Trustees of Church Property of Diocese of Newcastle v Ebbeck - [1960] HCA 88 - HCA 1960 case summary — Zoe

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Trustees of Church Property of Diocese of Newcastle v Ebbeck

[1960] HCA 88

High Court of Australia|1960-07-01|Before: Windeyer JJ

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Court

High Court of Australia

Decision date

1960-07-01

Before

Windeyer JJ

Source

Original judgment source is linked above.

Judgment (43 paragraphs)

[1]

High Court of Australia Dixon C.J. Kitto and Windeyer JJ. Trustees of Church Property of Diocese of Newcastle v Ebbeck [1960] HCA 88

[2]

ORDER Appeal dismissed. - The costs of all parties of the appeal to be paid out of the estate, the costs of the plaintiff being taxed as between solicitor and client.

[3]

Claude William Ebbeck of East Maitland, garage proprietor, made his last will on 10th February 1954 and died three and a half years later, namely on 22nd July 1957, leaving a not inconsiderable estate. He left him surviving a widow and three grown-up sons. He and his family were apparently Protestants but before the date of his will two of his sons had married wives of the Roman Catholic faith and his third son was about to marry a lady of that faith and subsequently did so. By his will, after appointing executors and trustees and bequeathing to his wife certain articles, furniture and household effects, the testator devised and bequeathed his real and residual personal estate to his trustees upon trusts for conversion and payment of debts etc. and to hold the surplus upon trust to pay the annual income thereof to his wife during her life and immediately after the death of his wife, as to as well the capital as the income, upon trust for his three sons, naming them, in equal shares as tenants in common. Then follows a proviso which must be set out in terms: "Provided however and I hereby declare that the devise and bequest to each of my said sons shall be upon the condition that he and his wife shall at the date of death of my said wife or at my death should my said wife predecease me profess the Protestant faith and accordingly I declare that if at the date aforesaid my trustees shall not be satisfied that any son of mine and his wife profess the Protestant faith then and in every such case such son shall absolutely forfeit and lose all share and participation in the principal and income of my estate to which otherwise such son would become and be entitled". The testator proceeds at this point to declare that every interest so forfeited shall go and devolve equally between four charitable objects. That is followed by a clause in these terms: "I declare that the question whether any son of mine and his wife profess the Protestant faith shall be decided by my trustees and their decision shall be final".

[7]

It might not have been difficult for the sons to show that the uncertainty about the operation of the proviso caused them present difficulties which made it right in point of justice to set the question at rest; but it is not their summons. It may be that the plaintiff in her capacity as trustee instituted the suit at their request and in their interest, but the affidavits do not say so; no reason appears from the evidence why the plaintiff raised at this time the questions for determination. A consideration of the claim that the condition is void for uncertainty leads at once to the question whether the distinction between conditions subsequent and conditions precedent is material to the present limitation and if so upon which side of the distinction the condition falls. In its turn that brings into consideration the nature of the limitation to each of the three sons. Is it contingent upon the son surviving his mother or if he predecease her do his executors or administrators take? Obviously the proviso cannot apply to a dead man and, even if his widow does not profess the Protestant faith, she is not his wife. Thus the question if considered as one depending upon certainty or uncertainty may involve more than the validity of the condition and extend to the possibility of a son's share being held undisposed of in case of his predeceasing his mother. Those taking as upon an intestacy were not made parties as such, but as it happens that there are no others but the plaintiff and the three sons who were all joined as defendants, that fortunately is not material. The proceedings were open however to the objection that they raised questions which could not affect the plaintiff whether as trustee or otherwise concerning the future interests of beneficiaries and the effect upon them of events that had not yet occurred and could only occur in the future. But the objection was not raised by or before the primary judge and if it had been raised it would seem likely that one or more of the sons would have assumed a different role in the suit and would have attempted to show why their interests justified an immediate application for the determination of the validity of the proviso. There is no doubt that the parties are sui juris and represent all possible interests. Although the problem is not certain to arise in the future it is very likely to do so. In all the circumstances it seems proper that upon this appeal, where the parties did not raise the objection we should pass it over.

