me to refer to the time when the events happened upon which the available balance of income became distributable. Only one point of time is denoted by the words and it is the time of "the happening of the events aforesaid"; accordingly, we must now take it to be 20th November 1953. Unless at or before that time it can correctly be said that there is "no such hospital established in Sydney or its suburbs" the direction to pay one-third of the residue of income to the hospital takes effect and the alternative direction to pay the same to a committee appointed or approved by the Committee of the Congregational Union cannot afterwards come into operation. If thereafter a failure occurs for any reason of the gift to the hospital of annual income the question of the future application of the income will depend not on that clause but upon the rules of law.

[7]

It is clear enough that the hospital is a charitable object. In the former proceedings two declarations were made by Roper C.J. in Eq. as to the disposition in favour of the Homoeopathic Hospital. One of them was affirmed expressly and the other impliedly by this Court. One was expressed as a declaration that the direction in the will to pay over to the Sydney Homoeopathic Hospital one-third of the residue of the final available balance of income and in case there shall be no such hospital established in Sydney or its suburbs at such time to pay the same to a committee to be appointed or approved in the manner provided is valid and effective. By the second declaration it was declared that the Sydney Homoeopathic Hospital is entitled to the said one-third share subject to the possibility of defeasance in the event of there being within the meaning of these words as used in the will no such hospital established in Sydney or its suburbs when the time arrives at which the testator has directed the distribution of the final available balance of income of his estate. The decretal order containing these declarations was made on 20th March 1951. According to the construction given to the will as explained above, it was two years and eight months later, namely on 20th November 1953, when the time arrived at which, as the foregoing declaration expressed it, the testator had directed the distribution of the final available balance of income of his estate. It will be noticed that the second declaration contains a positive statement that the hospital is entitled to the third share of income, that is, of course, subject to the possibility it proceeds to describe. The declaration is speaking, of course, as at the time it was made and therefore is speaking of the incorporated body. No doubt the declaration could not do otherwise than so deal with the corporate body. It was the necessary result not only of the continuity of the institution of which the will speaks notwithstanding incorporation, but also of the terms of the statute, that is to say, of ss. 18 et seq. of the Public Hospitals Act 1929-1943 to which this judgment will refer again later. As the events had not then happened upon which the balance of income became distributable the declaration necessarily left open the possibility in the meantime of what it calls defeasance. But except for that the title of the Sydney Homoeopathic Hospital to payment of one-third of the residue of the final balance of income is established by the combined operation of the declarations, of the construction of the will that has been adopted in the earlier decision and the foregoing interpretation of the words "at such time". The question that remains is whether there has been an actual defeasance, to continue the use of the word employed by the declaration, because on 20th November 1953 there was "no such Hospital established in Sydney or its suburbs".

[10]

The facts upon which the view of Myers J. is founded are simple enough. As the years have passed there has been a progressive disappearance of the resort to homoeopathic treatment as once in use and of late years there have not come to the hospital patients who seek it or medical practitioners who employ it. For a long time after its foundation in 1902 there were medical men in Sydney who practised medicine according to the principles of homoeopathy and these or some of them attended the hospital. The hospital itself seems to have stocked homoeopathic medicines and so far as hospital treatment went to have followed homoeopathic principles. In 1941 the last homoeopathic medical practitioner in attendance at the hospital retired and it was found impossible to discover any homoeopathic medical practitioner who could be induced to attend or use the hospital. The matron went on for a time giving homoeopathic treatment but in 1945 she too left the hospital. The hospital is not a large one: apparently it could not accommodate more than twenty-five in-patients together with two or three children. But one bed has always been maintained exclusively for a possible patient requiring homoeopathic treatment, should one appear or be sent by some homoeopathist unexpectedly arising. These facts were deposed to in 1950. They were before the Court in the earlier proceedings but our conclusion was that "the institution as it now exists is still in our opinion, the same institution as that named in the will" [1] . In the reasons leading up to this conclusion the judgment of four judges made this statement: "Although patients at the hospital do not now receive homoeopathic treatment because there are no visiting doctors who practise that system, it is not established that the system has completely or finally disappeared. The hospital still has the same objects as it had in 1902. The practice of homoeopathy is not active in Sydney at present. But it is active in other parts of the world." [1] Since 1950 there has been no change in the manner in which the hospital has been conducted in relation to homoeopathy. The bed is available for the accommodation of the hypothetical homoeopathic patient or of any patient the hypothetical homoeopathist may send. But it has not been used. The secretary of the hospital and the chairman of the directors say that if they had the money enabling them to make a full-time appointment to the staff of a homoeopathic medical practitioner they would endeavour to find one which doubtless means abroad; but they say that they have not the money to do this. The fact seems to be that the cult of homoeopathy no longer has votaries in Sydney willing to enter its temple and submit themselves to its mild but perhaps outmoded precepts. The temple, however, remains open and will receive any straggler of the faith to which it was originally consecrated, if there be one. Does this mean that it has lost its identity? Rather is it not a question whether the specific purpose of the institution can no longer be fulfilled? Nothing the institution has done has turned it away from homoeopathy. It is simply that, at all events in Sydney in common with the rest of Australia, homoeopathy would seem to have been a dying medical creed. The evidence tells us little, if anything, about the tenets of homoeopathy and to what extent, where and in what form they are now held. But I suppose that we may look for the history and meaning of homoeopathy in encyclopaedias of repute. They at all events contain nothing weakening the inference one would draw from common experience, namely, that now homoeopathy has in practice lost all place as an independent system of medical treatment. Indeed it seems probable that the homoeopathists of former times saw no lasting antithesis between their principles and general medicine. It is perhaps for that reason that some homoeopathists were ready to claim that in the most dramatic advances in the treatment of disease occurring later support might be found for the basal general doctrine propounded by the author or authors of homoeopathic medicine. All this lends point to the distinction which for present purposes may be not unimportant between the hospital turning away from homoeopathy and homoeopathy as an independent system of medicine languishing and dying or, if it is preferred so to state it, being drawn in and merged in the development of the general corpus of modern medicine. One may be sure that there was not on the part of the hospital an intentional abandonment of its homoeopathic character. It is simply that there are neither patients nor doctors seeking to use the hospital or any other place for any special form of treatment that can be recognized as homoeopathic. If this means that at 20th November 1953 the Homoeopathic Hospital could no longer be considered the object of the disposition in the will of one-third of the residue of the balance of income, it is for a reason that must destroy the alternative direction that the income be applied for the founding or maintenance of such a hospital. For if there be a failure of the primary gift for the Sydney Homoeopathic Hospital simply for want of homoeopathy in Sydney it would be absurd to put into execution the alternative direction to apply the moneys in establishing another homoeopathic hospital in Sydney or its suburbs in order to supply the same non-existent want or to pursue the same futile end. It will appear even more absurd if the relation is considered of the amount of the third part of the residue of the annual income to the probable cost of providing even the smallest homoeopathic hospital. For the disparity is so great as to make such a thing hopeless.

