F. C. BYRNE v. Dunne. 1. Is the bequest of the testator's furniture, library, horse, buggy, and harness to his successor in charge of the Roman Catholic Mission at Dalby, and on his death or removal to his successor, and so on, for their use, void as being contrary to the rule against perpetuities? 2. Is the bequest that the residue of the said testator's estate should be handed to the Roman Catholic Archbishop of Brisbane and his successors, to be used and expended wholly or in part as such Archbishop may judge most conducive to the good of religion in this diocese, void as not being a good charitable gift or for uncertainty or otherwise? In re The Woolcock and E. A. Douglas, for the plaintiff The bequest of furniture offends against the rule against perpetuities. Cadell v. Palmer (1), Carne v. Long (2); Tudor's Leading Cases on Real Property, 3rd Ed., pp. 424 and 465. The gift of the residue is also void. Apt words to vest an absolute interest in the Archbishop have not been used. He is a trustee. Davidson (3), In re Delany (4), Thornber v. Wilson (5). intention of the testator was to create a trust, but he failed to carry out that intention, and therefore there is an intestacy as to the residue. Morice v. Bishop of Durham (6). He failed in this for want of adequate expression in, at least, two respects-Firstly, assuming that a gift to the holder of a religious office is a gift to the charity, the subject matter is indefinite, for the fund to be applied is not definitely stated in this will, because it may be expended" wholly or in part." He may apply as much or as little as he chooses, and therefore the subject matter of the trust is indefinite and incapable of being ascertained, and so cannot be controlled by this Court. The gift therefore fails for uncertainty. Hunter v. Attorney-General (7), Morice v. Bishop of Durham (8), Cherry v. Mott (9), Chapman v. Brown (10), White and Tudor Leading Cases on Real Property, 3rd Ed., p. 581; Halsbury (1) 1832, 1 Cl. & F. 372. (2) 1860, 2 DeG. F. & J. 75. (4) [1902] 2 Ch. 642. (5) 1855, 3 Drew. 245. (6) 1805, 10 Ves. 521, at p. 535. (8) 1804, 9 Ves. 399. THE QUEENSLAND LAW REPORTER, AUGUST, 1910. Laws of England, Vol. IV., p. 147; In re Jarman's Estate (1), Knight v. Knight (2), Vezey v. Jamson (3), Nash v. Morley (4), Jarman on Wills, 5th Ed., Vol. I., p. 173; Kendall v. Granger (5), Attorney-General for New South Wales v. Adams (6), Dick v. Audsley (7). In considering the certainty of the gift, the position of the cestui que trust, and not that of the trustee, must be looked at. Here, some of the fund might be applied to purposes not charitable. A very small sum would satisfy the requirements of the will, and the trustee is the sole arbiter of the amount, and, to some extent, is therefore the testator. But gifts to a person holding a religious office do not necessarily indicate an intention to create a charitable trust in favour of the religious body. In re Freeman (8), In re Davidson (9), In re Hurley (10), Hunter v. Attorney-General (11), Halsbury Laws of England, Vol. IV., p. 145; Theobald on Wills, 7th Ed., p. 369. Secondly, the object of the trust is not definitely stated, for the Archbishop, in his discretion, can use and expend the fund “as he may judge most conducive to the good of religion." There is a great difference between a gift to such stated religious purposes as a certain person may select, and a power to arbitrarily decide what matters are religious or charitable. Cocks v. Manners (12), Re Ogden (13), Re Ralston's Will (14). Further, the gift is not a charitable gift; it is too vague, and the rule against perpetuities applies to make it void. In effect, this is a skeleton will, and the Archbishop is acting as the testator. In re Garrard (15), Smith v. Kearney (16), MacLaughin v. Campbell (17), In re Sydney (18), In re White (19), Grimond v. Grimond (20), Arnott v. Arnott (21), In re Allen (22). They also referred to Runchordas v. Parvatibhai (23), Corporation of Gloucester v. Osborn (24), Tyssen on Charitable Bequests, p. 133 (14) High Court of Australia, March (15) [1907] 1 Ch. 382. (16) 1881, 2 N.S.W.L.R. (E.) 49. (18) [1908] 1 Ch. 126. (19) [1893] 2 Ch. 41 (20) [1905] A.C. 124. (23) 1899, L.R. 26, Ind. Ap. 71. F. C. BYRNE v. DUNNE. F. C. Lewin on Trusts, 11th Ed., BYRNE V. DUNNE. Re Hurley (2), p.. 168; Fowler v. Garlike (1), Ommanney Weir v. Crum-Brown (10), Feez K.C., Stumm and Real: Both bequests are good as charitable gifts. In effect, the residue is given to the Roman Catholic Archbishop of Brisbane for the time being, and In re Delany's Estate (9) is in point. The Court always gives a benevolent construction to charitable gifts. Bruce v. Presbytery of Deer (11). testator was to benefit the church to the whole extent of the residue, although the particular class and the proportion and time of distribution are left to the discretion of the Archbishop. He could immediately distribute the fund, and must at some time apply it. Courts will always discover a way to enforce and administer a charitable trust. Dick's Trustees v. Dick (12). This is a gift to a religious institution for religious purposes, and is a good charitable gift. In re White (13), Townsend v. Carus (14), Brown v. Whitty (15), Powerscourt v.Powerscourt (16), In re Lea (17), Wilkinson v. Lindgren (18), In re Scowcroft (19), In re Darling (20), West v. Shuttleworth (21), Grimond Grimond (22) was decided under the Scotch