[12]

In the condition contained in the proviso to the gifts in remainder made by the will now before us general terms are used, but the purpose or at all events the effect is specific. It is specific because it applies to a precise situation in which each of two sons already stood and upon which the third was about to enter. It meant that to avoid the forfeiture of the gift the son must, whether by chance or design, obtain a change of the situation so that either his wife changed her religion or ceased to be his wife; and that must be before his mother died. For present purposes the condition that at his mother's death he himself should not be of the Roman Catholic faith may be left out of consideration and so may the fact that the gift in an alternative form takes effect subject to the same proviso in the event which did not happen of the testator's wife predeceasing the testator. It is true that, had that event occurred, assuming the proviso to be valid and not inoperative, it would have been determined at the death of the testator whether the condition was in each case fulfilled; there would have been no interval for recantation of faith or dissolution of marriage. But we are concerned with the form of the proviso which applies to the events that did happen. In a marriage between a Protestant husband and a Roman Catholic wife it makes the continued adherence by the wife to her faith the cause of his forfeiting his very substantial share in his father's estate with the alternative of his disencumbering himself of his wife before his mother dies. Whether designedly or not such a disposition creates an opposition between the wife's religious beliefs and a serious temporal interest of her husband, and doubtless by consequence of her own. If she cannot or will not desert her faith it provides an inducement to him of a pecuniary or proprietary nature the operation of which cannot but be in opposition to the policy of the law, its policy to preserve and maintain marriage.

[15]

It remains to state briefly why I am not prepared to adopt the view that the condition is void as a condition subsequent. I am not inclined to dispute the characterization of the proviso as a condition subsequent, but I do not regard that as very important in considering the validity of the proviso expressed as it is and operating as it would if valid. If the matter arose for decision I would say, I believe, that the gift in remainder to the sons is better construed as a gift to each of them of the interest vested in him (that is, of course, subject to the operation of the proviso were it valid) and passing to his executors and administrators even if he die before his mother. I think the reference to his professing the Protestant faith should not be read as implying that he must be alive at his mother's death but rather as applying if he is alive at that event. On that view there is no difficulty in treating the proviso as intended to defeat a vested interest, which if not defeated, would devolve upon the executors or administrators. It is upon this interpretation of the provision that I am prepared to treat the condition as creating a condition subsequent rather than a condition precedent. The form and language of the proviso is of course that of a condition subsequent defeating an otherwise continuing interest, but if the true interpretation of the limitation had resulted in its being necessary that the son should survive his mother and profess the Protestant faith, it would have been more in accordance with that interpretation to treat it as a contingent gift dependent on both contingencies. But treating the proviso as expressing a condition subsequent in that way, I fail to see that the meaning is affected or the propriety of holding the condition uncertain is increased. It is none the less a condition operating only at a defined point, namely the termination of the life estate, and once for all, a condition that must be complied with before an estate or interest vested already in interest vests in possession or enjoyment. There is no room in such a limitation for the application of the usual reasons given for requiring certainty in the definition of conduct or occurrences which will work a forfeiture of an otherwise continuing estate or interest although a similar lack of definition of a like condition precedent would not prevent the acquisition, attachment, commencement or "vesting" of the estate or interest.

[25]

What general tendency inimical to the public good is there in the condition we have to consider, as applied to the case of a son of the testator married to a woman who does not profess the Protestant faith? Surely not a tendency to induce murder; that would be a fantastic suggestion: Fender v. St. John-Mildmay [1] . A tendency, then, to bring about a dissolution of marriage, by inducing the husband either to take advantage of a cause of divorce given by his wife of which otherwise he would not have availed himself, or to commit or pretend to commit a matrimonial offence and then persuade his wife to divorce him? Of course it is conceivable that one of the sons mentioned in the will might be so swayed by cupidity as to adopt some such course, with the object of ridding himself of a non-Protestant wife whom he found so steadfast in her faith, or in her rejection of faith, as to stand an unyielding obstacle to his avarice. But a possibility that some individuals might be found who would respond so disgracefully to the existence of the condition is not enough. Alderson B. may have been guilty of a slight overstatement when he said in Egerton v. Brownlow [2] : "The truth is, that an active imagination may find a bad tendency arising out of every transaction between imperfect mortals; and to use this as a criterion for determination, would make every case depend on the arbitrary caprice of an acute Judge" [3] . But he was on good ground when he asked himself, in reference to a suggested illegal tendency, "Is, then, this in the ordinary course of the business of human life?" [3] . The test is to be found, differently expressed but in effect the same, in a passage in the speech of Lord Atkin in Fender v. St. John-Mildmay [4] , which Latham C.J. quoted and Starke J. relied upon in Ramsay v. Trustees Executors and Agency Co. Ltd. [5] . Adapting his Lordship's words, it may be said that a condition of a gift has no such tendency to public mischief as will make it void, unless the donee will generally, in a majority of cases, or at any rate in a considerable number of cases, be exposed to a real temptation, by reason of the condition, to take a course harmful to the public good, and will be likely to yield to the temptation, Applying that test, I am of opinion that none of the possibilities I have mentioned justifies the conclusion that the condition in question has such a general tendency to the public ill that it should be held to conflict with the policy of the law.