[12]

The foregoing considerations combine to bring the determination of the case down to the question whether any and what intention as to the consequence of the disappearance of homoeopathy can be extracted from the inadequate and imperfectly articulated language of the clause relating to the Sydney Homoeopathic Hospital. Did the testator advert to the possibility of homoeopathic treatment and homoeopathic medical practice falling into such disuse as to leave the homoeopathic objects of the hospital without subject matter? Is there any reasonably certain intention to be discovered in what he has written that in such an event the Sydney Homoeopathic Hospital though prepared to serve the purposes of homoeopathic practitioners and patients if any there were was not to receive the share of income? The primary direction is to pay over to the Sydney Homoeopathic Hospital one-third of the residue of the balance of income from the estate. If the hospital had not been incorporated before the time arrived for carrying the direction out, the primary object of the trust to pay would have been an unincorporated body formed for a charitable purpose. The charitable purpose gave validity to an indefinite gift of income otherwise tending to perpetuity. But the charitable nature of the gift arose from the objects of the body. The position is that described in a passage in the judgment of Herring C.J. in Re Godfree [1] . It is part of a longer passage which among other authorities is considered in a useful article on Charitable Corporations Taking Income in Perpetuity by Dr. H. A. J. Ford: (1953) 26 A.L.J. 635. The learned Chief Justice said: "The trustees are not bound to do more than hand the income over to the treasurer or other appropriate officer of the institution, and this is expressly provided in the will in this case. The charitable nature of the gift derives from the fact that the purposes and objects of the institution are themselves charitable, for it is presumed that a gift to such an institution without more is to be held for its general purposes and objects. The devotion to charity is effected by the institution itself applying the income each year as it is received to its purposes and objects. It is with an obligation so to apply the income each year that it receives it" [2] . The foregoing statement is applicable to an unincorporated body as the Sydney Homoeopathic Hospital was. The rules under which such a body is organized sufficiently govern the application of the funds, it would seem, to justify the classification of a trust in its favour as charitable. The incorporation of the hospital, which took place on 1st November 1929 when the Public Hospitals Act 1929 came into operation, supplied a new legal person and provided a new system of government for the institution, but otherwise left the considerations very much the same upon which the right of the institution turns to the third part of the residue of the balance of income of the estate. The persons incorporated were the subscribers but the sense of that term was defined: ss. 18 (1) and 21. It was provided that any reference in any instrument to a hospital included in the schedule of those incorporated should be construed as a reference to the body corporate into which such hospital was constituted by the provision: ss. 18 (1) (4). "Instrument" is a very wide word and although it does occur in a context which speaks of statutory documents there seems to be no reason why it should not be construed so as to include a will. Indeed to construe the word "instrument" more narrowly would tend to defeat part of the intended operation of the enactment. If it were true that on the footing that the hospital had never been incorporated the events which have happened would have worked what according to the terminology of the decretal order of Roper C.J. in Eq. is a defeasance of the disposition in favour of the hospital, then there will be a like defeasance notwithstanding its incorporation. But the defeasance must be the result of extracting from the elliptically expressed clause which ensues upon the direction to pay the share of residual income to the hospital some clear condition operating upon the events that have occurred to defeat the primary disposition. In construing the clause and determining whether it contains such a condition, the principles governing the interpretation of provisions relied upon as defeating a primary gift must be applied. You do not lightly make implications or unnecessarily extend the scope of what is expressed. The critical words in the clause are "and in case there shall be no such Hospital at such time". The words take a future point of time and state the hypothesis that then there shall be no such hospital. "Such Hospital" refers back to the Sydney Homoeopathic Hospital. That is the name of an institution, existing at the time when the will was written and it is clearly identified by its correct title. It may be conceded at once that its title is connotative, for the word "Homoeopathic" as well as the word "Hospital" connotes characteristics of the institution so named. It may further be conceded that the word "such" in the expression "in case there shall be no such Hospital" is not equivalent to the word "said" but is a relative meaning more than "said": it imports similarity as well as identity. The phrase "in case there shall be no such Hospital established" means in case neither that hospital nor one of like characteristics shall be established. The like characteristics demanded are of course those connoted by the word "homoeopathic" or arising from the homoeopathic purpose of the institution. The word "established" is unexpected and its use is not easy to understand. The testator was personally associated with the Sydney Homoeopathic Hospital which had been established for some years before he wrote his will. Unless the word is but an echo of an old will, it must be explained as a compendious expression implying the possibility of, so to speak, the disestablishment of the Sydney Homoeopathic Hospital before the contemplated point of time and the failure to establish another in Sydney or its suburbs. But what is more important is the assumption involved in the direction that follows. The assumption is not that homoeopathy has declined so that there are no homoeopathic practitioners and no homoeopathic patients which a homoeopathic hospital can attract. It is that for some other cause the Sydney Homoeopathic Hospital has been disestablished or has gone and that homoeopathic practice or the desire of patients to resort to homoeopathic treatment calls for the founding of a homoeopathic hospital. The word "maintenance" comes in somewhat oddly or illogically at the end. For it seems to suppose the existence of such a hospital notwithstanding that the hypothesis is to the contrary. But no doubt it represents a train of thought involving the possibility of a homoeopathic hospital being afterwards established independently of the income of the testator's estate and so providing in its need for maintenance an object to which that income might be applied.