law, and was not followed in Arnott v. Arnott (23). In re Pardoe (24), In re MacDuff (25), Commissioners of Income Tax v. Pemsel (26). Charitable bequests do not fail for uncertainty. Mills v. Farmer (27). The position of the donee as Archbishop is an important element. In re Garrard (28). The following cases show analogous gifts:-In re Slatter (29), (1) 1830, 1 Rus. & M. 232. (2) 1900, 17 T.L.R. 115. (3) 1828, T. & Rus. 260, at p. 270. (10) [1908] A.C. 162. (11) 1867, L.R. 1 H.L. Sc. & D. 96. (12) 1907, 9 Rettie 953. (13) 1893, 2 Ch. 41, at p. 50. (14) 1844, 3 Hare 257. (15) 1901, 11 Q.L.J. 133. V. (16) 1824, 1 Molloy 616. (19) [1898] 2 Ch. 638. (20) [1896] 1 Ch. 50. (21) 1835, 2 My. & K. 684. (22) [1905] A.C. 124. (23) [1906] 1 Ir. R. 127. (24) [1906] 2 Ch. 184. (25) [1896] 2 Ch. 451. (26) [1891] A.C. 531, at p. 583. (28) [1907] 1 Ch. 382. In re The Friends' Free School (1), In re Kenny (2), Re Hurley (3), Re Redish (4), Re Davidson (5). If difficulty exists in carrying out the testator's charitable intention, the proper mode is a scheme under the direction of the Court. In re Pyne (6), cf. also In re Lea (7), Moggridge v. Thackwell (8), Wallace v. Solicitor-General for New Zealand (9), Chamberlayne v. Brockett (10). As to applying the subject matter of the trust "wholly or in part," Dick v. Audsley (11), Attorney-General for New South Wales v. Adams (12). As to the gift of the furniture-this is a gift for the benefit of the church; it is an endowment. Thornber v. Wilson (13), In re Delany (14), Milbank v. Lambert (15), Gibson v. Representative Church Body (16), Robb & Reid v. Dorrian (17), In re Good (18), Fielding v. Houison (19), In re McDonald (20), In re Drummond's Trusts (21). The trusts do not contemplate that there should be a residue of a residue. In re Palmer (22). Woolcock, in reply, cited Attorney-General for New South Wales v. Metcalfe (23), Beale's Cardinal Rules of Interpretation, 2nd Ed., p. 523; and West v. Shuttleworth (24). C.A.V. COOPER C.J.: The judgment I am about to deliver is the judgment of the Court, and it was prepared by my brother Shand J. This case raises questions as to the validity of two bequests contained in the will, dated the 11th March, 1904, of the late Reverend Denis Joseph Byrne, who died on the 6th November, 1907. The material portions of the will are in the following terms:- "This is the last will and testament of me, Denis Joseph Byrne, of Dalby, in the State of Queensland, Roman Catholic clergyman. I will and bequeath, after payment of my lawful debts, funeral and testamentary expenses, my furniture, library, horse, buggy, and harness to my successor in charge of the Roman (1) [1909] 2 Ch. 675. (4) 1909, 26 T.L.R. 42. (10) 1872, L.R. 8 Ch. 206. (13) 1855, 3 Drew. 145. (14) 1902, 2 Ch. 642 at p. 646. (15) 1860, 28 Beav. 206. (16) 1881, 9 L.R. Ir. 1. (17) 1877, 11 Ir. R. (C.L.) 292. (18) [1905] 2 Ch. 60. (19) 1908, 7 C.L.R. 393, at p. 405. (22) [1893] 3 Ch. 369. F. C. BYRNE. DUNNE. Cooper C.J. F. C. BYRNE v. Dunne. Cooper C.J, Catholic Mission at Dalby, and on his death or removal, to his successor, and so on, for their use." Then passing over a number of pecuniary legacies as to which no question arises, we come to the concluding words of the will, which are these :-" And I will and bequeath all the aforesaid legacies free of probate duty and all other expenses, and that the residue of my estate should be handed to the Roman Catholic Archbishop of Brisbane and his successors, to be used and expended wholly or in part as such Archbishop may judge most conducive to the good of religion in this diocese. And I appoint the Archbishop of Brisbane aforesaid for the time being, and the Reverend Denis Fouhy, of Toowoomba, Roman Catholic clergyman, to be the executors of this my last will and testament." The Diocese of Brisbane referred to in the will includes the Parish of Dalby, of which the testator was, at the time of his death, the officiating priest. The first question requiring decision is as to the validity of the bequest of the testator's furniture, library, horse, buggy, and harness; a question of comparatively small importance, which seems to us to present little difficulty. It is not disputed that, under this bequest, the chattels enumerated are made inalienable for a period exceeding that permitted by the rules against perpetuities in cases to which those rules are applicable ; nor is it disputed that these rules have no application in the case of charitable bequests. But it was argued, on behalf of the plaintiff, who is one of the testator's next-of-kin, that the bequest of these chattels is not a gift to a charity, and being admittedly a gift in perpetuity, therefore fails for the benefit of the next-of-kin. For the defendants, who are trustees of the will, it was contended that the bequest is a good gift to charity, and therefore valid, in spite of the rule against perpetuities. So far, then, as the bequest of these chattels is concerned, the only question which appears to us to require a decision is whether the bequest is a gift to charity. It is not suggested that any doubt exists as to the meaning of the words used by the testator. It is, we think, quite clear that by this bequest the use of these chattels is conferred upon each of the persons who may successively occupy the position of Roman Catholic priest in the parish of Dalby, so long as he continues to occupy that position, and no longer; |