Taylor v Taylor [1910] HCA 4

Taylor v Taylor [1910] HCA 4 - HCA 1910 case summary — Zoe

[8]

John Ralston, deceased, by his will, after specitically devising his real estate and bequeathing certain legacies, directed his trustees, subject to the payment of his debts, funeral and testamentary expenses and legacies, to hold his residuary estate : "Upon trust to divide the same as nearly as possible into three parts and to apply one of such parts towards the advancement of scientific research generally and the founding endowing or assisting any existing scientific institutions or any scientific institution which may hereafter be founded And to apply another of such parts for the purpose of founding endowing or assisting private institutions or homes in Tasmania or Victoria for the care and treatment of mentally affiicted persons as my trustees may in their absolute discretion select and to be paid or applied to or for such objects or institutions or homes if more than one in such proportions as my trustees may think proper And to apply the remaining third part for the purpose of founding endowing or assisting private homes for the treatment of sick or convalescent persons in cases where such persons can- not be treated in their own homes and it would not be advisable to send or place them in a public institution asylum or hospital and for the treatment of such persons who may be suffering from ill health or constitutional weakness and who may desire to avail themselves of such homes subject to the parties so applying being approved of and paying such fees as may be fixed by those having control and management of the said homes I authorize my trustees in their absolute discretion to decide and determine what portion of the third part or share in the residuary estate to be set apart for the purposes as aforesaid shall be applied for the various objects selected by my trustees to answer the said trusts with full power for my trustees to apply the capital or part of the capital of any such share or invest the same or any part thereof and apply the income only or any part thereof for the benefit of the objects from time to time selected or chosen by my trustees to benefit under the aforesaid charitable trusts and direc- tions I also authorize my trustees to postpone for such period as to

[90]

third, and what I have said as to the second may therefore be applied to it. But a further argument was adduced to show that in this case also funds of the trust could be applied to uses not charitable. This contention was that the third bequest contem- plated the foundation, endowment or assistance of two classes of homes. One of them, for the treatment of "sick or convalescent persons," would, it was admitted, be the subject of a valid charity, but the other, for the treatment of persons "suffering from ill- health or constitutional weakness," was to be open to such per- sons only on the payment of fees fixed by those who were to control this class of homes. Hence there was to be a class of homes to which the poor could not resort, and the option to apply money for their creation or aid vitiated the bequest. This argu- ment hangs entirely on an assumption which the testator's language does not warrant. The use of the word "such" in the phrase "and who may desire to avail themselves of such homes" is strong to show that the allusion is to the homes for the sick or convalescent. But the sense is clear, apart from that con- sideration. There is to be only one class of private homes under this branch of the bequest. It is to be for the treatment of sick or convalescent persons in certain cases. But it 1s not to be con- fined to that purpose, for it is also to admit as paying patients approved invalids, who, desiring to avail themselves of the homes for the other class - the sick or convalescent - may apply to be admitted. Any other construction can only be supported by "private homes" before the second part of the passage. The sense does not require such an insertion, there- fore there is no reason for it, especially as the effect of it is destructive to an otherwise clear charitable purpose. Given that there is only one class of homes, primarily for the poor, the admission to them of invalids able to pay does not affect the charitable intent. There is only one fault in this bequest, gram- matically considered, and that is in the erroneous employment of the word " who" in the phrase "such persons who may be suffer- ing from ill-health," &e. Had it read "such persons as may be suffering," &c., there would have been no fault to be found on the score of correctness, albeit the phrasing might have been improved to suit the taste of the over-nice.

[120]

In Victoria and Tasmania there are no private institutions or homes of a purely philanthropic nature - at least, so far as is known to the Court or counsel - and to wait until such came into existence would, I fear, be equivalent to waiting for an indefinite period. That would be compelling one man's bounty to wait for another's. If the trust were to pay medical men or nursing attendants their ordinary fees for the care and treatment of the mentally afflicted it would be difficult to frame an objection; and the possession of a private home where comforts and curative methods are afforded cannot make any difference. The will looks to the benefit of the mentally afflicted, not to the profit of the owners of the homes; the former are objects of bounty, the latter the mere instruments. The end is unattainable without the means, and unless it be laid down that none but philanthropic channels are permissible to attain a charitable end, there seems to be no obstacle in the present case. A gift in perpetuity must be charitable. If it be a simple gift in perpetuity to an institu- tion, without more, then you have to examine the nature and constitution of the donee to ascertain if the purpose of the gift be charitable. Cocks vy. Manners (1) is an excellent example. The Selley Oak gift was good because the community of sisters there was a charitable association ; but the Dominican was bad as a charitable gift because the convent was not charitable. See this distinction adverted to by Farwell L.J.in In re Davidson ; Minty v. Bourne (2). But if the purpose is expressed, and it is charit- able, the character of the intermediary, whether a person or an institution, seems to me immaterial. Said Lord Westbury in Clephane v. The Lord Provost &e. of Edinburgh (8) in another connection, but laying down a principle which has an excellent application to the present case : - " You look to the charity which is intended to be created ; and you distinguish between it and the means which are directed for its accomplishment. Now the means necessary vary from age to age." And on p. 422 the

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Judgment (131 paragraphs)

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