[27]

It is suggested that the desire of a Protestant husband to take a testamentary benefit and the loyalty of his non-Protestant wife to her principles on matters of religion may so directly conflict that matrimonial harmony will be endangered and perhaps destroyed. It must of course be recognized, for it is notorious, that differences in religious faith are apt to produce unhappy friction between married people, not seldom weakening, and sometimes even breaking the bonds of home and mutual devotion. It is not difficult to believe that in some cases the offer of a legacy to one spouse on condition that the other will renounce an existing religious adherence may lead to discord between them. But whether it will, and to what extent it will, must depend in every case on the strength of their mutual affection, on their personalities, on the degree of intensity which already characterizes their feelings towards one another in relation to religious things, and on other circumstances such as the financial position in which they will find themselves if the legacy be lost. What generalization would it be right to make on such a matter? In my opinion, none. In particular, I am not prepared to affirm that in the generality of cases, in "the ordinary course of the business of human life", the condition would be likely to produce such a degree of ill-feeling between husband and wife that one or both would probably so act as to break up their marriage or break up their home. In my opinion no less affirmation would suffice to justify a decision that the condition offends against the policy of the law. The first question, as Lord Macmillan would say, must always be - what is the principle of public policy which would be infringed by the upholding of the condition? (cf. Beresford v. Royal Insurance Co. [1] ). The general principle that the institution of marriage is sacrosanct, and in particular that neither husband nor wife should be given an inducement to divorce or separation, no court, I imagine, would hesitate to maintain. But there is not, I think, any principle of law which is offended by the creation of a potential cause of dissension between spouses, unless the dissension would be likely to result in divorce or separation. Once go beyond that, and it becomes difficult to see where or on what principle a line is to be drawn. Is it to be held obnoxious to the law that a gift to a wife should be conditional upon her husband taking her to live in a new place for which he may have no liking, or upon his giving up participation in his favourite sport, or upon his ceasing to smoke cigars? If the answer be offered that it is all a question of degree and that the law frowns only when the condition relates to something about which people's feelings are apt to be strong, so that the dissension it may cause will be likely to jeopardize the peace of the home, I feel obliged to seek firm ground by going back to basic principle. Granted that some conditions may have in them the seeds of domestic discord - so, for the matter of that, may testamentary benefactions themselves - the question must always be, as I understand the authorities, whether there is, generally speaking, a likelihood that the discord not only will arise but will lead one of the spouses to seek an end to their marriage or to their living together.

[34]