[14]

However that may be, it remains true that the essential meaning of the condition is elucidated by the direction over. It is dealing with the possibility of the Sydney Homoeopathic Hospital either closing or disappearing and it may be with the possibility of its deserting its function as the homoeopathic hospital of Sydney so that another will be required. It is not dealing with the possibility of its vainly seeking homoeopathic patients and the attendance of homoeopathic practitioners and because none come employing its beds and its staff to serve the demand that does come, the demand for modern medical and surgical treatment. Counsel for the next of kin was asked to formulate the condition which according to his contention was to be found in the clause. He did so in terms which required that at the time contemplated the hospital should be then treating patients according to the principles of homoeopathy or at all events should be qualified and prepared so to treat such patients and offering to do so. It may be remarked that the Sydney Homoeopathic Hospital seems to have tried to fulfil such a test and has not failed for any cause lying with the institution. But a proper interpretation of the provision made by the testator discloses no intention that the share of the residue of the balance of income should be diverted from the institution he knew and named because in the course of time an event occurred, which apparently he did not contemplate, namely that homoeopathy as a distinct theory and practice of medicine was lost in the general progress of medical treatment so that at length the response failed to the Homoeopathic Hospital's readiness to serve homoeopathic practitioners and patients. A homoeopathic revival in Australia would be very unexpected but if it occurred the Sydney Homoeopathic Hospital remains as the hospital for the occasion. But as it was on 20th November 1953 the hospital cannot, in my opinion, be regarded as anything but the institution mentioned in the will and, on the proper interpretation of the will, the events which had occurred did not work any defeasance of the disposition in favour of the hospital.

[21]

The dispositive provisions of the will relating to the period after the death of the widow are contained in clauses numbered "firstly" to "ninthly". The first three relate to the payment of outgoings and of remuneration for certain services to be rendered to the estate. The fourth, fifth and sixth provide for payments to three female relatives of the testator and the seventh for the payment of small annual sums to certain charities which are named later in the will. The eighth provides for the making of certain conditional payments to certain relatives and other persons who also are specified later in the will. The ninth clause (the clause with which we are immediately concerned) is a long clause which makes what is really a residuary gift of annual income. So far as it is now material, it begins with the following direction: "I empower and authorize my Trustees if in their discretion they deem it to be practicable and expedient so to do to make special provision by earmarking a certain portion of my estate or the income thereof or otherwise for the payment of the conditional aid and support herein provided to be paid to the beneficiary relatives and others hereinafter mentioned" (i.e. the persons referred to in cl. 8) "and I direct that having made such provision to the satisfaction of a judge of the Supreme Court of the said State my Trustees may then distribute the final balance of income of my said estate exclusive of such special provision annually as hereinafter provided." After certain ancillary directions cl. 9 proceeds: "I direct that immediately upon the death of the last surviving relative or other beneficiary the balance of any such special provision shall be applied to the remaining trusts of this my Will. I direct that on the happening of the events aforesaid my Trustees shall thereupon distribute the final available balance of income of my said estate annually in the following manner namely They shall pay to each of the charitable and religious institutions hereinafter named a sum equal to double the amounts provided to be paid to them on the death of my said wife and as to the residue of the said balance of income I direct my Trustees to divide the same in three equal parts as near as may be as follows that is to say They shall pay over to the Sydney Homoeopathic Hospital one-third of the residue aforesaid and in case there shall be no such Hospital established in Sydney or its suburbs at such time I direct my Trustees to pay the same to a committee which shall be appointed or approved by the said Committee of the said Union to be applied to the founding or maintenance of such a Hospital." Then follow dispositions of the other two-thirds of the residuary income, as to which no question now arises.

