F.C. Re MITCHNER, UNION TRUSTEE AUSTRALIA AND FOR THE OF AUSTRALIA AND OTHERS. (No. 2.) reference to the remainder of the testator's residuary trust funds which were stated in the will as follows: And I hereby declare that my trustee shall stand possessed of the remainder of the said residuary trust funds in trust to pay the same from time to time as and when the same shall be THE ATTORNEY- available to the German Consul for the time being at Brisbane GENERAL aforesaid when such Consul shall have been duly appointed and COMMONWEALTH my trustee shall have been duly authorised in that behalf by the Attorney-Ceneral of the State of Queensland or the AttorneyGeneral of the Commonwealth of Australia with written instructions to the said German Consul to remit the said trust funds to my Ferdinand Tautz of Dresden Saxony in Germany his executors or administrators the parish. priest for the time being of the Roman Catholic Church at Lewin in Germany and the Police Magistrate for the time being at Lewin aforesaid to be expended by them the said Ferdinand Tautz his executors or administrators and the said parish priest and Police Magistrate in the manner following (that is to say) : (a) As to the sum of £600 to divide the same equally between the said Ferdinand Tautz and his wife and his son William Tautz respectively. (b) As to the sum of £1000 to invest the same and pay the income thereof to Elizabeth Conrad the married daughter of the said Ferdinand Tautz during her life and from and after her death as to the sum of £500 part thereof to pay the same to such person or persons for such estates and in such manner as the said Elizabeth Conrad shall by deed or will appoint. And as to the balance of the said sum of £1,000 to expend the same in the erection of a steeple and bell at the Capelle at Lewin aforesaid and in the purchase and erection of a bust of myself and the said Elizabeth Conrad in the said Capelle and in the purchase and erection of a brass plate to be inscribed as follows:"This steeple and bell are the gift to the public of Lewin of William Mitchner a native of Lewin. Born August 2nd, 1841." (c) As to the sum of £7,000 to expend the same within four or five years of the date of my death in the erection to my memory of such educational institution at Lewin aforesaid as the Mayor and Town Councillors for the time being of the Municipal district of Lewin aforesaid shall decide, such building to be at least two stories high, and of brick or stone. Of the said sum of £7,000 the sum of £1,500 to be expended in the purchase of a suitable F.C. Re MITCHNER, UNION TRUSTEE COMPANY OF AUSTRALIA AND ANOTHER. GENERAL FOR THE block of land of an area of fifteen acres, five acres of which said block of land shall be used for the erection thereon of the said institution and also the messuages appertaining thereto, and a further five acres for a recreation ground in connection with the said institution, and the residue of the said block for a fruit orchard and vegetable garden for the said institution And the THE ATTORNEYsum of £500 to be expended in the erection of a suitable steeple and bell for the said institution. And the sum of £500 to be expended in the purchase of a suitable clock for the said institution. And the sum of £500 in furnishing the said institution. And to invest the sum of £500 and expend the income thereof from time to time in the maintenance of the contents of the said institution or their replacements. And I hereby express the desire that there be added at the back of the said institution a small Roman Catholic chapel to accommodate about forty or fifty worshippers such chapel to contain a suitable organ. (d) As to the sum of £2,500 to invest the same and pay the income thereof to the Catholic Priest for the time being at Lewin for distribution during the winter months in each year amongst such of the children of Lewin aforesaid as he shall in his discretion approve the gift to be for the benefit of the children of Lewin aforesaid. (e) As to the sum of £2,000 to invest the same and pay the income thereof to the priest of the Catholic Church for the time being at Lewin aforesaid with which to provide comforts and clothing for the deserving children attending the school or schools of the said Catholic Church at Lewin aforesaid during the winter months in each year. And I declare that the distribution of such comforts and clothing shall be left in the absolute discretion of the said parish priest of Lewin aforesaid. (f) As to the sum of £1,000 to invest the same and to pay the income thereof to the Mayor and Councillors of the said Municipal district of Lewin aforesaid for the time being to provide and maintain a soup kitchen at Lewin aforesaid during the months of December, January and February in each year for the poor and needy in such manner as the scid Mayor and Councillors shall decide. (g) As to the sum of £300 to invest the same and to pay the income thereof to the parish priest for the time being of the Roman Catholic Church at Lewin aforesaid for the benefit of the said Church for the period of fifty years and thereafter to pay the COMMONWEALTH F.C. said sum of £300 to the said parish priest to be expended by him Re MITCHNER, in permanent improvements for the said Church. DECEASED. UNION TRUSTEE (h) As to the sum of £300 to invest the same and pay the income thereof to the parish priest for the time being of the Roman Catholic Church at Reinerz in Cermany for the benefit of the said THE ATTORNEY- Church for the period of fifty years and thereafter to pay the said GENERAL sum of £300 to the said parish priest to be expended by him in COMMONWEALTH permanent improvements for the said church. FOR THE OF AUSTRALIA AND OTHERS, (No. 2.) (i) As to the sum of £300 to invest the same and pay the income thereof to the parish priest of such one of the Romɛn Catholic churches in Dresden Saxony as the said Ferdinand Tautz the parish priest and Police Magistrate at Lewin shall elect for the benefit of the said church for the period of fifty years and thereafter to pay the said sum of £300 to the said parish priest of such church at Dresden to be expended by him in permanent improvements for the said church. (j) As to the sum of £50 to expend the same in the erection of a new tomb-stone over the grave of Theresia Maichsner.at Lewin aforesaid within five years from the date of my death. (k) (1.) As to the sum of £1,450 to purchase