Van Kerkvoorde v Moroney [1917] HCA 47

High Court of Australia|1917-07-01|Before: Rich JJ, Harvey J

H.C. or A. Will - Construction - Uncertainty - Gift to executive committee of wnincorpoi

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

association to be used in the interests of that association.

objects to objects substantially different. The Socialist Labour Party of Australia was an unincorporated association having upwards of one hundre members and a constitution setting forth the objects of the Party providing for a general secretary and an executive council which sho manage the affairs of the Party subject only to the control of an annual ¢ ference or a meeting of the financial members.

Held, that the gift of the corpus of the real estate after the death of the tor's widow and daughter was not uncertain, inasmuch as the Party was _ intended to be the real beneficiary, and, therefore, that the gift was valid.

Decision of the Supreme Court of New South Wales (Harvey J.): Van _ Kerkvoorde v. Hedley, 17 8.R. (N.S.W.), 265, affirmed. '

holas Van Kerkvoorde, deceased, left a will of which the follow- is the material portion : - " I appoint my said wife Amelia Van oorde sole executrix and trustee of this my will during her etime and I devise the whole of my real estate to her upon trust nit or empower her to receive the rents and profits of the whole my said real estate for her sole and separate use for her life charged rtheless with the payment each year to the Secretary for the being in Sydney of the Socialist Labour Party of Australia it of the said rents and profits of the said real estate of an amount to ten pounds per centum per annum of the said rents and its after payment of all rates taxes insurance premiums and out- in whatever for the time being on the said real estate and after ywance made by my said trustee for painting and repairing all jouse property every five years and also after allowance made tarring each year all the paths and passages at present tarred le the grounds of my different houses to be held by such Secre- in trust for the said Socialist Labour Party of Australia, and the death of my said wife or in case she predeceases me then I evise the whole of my real estate to my daughter Ethel Hedley e wife of Joseph Hedley of Edna Street Lilyfield near Sydney ter whom I appoint sole executrix and trustee of my will during 'ime upon trust to permit or empower her to receive the rents

y of Australia out of the said rents and profits of the said real e of an amount equal to twenty pounds per centum per annum id rents and profits after payment of all rates taxes insurance liums and outgoings whatever for the time being of The said real and after allowance made by my said trustee for painting all my house property every five years and also after

allowance made for tarring all the paths and passages at pres tarred inside the grounds of my different houses to be held by Secretary in trust for the said Socialist Labour Party of Austra And after the death of my said daughter Ethel Hedley or in case predeceases both myself and my said wife Amelia Van Kerkvoo I devise the whole of my real estate to the General Secretary for tl time being in Sydney of the said Socialist Labour Party of Austr upon trust to immediately sell the whole of my said real estate wy such terms and conditions as he may think fit and pay the m arising from the said sale to the Executive Committee for the time being in Sydney of the said Party for such purposes and object the said Executive may think fit in the interests of the said Part And in case the Party known at the date of this my will as Socialist Labour Party of Australia should amalgamate with a other party body or society having objects substantially di from the objects of the said Socialist Labour Party of Australia as formulated in the rules of the said Socialist Labour Party of Aus- tralia in existence at the time of making this my will or in case Party known as the Socialist Labour Party of Australia should its change the said objects to objects substantially different from

said present objects then I devise the whole of my said real estate after the death of my said wife and daughter respectively to Kuhn for many years one of the National Secretaries of the Socialist Labour Party of the United States of America and Morris Reins' i formerly of Buffalo and of the National Executive of the Soci Labour Party of America or the survivor of them in trust to sell whole of the real estate upon such terms and conditions as they or | survivor of them may think fit and to pay the moneys arising the said sale to the National Executive Committee of the So Labour Party of America to be used by them for the purpo: the said Socialist Labour Party of America and in case both thes Harry Kuhn and the said Morris Reinstein should predecease m there is a failure of the objects of the Socialist Labour Party of At

tralia as mentioned and provided for in the direction hereinbefor contained4f this my will then I devise the whole of my said estate to the General Secretary for the time being of the Socia Labour Party of the United States of America in trust to sell t

the said real estate upon such terms and conditions as he fit and to pay the moneys arising from the said sale to the nal Executive Committee of the Socialist Labour Party of the States of America for such purposes and objects as the said tional Executive may think fit in the interests of the said Party d I direct that after the death of my said wife the Secretary for e being of the Socialist Labour Party of Australia shall have it of inspecting at any time he shall see fit the whole of my te and if he shall at any time be of the opinion that any part y said real estate shall require to be repaired or renovated then have the right to serve a written notice of what he requires the said real estate upon the tenant for life of the said real in the way of repairing or renovating the said real estate and h repairs and renovations are not carried out within three months tenant for life after receipt of such written notice then the retary shall have the right to have such repairs and renova- carried out and shall have the right to charge same to the said originating summons was taken out by Mrs. Van Kerkvoorde determination of the following questions (inter alia) : - the gift in the said will of ten pounds per centum per annum