[22]

In the previous proceedings before this Court it was held (Kitto J. dissenting) that the gifts of income to the three residuary beneficiaries, though indefinite in point of time, did not take effect, and could not be made to take effect, as gifts of corpus. The Court held, however, that because the objects of all those beneficiaries were charitable, the gifts of income in perpetuity were valid and effectual gifts, vested in interest as at the date of the testator's death. With regard, however, to the gift to the Sydney Homoeopathic Hospital it had been argued before Roper C.J. in Eq. (although the time for distribution under the residuary gift had not then arrived) that, by reason of a change in the character of the institution known as the Sydney Homoeopathic Hospital, the gift over to the Committee of the Congregational Union had before 1950 taken effect. His Honour said, in rejecting this argument: - "There is a valid bequest to the Sydney Homoeopathic Hospital but it is subject to the possibility of defeasance if that hospital is not in existence at the time when the trustees are directed to distribute the final available balance of income It is premature now to consider what would be the effect of that hospital then not being in existence I am of opinion that as yet there has not been such a change in the objects and purposes of the Sydney Homoeopathic Hospital as to destroy its identity as it now exists with the institution named in the will." His Honour originally proposed to declare accordingly that the Sydney Homoeopathic Hospital was entitled to one-third of the final available balance of income, subject to the possibility of defeasance in the event of the hospital not being in existence when the time arrived for distribution of that final balance. On further consideration, however, his Honour said that he would alter the wording of the declaration "so as to bring the condition of defeasance into line with the actual words used in the will", and the two relevant declarations actually made by the decretal order were (1) "that the direction in the will to pay over to the Sydney Homoeopathic Hospital one-third of the final available balance of income and in case there should be no such hospital established in Sydney or its suburbs at such time to a committee to be appointed or approved in the manner provided is valid and effective", and (2) "that the Sydney Homoeopathic Hospital is entitled to the said one-third share subject to the possibility of defeasance in the event of there being within the meaning of those words as used in the will no such hospital established in Sydney or its suburbs when the time arrives at which the testator has directed the distribution of the final available balance of the income of his estate." On the appeal to this Court no alteration was made in either of these declarations.

[25]

It is convenient to deal first with the words "at such time" in the phrase "in case there shall be no such Hospital established in Sydney or its suburbs at such time." Those three words, if it were not necessary to look beyond the residuary clause itself, would present little difficulty. It would seem clear enough that they refer to the words "immediately upon the death of the last surviving relative or other beneficiary", and that the persons referred to in those words are the persons referred to in cl. 8. One would regard the use of the plural "events" in the direction which follows as a little curious, but one would not regard it as raising any real difficulty. Roper C.J. in Eq. did not find it necessary to look beyond the residuary clause for the meaning of the words "at such time", because he held and declared that the "earmarking" provision, which occurs near the beginning of cl. 9, was not a valid and effective provision. On the appeal to this Court, however, this declaration was reversed, and it was declared that the earmarking provision was a valid and effective provision [2] . The trustees acted on this view. On 9th November 1953 they passed a resolution earmarking for the purposes of cl. 9 certain Commonwealth Bonds and Metropolitan Water Sewerage and Drainage Board Bonds of a total face value of some £10,000, and on 20th November 1953 McLelland J. made an order approving of the provision made by the resolution and authorizing the distribution of any final balance of the income of the estate annually as from the date of the order. The trustees now hold in their hands two sums of £500 and £575, the distribution of which is authorized by the order of McLelland J. There is thus a "final balance of income" available for distribution under the residuary clause before the death of the last survivor of the persons referred to in cl. 8, and the words "at such time" must be interpreted in the light of this fact, which the testator must be assumed to have contemplated.

[26]

Myers J. held that the question whether the gift over had operated to defeat the initial gift to the Sydney Homoeopathic Hospital had to be considered as at the end of each year at which the trustees had in their hands a final balance of income available for distribution under the residuary clause. In other words, his Honour interpreted the words "at such time" as referring toties quoties to successive points of time at which such income should become so available. I am with respect unable to accept this view. Almost the only thing in the whole case that seems clear to me is that the words "at such time" refer to a single fixed point of time which, as the testator assumes, will in due course be once and for all ascertained. The words themselves are not, as it seems to me, capable of referring to anything but a single fixed point of time, and the point of time which is intended is not far to seek. Prima facie it is the date of the death of the last survivor of the persons referred to in cl. 8. Prima facie, at that date and not before, there will be a final balance of income available for distribution under the residuary clause. But the date when there will or may be a final balance of income so available may be accelerated. It will be accelerated if the trustees exercise the "earmarking" power and the exercise of that power is approved by the Supreme Court. The words "at such time" must, therefore, be understood as meaning "the date of the death of the last survivor of the persons referred to in cl. 8 or the date of the approval by the Supreme Court of an exercise of the "earmarking" power, whichever first occurs." In the events which have happened, the relevant date is 20th November 1953, and it is as at that date that the question whether the Sydney Homoeopathic Hospital takes under the residuary clause must be determined. If it does take, I do not think it takes subject to any trust to use the money for "homoeopathic purposes", or to any trust under the will. As soon as money is paid to it, the trusts of the will are completely performed, and the only relevant trusts are to be found in the charter of the corporation itself. There is nothing inconsistent with this view in what was said in the majority judgment of this Court in Congregational Union of New South Wales v. Thistlethwayte [1] . This Court is there looking to the future, but it is looking to the future as from a point of time at which there has been no exercise, and may never be any exercise, of the "earmarking" power.