therewith for the sum of £400 a farm of fifty acres or thereabouts as near to the educational institution at Lewin aforesaid, and to erect thereon at a cost of £600 a brick or stone dwelling-house, and also to erect thereon at a cost of £300 the necessary stables and outbuildings, and to expend the sum of £150 in providing the necessary farming implements and machinery to work the said farm. (2). As to the sum of £50 to purchase five acres of land close to the railway and as near to the educational institution aforesaid as possible and to erect thereon at a cost of £4,000 a brick or stone flourmill, such mill to be at least two stories high, and to purchase for the said mill the necessary machinery of the latest pattern at a cost of £2,000, and to erect on the said five acres a manager's residence of brick or stone at a cost of £500, and also to erect thereon all necessary sheds and outbuildings at a cost of £300. (3.) As to the sum of £3,250 to purchase five acres in Lewin aforesaid at a cost of £50 and to erect thereon an hotel at a cost of £2,500 and also all necessary outbuildings at a cost of £200, and to furnish the said hotel at a cost of £500. (4). The purchase of the aforesaid lands for the said farm, flourmill and hotel, and the completion, equipment and furnishing thereof to be completed within seven years from the date of my death, and to be thereupon let during a period of fifty years either from year to year or for any term of years at such rents and subject to such covenants as the said Ferdinand Tautz his executors or administrators and the said parish priest and Police Magistrate at Lewin aforesaid shall think fit, with power to them to accept surrenders of leases and tenancies and the rents and profits to be derived from the said farm, flourmill and hotel to be expended in the up-keep and repair of all buildings in Germany directed to be built under this my will. And after the expiration of the aforesaid period of fifty years the said farm, flourmill and hotel and the lands upon which the same shall have been erected shall be offered for sale by public tender and if not thus sold to be offered for sale by public auction and the proceeds of sale shall be divided as follows:-One equal third part or share thereof to be expended for the benefit of the educational institute at Lewin aforesaid, One equal third part or share thereof to be divided equally between such of my relations as shall then be living at Lewin aforesaid, and the remaining equal third part or share thereof to be divided equally between all Christian lodges and societies in the town and district of Lewin aforesaid as shall then be sanctioned by the laws of Germany. (1) As to all moneys received by the said Ferdinand Tautz his executors or administrators, the said parish priest, and police magistrate at Lewin aforesaid, from the said German Consul over and above those hereinbefore mentioned shall forthwith be divided in the manner following (that is to say):—One equal third part or share thereof to be expended for the benefit of the said educational institute at Lewin aforesaid; one equal third part or share thereof to be divided equally between such of my relations as shall then be living at Lewin aforesaid, and the remaining equal third part or share thereof to be divided equally between all Christian lodges and societies in the town and district of Lewin aforesaid as shall then be sanctioned by the laws of Germany. (m) All relations of mine who seek admission as scholars to the educational institute at Lewin aforesaid from time to time if the said Ferdinand Tautz his executors or administrators and the said parish priest and police magistrate at Lewin aforesaid deem them. worthy shall be given priority of admission over all others seeking such admiss on. Ferdinand Tautz, his son William Tautz, and Elizabeth Conrad, P F. C. Re MITCHNER, UNION TRUSTEE THE ATTORNEY- COMMONWEALTH OF AUSTRALIA AND OTHERS. (No. 2.) F. C. Re MITCHNER, UNION TRUSTEE the parish priest of the Roman Catholic Church at Lewin, the police magistrate at Lewin aforesaid, and the parish priest at Reinerz, all in the said will mentioned, were, at the date of the death of the testator, and at the date of the issue of the writ herein and at the present time, German Nationals. The wife of Ferdinand Tautz, who was a German National, had died prior to the date of the death of the testator. There is both a town and a district COMMONWEALTH of Lewin. Such town and district are situate in Prussian Silesia. OF AUSTRALIA The town of Reinerz is also situate in Prussian Silesia aforesaid. COMPANY OF AUSTRALIA AND ANOTHER . THE ATTORNEYGENERAL FOR THE AND OTHERS (No. 2.) In addition to the questions set out in the earlier report, (1) the following questions were also submitted by the special case for the opinion of the Court: (f) Is the bequest out of the residuary trust funds of £600 to be divided equally between Ferdinand Tautz, his wife and his son William Tautz respectively a good and valid bequest wholly or in part? Is there an intestacy as to £200 the share of the deceased wife, or is the said sum of £600 to be divided equally between the said Ferdinand Tautz and his said son William Tautz? (g) Is the bequest of income on the sum of £1,000 out of the residuary trust funds to Elizabeth Conrad for life a good and valid bequest? (h) May the said Elizabeth Conrad validly exercise the power of appointment over the sum of £500 part of the said sum of £1,000 as in the said will mentioned? And, if so, may she appoint to herself? (i) Is the bequest of £500 being the balance of the said sum of £1,000 part of the said residuary trust funds for the erection of a steeple and bell at the Capelle at Lewin aforesaid, and the purchase and erection of a bust of the testator and the said Elizabeth Conrad in the said Capelle, and for the purchase and erection of a brass plate to be inscribed as in the said will mentioned, a good and valid bequest wholly or in part, and if in part, as to what part? (j) Is the bequest out of the residuary trust funds of £7,000 to be expended in the erection to the testator's memory of such educational institute at Lewin as the mayor and town councillors for the time being of the municipal district of Lewin shall decide, a good and valid bequest wholly or in part, and if in part, as to what part? And may the sum of £1,500 and the four several (1) 1922, St. R.Q1. 39 at pp. 47-48. |