Amelia Van Kerkvoorde to the secretary for the time being ey of the Socialist Labour Party of Australia void for uncer- t or otherwise ?

the gift in the said will of twenty pounds per centum per

gift in the above-named will of the proceeds of sale of the l estate to the executive committee for the time being st Labour Party of Australia for such purposes and ts as the said executive may think fit in the interests of the said for uncertainty, perpetuity or otherwise ?

H.C. or A. Ethel Hedley, James O. Moroney, the general secretary of ee Socialist Labour Party of Australia, and Morris Reinstein and Han " Vay Kens- Kuhn, The Socialist" Labour Party of Australia was an unineo voor? porated association consisting of over a hundred members. It 'a constitution which set out that the object of the association "the establishment of a co-operative Commonwealth founded on collective ownership of the land and means of production, distril tion, and exchange," and that its methods were " the industrial

political organization of the workers, mental and manual, dis'

tion of socialist literature, lectures on socialism, also social, politic and industrial questions; and, to attain our object - a co-operat Commonwealth - the election of socialists to Parliament (F and State) and municipal councils." The constitution pro for a general executive committee which, subject to a reference of members, should exercise a supervising control over the work of the Party, should have a determining voice in the selection candidates, and should deal with local disputes between branche and their members, and, subject to the determination of an annual conference or a vote of financial members, should interpret constitution. \

The originating summons was heard by Harvey J., who answered each of the questions in the negative: Van Kerkvoorde v. Hedley (1). _

From that decision Amelia Van Kerkvoorde and Ethel Hedley now appealed to the High Court.

Each of the three gifts is void on the ground of uncertainty of trusts. As to the gift of the corpus it is a gift to the persons who the time the money is to be paid over happen to be the members the executive committee to be applied by them in any way they ms

of that body. The Court could not control the carrying out of trust. The gift therefore fails for uncertainty (In re Doug Obert v. Barrow (2); Byrne v. Dunne (3) ; In re Drummond ; Ashu v. Drummond (4) ). As to the gifts of income, if the direction ha

) 17 8.R. (N.S.W.), 265. (3) (1912) A.C., 407; 11 C.LR., 6: ) 35 Ch. D., 472, at p. 485. (4) (1914) 2 Ch., 90, at p. 97.

deal with it in a particular way. The members of the Socialist 0 Party are entitled to direct the executive committee what shall do with the money. That Party is entitled to have the ey handed to it by the executive committee and to deal the money according to the constitution (In re Drummond In re Clarke; Clarke v. Clarke (2) ). The members of the utive committee take by virtue of their office and those who be members cease to be trustees, the new members becoming ees in their place. If that is not so the Party can at least con- ol the executive committee and see that they exercise their tion honestly. ©

ron J. The appeal is from an order of Mr. Justice Harvey, ich he declared the validity of three gifts of the testator, Van voorde, in answer to three several questions in the originating

ms. As to the first two, which relate to a percentage of the and profits of the real estate during the lives of the testator's ww and daughter respectively, the appeal is not persisted in, t the passages making these two gifts must be considered in con- the third. The latter operates on the termination of the es to the widow and daughter. It is a devise of the real to the general secretary for the time being in Sydney of the st Labour Party on trust to convert it into money and to pay ys so arising " to the executive committee for the time being

(1914) 2 Ch., 90. (2) (1901) 2 Ch., 110.

y is to be "held" means that it is not to be parted with, the H- C. or A.

os J. referred to Halsbury's Laws of England, vol. XxvIl., Vax Kerx-

in Sydney of thesaid Party for such purposes and objects as the executive may think fit in the interests of the said Party."