[29]

On the other hand, I would think it reasonably clear that there would be no defeasance merely because the hospital, in the temporary or continuing absence of any demand for homoeopathic treatment, had (instead of allowing its facilities to be wasted) dealt with casualties and midwifery and surgical and medical cases generally. Probably the generality of such cases would be dealt with in much the same way whether they were under the care of a homoeopathic or an "orthodox" practitioner. There is no evidence (and I should think it highly improbable) that the hospital ever in its life dealt exclusively with medical cases suitable for homoeopathic treatment. In this connexion it is, I think, relevant to observe that we have also no evidence before us as to the nature, function and scope of "homoeopathy", but an interesting (though brief) article in the Encyclopaedia Britannica (1928 and 1953 - s.v. Homoeopathy) strongly suggests that it would be a great mistake to think that the whole field of medical and surgical practice is divided into two mutually exclusive compartments - the homoeopathic and the non-homoeopathic. The homoeopath does not reject modern medical discoveries. He claims the success of modern serum-therapy as a corroboration of the central theory of his school. The article quotes from the title page of the volumes of the Transactions of the American Institute of Homoeopathy: "A homoeopathic physician is one who adds to his knowledge of medicine a special knowledge of homoeopathic therapeutics. All that pertains to the great field of medical learning is his by tradition, by inheritance, by right." Conversely, the article strongly suggests (as does also the different article in the 1881 edition) that, while much of what Hahnemann taught in and after 1796 has been generally rejected, the teaching of the homoeopathic school in fact made a considerable impact on traditional medical practice, and a good deal of that teaching has been absorbed over the years in "orthodox" medicine.

[34]

This appeal, from a portion of a decretal order made by the Supreme Court of New South Wales (Myers J.) raises questions as to the true construction of the will of William Moore deceased. The Court has already considered the will to some extent in the case of Congregational Union of New South Wales v. Thistlethwayte [1] . In the majority judgment in that case a summary was made of the provisions of the will which were material to the questions then under consideration [2] , and what follows is to be read in conjunction with that summary. The Court decided, inter alia, that in the events which had happened the trustees were entitled to make the special provision authorized in the part of the will commencing "Ninthly", by earmarking a certain portion of the estate or the income thereof or otherwise, for the payment of certain conditional aid and support to a number of beneficiary relatives and others. That part of the will contains a direction that, having made such provision to the satisfaction of a judge of the Supreme Court, the trustees may then distribute the final balance of income of the estate, exclusive of the special provision, annually as thereinafter provided. Some directions are then given as to the earmarked fund, ending with a direction that "immediately upon the death of the last surviving relative or other beneficiary" the balance of the special provision shall be applied to the remaining trusts of the will. The next few lines of the will contain the words which have now to be construed. They are: "I direct that on the happening of the events aforesaid my Trustees shall thereupon distribute the final available balance of income of my said estate annually in the following manner namely They shall pay to each of the charitable and religious institutions hereinafter named a sum equal to double the amounts provided to be paid to them on the death of my said wife and as to the residue of the said balance of income I direct my Trustees to divide the same in three equal parts as near as may be as follows that is to say They shall pay over to the Sydney Homoeopathic Hospital one-third of the residue aforesaid and in case there shall be no such Hospital established in Sydney or its suburbs at such time I direct my Trustees to pay the same to a committee which shall be appointed or approved by the said Committee of the said Union to be applied to the founding or maintenance of such a Hospital ". Then follow dispositions of the other two-thirds. The reference to the Committee of the Union is to the Committee of the Congregational Union of New South Wales.

[39]