As I understood the argument that the condition was uncertain it was that the word "Protestant" has no precise and determinate meaning; and that "the Protestant faith" is not a definite body of doctrine; so that it is impossible to say whether a person does or does not profess the Protestant faith. Many cases were referred to in which, in the last twenty years especially, uncertainty has been found lurking in phrases like this. But all those cases, certainly all that are binding upon us, are on examination distinguishable. We would, I think, be shutting our eyes to the world around us and ignoring the ordinary use of words in Australia if we were to hold that, because of what was said in some of those cases, the words of this will do not clearly express a definite requirement that the testator had in mind. He wanted his property to go to his sons after their mother's death if they and their wives were then Protestants. He cast upon his trustees the duty of determining whether they then professed the Protestant faith. No lawyer can say that the word "Protestant" cannot have a meaning for legal purposes. It is used in many statutes, including the Act of Settlement. It is used too in the Bill of Rights, with its meaning there expanded by the requirement of the declaration contained in the Test Act. Of the corresponding provision that the Sovereign must not be married to a Papist, which Burnet claimed was his work, Lord Macauley wrote: "He had little reason to boast; for a more wretched specimen of legislative workmanship will not easily be found. In the first place no test is prescribed. Whether the consort of a Sovereign has taken the oath of supremacy, has signed the declaration against transubstantiation, has communicated according to the ritual of the Church of England, are very simple issues of fact. But whether the consort of a sovereign is or not a Papist is a question about which people may argue forever. What is a Papist? The word is not a word of definite signification either in law or in theology". Argument addressed to us on the meaning of the word "Protestant" followed a somewhat similar line. But in my view an expression that since 1701 has been certain enough for limiting the succession to the throne of England is certain enough for disposing of the estate of a resident of East Maitland in New South Wales to-day. If it be necessary to elaborate the word "Protestant" as used in Australia to describe certain religions, I take it to mean primarily those churches of Western Christendom that severed connexion with Rome at the time of the Reformation - principally those of the Lutheran, Reformed (that is Calvinistic) and Anglican communions and disciplines - and their various offshoots. Far-fetched questions arising out of schisms later in time than the Reformation do not make the meaning uncertain. If it should become necessary, which is most unlikely, to know what would be the effect of a son of the testator being married to an Old Catholic or Jansenist, for example, the question could, I think, be determined. Still less, I think, can anything turn upon esoteric doctrine, or upon mere nomenclature, as for example, that some members of the Church of England prefer not to be called Protestants or that Irvingite congregations adopt the name Catholic and Apostolic Church. Dialectical considerations of that kind do not unsettle the meaning of the will. Nor is it to the point that outside the Western Churches there are great bodies of Christians who are neither Roman Catholics nor Protestants, not only in the Orthodox Church, but among some of the lesser churches in Syria and the Levant, including those that maintain monophysite doctrine. Some of them might still, in Gibbon's phrase, "equally disappoint the prejudices of a Papist or a Protestant". It is, I imagine, in the last degree unlikely that one of the testator's sons will at his mother's death be married to an adherent of the Orthodox Church or of one of the Uniate Eastern Churches. But if so, the trustee of the will would have to determine, and could determine, whether or not, in the particular case, his wife professed the Protestant faith within the meaning of that expression as used by the testator. If a description is not itself inherently uncertain and has an objective meaning, but its application to cases upon the periphery of its denotation could give rise to difficulty or debate, then committing the decision to some specified person may make its validity the more sure. The Court then has only to ascertain what decision the nominated person has in good faith come to on a question of fact of which he was made the judge.

[35]

But, it was said, the testator did not require his sons and their wives to be Protestants but to "profess the Protestant faith". This seems to me too refined a distinction on which to find the condition uncertain. So far as a profession of faith is required, it is for the trustee to determine whether it has been made. To profess the Protestant faith here means, I think, to declare unequivocally allegiance or adherence to a particular Protestant church. Alternatively, a general statement of acceptance of Protestant Christianity, coupled with a specific repudiation of Roman Catholicism would, I think, suffice. Neither the Court nor anyone else can for the purpose of deciding a right to testamentary benefits test the inner convictions of a beneficiary nor seek to ascertain the depth of his or her belief. That would be an impossible task. Moreover, persons who count themselves and are counted as members of a religious denomination are seldom skilled in theology or deeply versed in doctrinal distinctions. Their "beliefs" are the tenets of their Church, simply because they are its tenets. Its forms of worship and its rites may mean much for them and evoke their loyalty without the details of its doctrine commanding their intellectual assent, or even their close attention. It may be that for many people, again to quote Gibbon: "the volumes of controversy are overspread with cobwebs; the doctrine of a Protestant church is far removed from the knowledge or belief of its private members". But that is true of many faiths. And, in my view, still less is it to the point to argue that, in a theological sense, there is not one specific body of doctrine or dogma that can be called the Protestant faith. These considerations are really remote from the construction of this will: and all the more so because, as has been said, "the simple word Faith conveys quite different meanings to the Catholic and the Protestant and evokes dissimilar associations" (The Christian Dilemma by Dr. Van De Pol translated 1952, p. 32). What the testator wanted was that his sons and their wives should be Protestants. I think that this condition he imposed upon his beneficiaries was not uncertain. But is a condition demanding that a beneficiary and his or her spouse be adherent to a particular religion a condition that the law allows? That is the next question.