As this gift of the corpus is not to a charity the questio whether it is valid, regard being had to the rules that the Co will not frame a scheme for the disposal of testamentary git purposes which are not charitable, and that funds not given 'to charity will devolve as undisposed of unless they are to be devot to some fairly defined object. The argument before us was to the question of uncertainty. If it stood alone, that is, u plained by the context or otherwise, one would be disposed to a; with the argument on that point. But in applying the gi its subject matter we must have regard not only to the cont but to the constitution of the Socialist Labour Party, which no d was properly before us. In that document the "object" of "organization" is described to be "the establishment of a co-operat Commonwealth founded on the collective ownership of the lan and means of production, distribution, and exchange," and th "methods" are the industrial and political organization of workers, mental and manual, the distribution of socialistic literature lectures on socia'ism, also political and industrial questions, and, attain our object - a co-operative Commonwealth - the election | socialists to Parliament (Federal and State) and municipal counci A person before becoming a member is to answer satisfactorily ce questions before being nominated. There is a monthly subseriy and the general executive can make levies when authorized by a' of the members of the Party. The general executive commit to be elected by " financial" members. It is, inter alia, to exe a supervising control over the work of the Party, to have po' suspend any of its officers for disloyalty to the movement, &c., may itself be removed by general vote. The Party may own papers to advocate its principles. ;

The above excerpts from the constitution are sufficient to show general nature of the body and its management. It is governt rules ; it consists of qualified subscribers, and its aims are defin

The two gifts of percentages upon income during the life e

e "in trust for the Socialist Labour Party of Australia," to say, the body described. Considered with the residuary

ns on a plan carefully thought out so as to provide for his

ed body year by year during the lives of those two relatives, ind to give the corpus in remainder to the organized body, but y, as will be seen, while it pursues in substance the objects ch have commended themselves to him in planning the future sestate. It is those objects to which the fund is to be applied r the life estates, objects which must be adhered to if a gift over o be avoided.

2 gift of the corpus is to be paid to the executive committee y as agents for the Party, and the " purposes and objects" ed by the constitution above quoted. The words "in ests of the said Party" have not the effect of allowing the y to be spent otherwise than in accordance with its purposes jects, but the manner in which it is to be applied to them is at the diseretion of the general as so long as it keeps

at the testator was applying the proceeds of his property ll-defined purposes has become, I think, fairly clear. But there e. The gift over to which I have referred is to take effect event of the Party as known at the date of the will amal- g with any other body " having objects substantially dif- from its objects "as formulated in the rules . . . in nee at the time" of the will; or in case the same Socialist Party should itself change its objects to objects substantially nt from those it then held. testator makes 'the rules, i.e., the "constitution," his , and thus puts beyond all doubt what is meant by " the and objects" in the gift itself. light of the rules and the context I think it is clear that the ses of the gift are quite adequately defined, and that the body to advantage have so complete a beneficial interest that would be in their power to exact the due performance of the trust. chat there is a definite subject matter, and that there are bene-

s who could legally demand enforcement. I am therefore _

make clear the fact that the testator has built up his dis- H. ©. or A.

and his daughter during their lives, to give assistance to the Vax Kerx-

of opinion that there is no uncertainty : see Grimond v. Grimo Lord Halsbury's judgment ; In re Clarke (2), and cases there ci and In re Conn; Conn v. Burns (3). Itis in no sense the purpor the gift to commit to others the task of making his will f testator.

Isaacs anp Ricu JJ. This appeal involves the validity of thr testamentary gifts - two of income and the third of corpus. are attacked for uncertainty. Harvey J. held them all good.

The objection as to the two gifts of income was not pressed, they are not open to any real doubt. The question as to corpu more difficult. The objection taken to it is that the discre given to the executive committee is so wide as to be beyon power of a Court to control and therefore you cannot class it trust. The willis so worded as to require careful consideration of all its parts, in order to see what the testator meant by the pro vision with which this case is immediately concerned. : :

The testator must be taken to have known the constitution an objects of the Socialist Labour Party of Australia. It has up of a hundred members, it has a secretary and an executive committee.

Reading the provision as to corpus in its setting - that is, reference to the gifts of income, and the substitutionary gifts, : the direction as to inspection during the lives of the life tenant it appears clearly that there is no uncertainty as to property, 01 to objects in the sense of the persons to be benefited. The obje are what the testator calls the Socialist Labour Party of Aust They are unincorporated, and the executive committee are off managers of the affairs of the Party, subject only to the control of the annual conference or a meeting of the financial members.

The only doubt that can arise is as to the " purposes and objec to which the property is to be applied, and in the result the det must turn on what the testator meant by the words " purposes objects."