The contention thus upheld, though at first sight supported by some expressions used in the reasons for judgment, does not give full effect to the context, and in particular to the decision that the gift to the Sydney Homoeopathic Hospital, though defeasible, vested in interest as from the testator's death. In the light of that decision, the expression "on the happening of the events aforesaid" must be understood as fixing only the time for the commencement of payments, and as referring to the death of the last survivor of the beneficiaries described in the will as the beneficiary relatives and others or the making of the special provision by earmarking, whichever first happens. This suggests at once the answer to the question, much debated during the argument, whether the later expression, "at such time", in the provision for defeasance, is of recurring application at the end of each year, or applies once only, namely, on the happening of one of the events upon either of which the distribution of the final available balance of income is to commence. Apart from the happening of one of those events, there is no "time" previously referred to which can be the subject of the reference, unless it is inferred by the use of the word "annually" which occurs twice in the relevant portion of the will. If the end of each year had been intended, the word "time" would almost certainly have been "times"; but, even apart from the singular number of that word, the whole phrase "at such time" is an unnatural and unlikely form of words to use in expressing an intention that the existence of the specified state of facts is to be considered afresh every year. Moreover, the intention is itself inherently improbable if "no such hospital" means, as I think it does, "neither the Sydney Homoeopathic Hospital nor any other similar hospital"; for while there might be no such hospital at the end of one year, there might be such a hospital at the end of the next, and the absurd situation would then arise that the committee appointed or approved by the Committee of the Congregational Union would have received only a limited amount of income, perhaps only the income of a single year, with which to found or maintain such a hospital. That could hardly have been within the testator's intention. The conclusion seems irresistible that "at such time" means at the time when one of the alternative conditions precedent to the distribution of the final available balance of income is fulfilled. Indeed, the view that the provision for defeasance applies separately to each annual distribution is inconsistent with the terms of the decretal order made by Roper C.J. in Eq., and affirmed by this Court in the earlier litigation. Question 16 in the originating summons asked whether the beneficiary entitled to the one-third share of the residue of the final available balance of income (if the direction as to it was valid) was the present appellant the Sydney Homoeopathic Hospital. The decretal order made by the learned primary judge answered this question by declaring that the Sydney Homoeopathic Hospital was entitled to the said one-third share, subject to the possibility of defeasance in the event of there being within the meaning of the words used in the will no such Hospital established in Sydney or its suburbs when the time should arrive at which the testator directed the distribution of the final available balance of income of his estate. Question 15 asked whether the direction was valid and effective, and the decretal order declared that it was. The order of this Court on appeal left both answers unaltered. The reason which led the learned primary judge to give to question 16 an answer which preserved the possibility of a future defeasance was that he thought the question whether the institution bearing the name "the Sydney Homoeopathic Hospital" answered the description contained in the will would not arise for decision until the final balance of income should become distributable, and he considered that the power of the trustees to bring that event about by means of earmarking was not presently exercisable. But the terms in which the answer was expressed indicated clearly the view that "at such time" referred to a single point of time. This Court differed from his Honour to the extent of holding that the power of the trustees to make a special provision by earmarking, and so make the final balance of income annually distributable, was exercisable immediately; and it therefore went on to consider whether the Sydney Homoeopathic Hospital as it then existed answered the description in the will. The Court held that it did. Nevertheless the words of qualification in the answer to question 16 were left standing. This was necessary, for there remained a possibility that some material change in the situation might occur before the earmarking should actually take place. But if the Court had considered that the defeasance provision was applicable distributively to each successive year's income the answer which had been given to question 16 in the court below would inevitably have been commented upon and would probably have been altered. Accordingly, the interpretation which Myers J. placed upon the words "at such time" in deference to the opinion which he understood that this Court had indicated in the earlier case cannot be sustained.

[40]

The next question is whether, at the crucial date for the operation of the defeasance clause, namely 20th November 1953, the condition was fulfilled which is expressed in the words "in case there shall be no such Hospital established in Sydney or its suburbs at such time". A committee appointed by the Committee of the Congregational Union, contending that the defeasance occurred, submits that "such" refers to the possession by a hospital of a recognizable homoeopathic character. The appellant, on the other hand, denies that "such" refers to any character or quality possessed by the Sydney Homoeopathic Hospital. In the expression "at such time" which occurs a little later, the word means no more than "that": it there draws no comparison. Why, then, says the appellant, should not the condition "in case there shall be no such Hospital established" be understood to mean simply "in case that Hospital (the Sydney Homoeopathic Hospital) shall not be in existence"? The answer is that the context provides no justification for such a departure from the prima facie meaning of the word "such". The natural meaning is "no hospital of the same kind as that which has been mentioned"; and since the hospital which has been mentioned was, as the testator knew when he framed his will, distinguished from others by the homoeopathic character of the treatment it provided, some strong reason would surely have to be found in the context if "such" were not to be understood as insisting upon the possession of the same distinguishing characteristic. That is the sense it obviously has a little later in the same passage in the will, where income is directed to be applied to the founding or maintenance of "such a Hospital". It is true that on this construction there is a hiatus in the will, for there are no words of gift to any homoeopathic hospital other than that referred to in the initial gift. But that is not a very telling consideration; the will has many peculiarities, and such a hiatus might well exist as a result of inadvertence on the part of the draftsman.

[42]

The contention fails to give sufficient weight to the fact that when the will was framed the name "the Sydney Homoeopathic Hospital" signified both the hospital as a going concern (so to speak) and an unincorporated association which conducted the hospital through a board of management. The association comprised a class of contributors to the hospital funds, and its only object, as stated in its rules, was "to afford gratuitous medical and surgical aid under the Homoeopathic system to sick persons in destitute circumstances and to others upon such terms of payment as shall from time to time be determined by the Board of Management". The testator used the name in a will which, although it has a good deal of the artificial about it, is not remarkable for precision either in expression or in thought. The natural meaning to attribute in the circumstances to his direction to pay income to "the Sydney Homoeopathic Hospital" is that the payment should be made to the unincorporated association (i.e. to the trustees appointed to hold property under its rules) to be applied for the purposes for which the body existed: cf. In re Tyler [1] ; Royal College of Surgeons of England v. National Provincial Bank Ltd. [2] . The gift cannot possibly have been intended as a gift to a body of persons taking beneficially, so that moneys received under it might be diverted to new purposes by decision of the board of management or agreement of the members, or might be distributed amongst the members in a winding-up. There is, I think a strong implication of an intention that, through the medium of the unincorporated association, the relevant income should be devoted to the purposes which that association announced by its rules and was serving by carrying on its hospital. Such an implication must often arise upon a gift to a body which exists for specific purposes of an altruistic nature, and especially where the name used in the words of gift fits indifferently an activity serving such purposes (as for instance a hospital) and the body which carries it on. In such a case, the use of the name is apt to conceal an omission to distinguish in thought between the one and the other, so that the name is really a portmanteau description signifying that the governing body is to be the recipient but is to take upon trust for the furtherance of the activity.