[36]

Speaking generally, a man may leave his property by will as he wishes and to whom he wishes. He may, if he wishes, provide that his property shall go only to persons of a particular religion. He may stipulate that a prospective beneficiary will be disqualified unless he renounce a particular faith (In re Cuming; Nicholls v. Public Trustee (S.A.) [1] ). There is, as far as I am aware, no more objection in law to giving a man a legacy or making a payment to him on condition that he leave one religious congregation and join another than there is to buying the allegiance of a football player for a particular club if no breach of contract be involved. Furthermore, a testator may disqualify from participation as a beneficiary anyone who should marry a spouse of a particular religion, or not marry a spouse of a particular religion. Such stipulations are common enough; and, until the modern tendency of courts to examine them critically to see whether they contain any imprecision or uncertainty, they have been commonly upheld. But this case goes further. It is one thing to say that a man can benefit only if he be himself of a particular faith or marries someone of that faith. It is a different thing to say that a man, being married, can only inherit if his wife change her faith: and that is what this testator has tried to secure. In form the condition is one imposed upon the husband; he must at the date his mother dies be either an unmarried Protestant or a Protestant having a Protestant wife. But how is he to perform the condition? To use the words of Stuart V.C. in Wilkinson v. Wilkinson [2] , "Upon the construction of the language it is extremely difficult to say how the condition is to be performed. The testatrix knew that the plaintiff was married and that her ceasing to reside at Skipton could not depend upon herself, but upon her husband. That being so, what is the value of such a condition? It is a condition imposed upon a person who is not the person that must really perform it" [3] . The circumstances of that case differed from this; but the Vice-Chancellor's words are significant and they lead to the query: is this condition against public policy, that is to say against the policy of the law?

[38]

I am not unmindful of warnings that have been given, warnings that are more remarkable for variety of metaphor than serviceable as guides. Public policy we know is "a very unruly horse" [1] ; it is also "a treacherous ground for legal decision" [2] ; "a very unstable and dangerous foundation on which to build until made safe by decision" [3] ; "slippery ground" [4] ; "a vague and unsatisfactory term and calculated to lead to uncertainty and error when applied to the decision of legal rights" [5] ; and much else. And I am aware too that those who base their decisions upon consideration of public policy are likely to be reproached with "arbitrary caprice" or reminded that "the doctrine should only be invoked in clear cases in which the harm to the public is substantially incontestable and does not depend upon the idiosyncratic inferences of a few judicial minds", as Lord Aitkin expressed it in Fender v. St. John-Mildmay [4] . But I hope it is not a mere idiosyncracy of mine to think that planting seeds of discontent and discord between spouses is contrary to the policy of the law. The law provides, it is true, for the dissolution of marriage as a remedy for proved breaches of the obligations of marriage. But provisions enabling divorce merely emphasize that stability of marriage is the general policy of the law. And that stability must depend upon marriages being in general supported by harmony and sustained by happiness. In my view the policy of the law is not merely that marriages should not break up by divorce or separation. It is rather that the consortium of matrimony and all that that means, should not be interfered with, hampered or embarrassed - the expressions are Lord Aitkin's in Fender v. St. John-Mildmay [6] . I adopt too his suggestion that "the moral ideal and the legal obligation are expressed in the promise to love and to cherish" - an expression of matrimonial duty not the worse in law because it is derived from the Book of Common Prayer. Has the condition that the testator here has sought to impose upon his gift to his sons a real and significant tendency to hamper and embarrass spouses in the performance of this duty? We are not concerned with the character of the particular individuals concerned in this case. We are concerned only with what is the likely influence and practical result, speaking generally, of such a disposition. We are not concerned that, as Lord Lyndhurst recognized in Egerton v. Brownlow [1] , "there may be exceptions, honourable exceptions, to such an influence". Many noteworthy expressions of the general principle to be applied can be culled from what was said by the judges in that case. But it is to be remembered that in applying those principles their Lordships did not accept the advice of the majority of the judges and reversed the decree of Lord Cottenham, the Lord Chancellor. I shall quote one passage from Lord Brougham's speech: "The tendency is alone to be considered, and unless the possibility is so remote as to justify us in affirming that there is no tendency at all, the point is conceded. Gifts, bequests, conditions, contracts are illegal from their tendency to promote unlawful acts, without regard to the amount of the inducement held out, or interest created, the position of the parties, or any other circumstances which go to affect the probability of the unlawful act being done". [2] . This utterance, made in the course of a speech characteristically powerful and rhetorical, may be over emphatic. But it does not, I think, depart from the principles that run through the speeches of the other members of the House. How in the light of these principles does the condition we have to consider stand? The phrase "unlawful acts" is not restricted in this context to acts that the law condemns and the doing of which entails direct legal consequences. Its meaning can comprehend, it seems to me, things that are directly subversive of the integrity of a relationship that it is the policy of the law to maintain. Is that the position here? I accept, of course, and without hesitation, the decision of the majority of this Court in Ramsay v. Trustees Executors and Agency Co. Ltd. [3] in relation to the facts of that case. But it was a very different case from this.