(1) (1905) A.C., 124. (2) (1901) 2 Ch., 110. (3) (1898) 1 Ir. Rep., 337. mi

| Bathurst _v. Errington (1) Lord Cairns said: " In construing of the testator . . . itis necessary that we should put selves, as faras we can, in the position of the testator, and inter- is expressions as to persons and things with reference to that of knowledge of those persons and things which, so far as n discover, the testator possessed." »plying this rule, the intention of the testator is sufficiently plain. well acquainted with the Socialist Labour Party, he knew its jects," and therefore its constitution ; he refers to the rules, and so ew what are called in its constitution and rules its '' methods," 1, as set out, may not improperly be called its " purposes " so far ses are not included in " objects" ; he knew it had a secretary executive committee, and the functions of that committee. wiously intended to benefit that society, which is called a Party consists of recognized members but unincorporated, and fluctuat- personnel. will beyond question indicates that if the declared " objects " e Party as set out in its constitution were to be substantially ed at the time he died, his gift should go in another direction. juently, those were the '' objects " he meant to promote, and not intend to promote, and expressly refused to promote, any j 4tsubstantially differing. Therefore it cannot be supposed that he so inconsistent as to alter his gift if the society altered its objects, expressly permit the executive to apply the gift to altered for the same society. en, on the death of the life tenants, the real estate is devised general secretary for the time being, upon trust to sell and proceeds to "the executive committee for the time being ey of the said Party." That is, the trust (which is the only called by him a "trust" in relation to the corpus) was to e executive committee, not for their own benefit, but clearly

to receive the moneys as private individuals ; or that he 0 selected them; he deliberately allowed the society to

whom they pleased; the payment was to be to persons in not he, but the Party had confidence. They took as official

representatives rather than trustees, unless their powers will were wider than their duties to the Party. He did no to them as trustees. No doubt in a sense they take as truste that is because they are bound to account to the Party whose exe committee they are, for the moneys they receive.

Tt would have been practically impossible to hand the mone the Party, a fairly numerous body, not incorporated. We therefore well understand why the committee were selected testator as the manual recipients on behalf of the society. what are they to do with it? The.will says "for such purpos and objects as the said executive may think fit in the intere the said Party."

Remembering that the '' Party " is a definite society of which member is identifiable, that the testator insisted on the subs retention of its declared " objects," and that he knew the rela of the executive committee to the general body, we conclude that " objects and purposes " from which he permitted the commi select were the " objects and methods "' in the constitution. _

Thus the ambit of discretion is limited to the "' objects and put poses "' of the society itself. These are wide, but have some li At all events, the provision does not leave the executive comn for the time being to arbitrarily choose any " object or purpo it likes.

The test of uncertainty which will vitiate in such a case is I down in Grimond v. Grimond (1). There Lord Halsbury L.C. s the question was whether the testator had "left his directic so vague that it is in effect giving someone else power to make a w for him instead of making a will for himself." In saying that, | learned Lord was summarizing the effect of the previous authorit In Doe d. Winter v. Perrat (2), in the House of Lords, Lord Brough said : " The difficulty " (that is, the difficulty of construing the v so as to find sufficient certainty) "' must be so great that it am toan impossibility." And in In re Roberts; Reppington v. Rol Gawen (3) Jessel M.R. said: " The modern doctrine is not to hold:

will void for uncertainty unless it is utterly impossible to put

(1) (1905) A.C., 124, at p. 126. (2) 6 M. & G., 314, at p. 361. (3) 19 Ch, D., 520, at p. 529.

upon it. The duty of the Court is to put a fair meaning H. ©. or A. used, and not, as was said in one case, to repose on the Ra

v of saying that the whole is void for uncertainty." Van Kerx- whole, we do not think that can be said of the present will; eee 'come to the conclusion that, broadly phrased as this gift of Morovey. ;, the testator has sufficiently indicated that the Party is Tsaace J.

t of his bounty, first, as to part of the income and, next, as

and that the executive committee for the time being are to

y as the official representatives of the Party who are to be

| as the real beneficiaries and owners of the fund, and to

; Clarke v. Clarke (1) - as to which see particularly the

nts at p- 117 on the case of In re Clark's Trust (2) - and

ase (3) are greatly in favour of the respondent's contention.

ent of Harvey J. was therefore right, and this appeal

Appeal dismissed. Plaintiff to be at liberty to retain her costs out of the estate and to pay the costs of the other parties of this appeal out of the estate as between solicitor and client.

(1) (1901) 2 Ch., 110. (2) 1 Ch. D., 497. eS (8) (1898) 1 Ir. R., 337.

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

Cited By (1)