[44]

Not, of course, that a trust arises in every case of a gift to a body established for limited objects. The nature of the objects may have provided the donor with the motive for his gift, and yet the gift may be a beneficial gift entitling the body to apply the property as it sees fit within the scope of its powers as they exist from time to time. Property given to a company, for example, is not necessarily held on trust for the objects stated in the company's memorandum of association, nor is property which is given to a chartered corporation necessarily held on trust for application in accordance with the charter. But if the objects of a body are limited to altruistic purposes, it is as an instrument of altruism that it is likely to attract benefactions. Very often, to say the least, it will be a proper inference, when a gift is made to such a body, that the donor intends the gift to operate as a devotion of the subject property to the relevant purposes, and that the donee accepts it as such. Where that is the case all the elements necessary for the creation of a binding trust are present. Accordingly a gift which would be invalid unless it operates to create a charitable trust may be upheld because, when the objects of the body which is the donee are taken into consideration, an inference arises that the gift is upon trust for charitable purposes (or for charitable purposes and others which are no more than ancillary). This was exemplified in the earlier proceedings concerning the testator's will. A majority of the Court was of opinion that a perpetual gift of income does not carry the corpus if an intention appears that it shall not do so, and that where that intention appears the gift is invalid unless it is for charitable purposes. The majority judgment upheld the gift with which we are now concerned as being a perpetual gift of income not carrying the corpus, but nevertheless valid because the appellant was, as the unincorporated body had been before it, a charity. The view which I took may be summarized by saying that a gift of income without limit of time necessarily carries the corpus if it is valid, but that it is invalid (as regards the beneficial interest) if it is effected by means of a trust which purports to make the beneficial interest perpetually inalienable, unless the trust is for a charitable purpose. I regarded the unlimited gift of income to the Sydney Homoeopathic Hospital as a gift of corpus operating, if it operated at all, as a perpetual devotion of the beneficial interest to the purposes which were being served at the testator's death by the body known to him as the Sydney Homoeopathic Hospital; but I was in favour of upholding it nevertheless, because I shared the opinion that the purposes were charitable. On either view of the matter, the double conclusion, that the disposition of the relevant one-third share of income was valid and that the incorporated body (the present appellant) was entitled under it, could not have been reached merely by pointing to the provision in s. 18 (4) of the Public Hospitals Act 1929-1949 N.S.W. which requires that a reference to the Sydney Homoeopathic Hospital in any instrument is to be construed as a reference to the present appellant. The reasoning employed will be found, if it is analysed, to cover three main points: first, that the gift was saved from invalidity by the fact that it created a charitable trust; secondly, that the present appellant was to be identified as the body to take the money and perform the trust; and, thirdly, that the appellant was in a position to perform the trust, because its hospital was the same hospital as that in which the will intended the trust to be carried into effect, for although no patients were currently being sent to it for homoeopathic treatment it was still offering such treatment to any patient who might seek it, and the homoeopathic system was not shown to have completely or finally disappeared.

[45]

The result of the foregoing is that the argument cannot be accepted which fastens upon the answer to question 16 in the earlier originating summons as establishing that the gift to the Sydney Homoeopathic Hospital is a beneficial gift to a named body, with no reference to the kind of hospital it conducts, so that when later the will uses the expression "no such Hospital" it cannot mean a hospital distinctively homoeopathic. In my opinion "such" insists upon the particular description which "homoeopathic" conveys. The question consequently arises whether, at the date of the earmarking, which occurred more than two and a half years after the date of the Supreme Court's decretal order in the earlier proceedings, there was established in Sydney or its suburbs any hospital which could properly be described as homoeopathic. Admittedly there was none unless it was the appellant's hospital. The appellant turns once more to the earlier judgment of this Court, and would have us say that no such change is shown to have occurred in the ensuing two and a half years as to justify a conclusion different from that to which we previously came. If the appellant's hospital still had in March 1951 a sufficient connexion with homoeopathy to enable it to be identified as the same hospital which the testator had in view for the application of his gift, why, it is asked, should it not be described as homoeopathic in November 1953? To approach the matter along these lines, however, would be unsound. Whether the appellant's hospital could fairly be described as homoeopathic in November 1953 must be decided on the evidence as to the state of affairs which existed at that date, including the length of the entire period which had elapsed since any homoeopathic treatment was given in the hospital. There is no need to recite the details of the evidence. It seems to me to show quite plainly that whatever may have been the proper view to take on evidence relating to an earlier point of time, by the date with which alone we are here concerned the appellant's hospital was homoeopathic in name alone. Its connexion with homoeopathy in practice was a thing of distant memory. Under the provisions of the Public Hospitals Act, it was in the same position, as regards the methods of treatment to be employed, as any other public hospital in New South Wales, and it had become, over a period of years, a complete stranger to the application of the homoeopathic system.

[51]

The ground upon which his Honour decided was in substance that the Sydney Homoeopathic Hospital had ceased to be a homoeopathic hospital at any relevant date and I agree with him that it had. The facts, in summary, are: (i) that the hospital had been established in 1902 with a constitution containing the following object: "The objects of the Hospital are to afford gratuitous medical and surgical (sic) aid under the Homoeopathic system to sick persons in destitute circumstances, and to others upon such terms of payment as shall from time to time be determined by the Board of Management"; (ii) that in 1911, the time of the death of the testator who had been a homoeopathic practitioner, the hospital was being carried on in conformity with that constitution; (iii) that 1941 was the last year in which homoeopathic treatment had been given by a doctor in the hospital; (iv) that between 1941 and 1945 some homoeopathic treatment was given in the hospital by the matron but no homoeopathic treatment whatever had been given in the Hospital since 1945; (v) that since some unspecified time (but presumably long before 1945) non-homoeopathic treatment had been given at the hospital and since 1945 non-homoeopathic treatment was the only treatment that had been given; (vi) that since 1945 the hospital has observed the practice of keeping vacant one bed out of a total of twenty-seven for what has been called a "homoeopathic patient"; (vii) that at some unspecified date (probably prior to 1945) the hospital did advertise once and advertised in vain for a homoeopathic doctor to give treatment there; (viii) since 1945 the hospital could not afford to employ a homoeopathic doctor full-time; (ix) that if there were sufficient funds the board of the hospital "would endeavour to induce a homoeopathic practitioner to carry on his practice in connexion with this hospital"; (x) that the objects clause referred to in (i) has not been changed or deleted unless it was superseded when in 1929 the hospital was incorporated under the Public Hospitals Act 1929 N.S.W.; (xi) that unless it was authorized to do so by the Public Hospitals Act 1929 the hospital would seem to have been carrying on and affording non-homoeopathic treatment without authority.

[57]

The following relevant inferences can, I think, be properly drawn from the testator's will: (1) that the testator wanted part of his estate to be used to maintain a homoeopathic hospital in Sydney; (2) that the Sydney Homoeopathic Hospital was the primary object of his bounty but the testator envisaged the possibilities that it might go out of existence or perhaps that it might move away from Sydney or its suburbs before the time for distribution arrived in what might well be a far distant future; (3) that the testator did not intend that the gift should fail if the Sydney Homoeopathic Hospital went out of existence or left Sydney and its suburbs before the time for distribution arrived if at that time another homoeopathic hospital had been established in Sydney; (4) that nevertheless the gift was to the Sydney Homoeopathic Hospital or the committee and not to any other hospital. With these things in mind I have come to the conclusion that the contingencies created by the words "in case there will be no such Hospital established in Sydney or its suburbs" did not go beyond the Sydney Homoeopathic Hospital either having gone out of existence or having left Sydney and its suburbs and that, in particular, they do not cover something which might well have been foreign to the deceased's way of thinking, namely, what has in fact happened that the Sydney Homoeopathic Hospital should have kept its identity and remained in Sydney but should have ceased to provide homoeopathic treatment. I consider, therefore, that the words "no such Hospital" refer to the Sydney Homoeopathic Hospital and not to any hospital where homoeopathy is practised. The opposite conclusion would, I think, result in a lacuna in the event of the Sydney Homoeopathic Hospital having gone out of existence and a new homoeopathic hospital having been established before the time arrived for the distribution of the final balance of the income of the testator's estate. This conclusion also gives greater certainty to the language of the contingency than the alternative construction would. On the other hand it must be conceded that the words "no such Hospital" could readily enough be regarded as meaning "no hospital giving homoeopathic treatment" and that the later words "such a Hospital" do mean "a hospital to give homoeopathic treatment". These considerations are, as I see it, outweighed by those in favour of regarding the words as a reference to the Sydney Homoeopathic Hospital.

[59]

It remains for me to examine the decision of this Court in Congregational Union of New South Wales v. Thistlethwayte [1] to ascertain whether the conclusion that I have reached from an examination of the will itself is in any way inconsistent with the earlier decision. It appears that from the course that appeal took attention was inevitably directed upon the question whether the Sydney Homoeopathic Hospital was in 1950 or 1951 a homoeopathic hospital, but I do not regard the decision as one that the gift to that hospital could not take effect unless it should have a homoeopathic character when the time for distribution should arrive in the future. It seems to me that the majority judgment [2] is dealing with two questions. The first, and the one that has present significance, is whether the Sydney Homoeopathic Hospital as it existed was identical with the Sydney Homoeopathic Hospital named in the will and to this an affirmative answer was given, as the following citations show: "But it was contended that the gift fails because there is no longer a hospital which answers the description in the will." "We agree with his Honour" (that is, Roper C.J. in Eq.) " "As yet there has not been such a change in the objects or purposes of the Sydney Homoeopathic Hospital as to destroy its identity as it now exists with the institution named in the will" " [1] . "The hospital is now incorporated under the Public Hospitals Act 1929-1949 N.S.W. " "The institution as it now exists is still, in our opinion, the same institution as that named in the will. If this identity should disappear at some future time the committee appointed by the committee of the Congregational Union may be able to establish a new homoeopathic hospital" [2] . These quotations, except possibly what might be extracted by implication from the words of Roper C.J. in Eq., support the conclusion that I have reached that the essential question here is one of identity. The second question was whether the Sydney Homoeopathic Hospital was a charitable institution. It had been argued that it was not "on the ground that there is no evidence that homoeopathic treatment may be of benefit to the community or a considerable section of the community" [1] . That argument was rejected and in the course of its rejection the history of the hospital was traced and the state of homoeopathy in Sydney was referred to. It was in this connexion that reference was made to circumstances that might be regarded as supporting the conclusion of Roper C.J. in Eq. that in 1950 or 1951 the Sydney Homoeopathic Hospital was still a homoeopathic hospital. However that may be, in no part of the judgment do I find the element that the hospital should continue as a homoeopathic hospital treated, either expressly or by implication, as something that would be necessary in the future if the Sydney Homoeopathic Hospital were to take the gift made to it by the testator.