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sums of £500 be expended or invested in the manner in the said will directed? Do these said respective sums of £500 form part of the said sum of £7,000, or are they by this said will given in addition to the said sum of £7,000?

F.C.

Re MITCHNER, DECEASED. UNION TRUSTEE COMPANY OF AUSTRALIA AND ANOTHER V.

GENERAL

FOR THE

(k) Is the bequest of income from the sum of £2,500 part of the residuary trust funds to the Catholic priest for the time being THE ATTORNEYat Lewin, for distribution during the winter months in each year amongst such of the children of Lewin as he shall in his discretion approve, the gift to be for the benefit of the children of Lewin, a good and valid bequest?

(1) Is the bequest of income from the sum of £2,000 part of the residuary trust funds to the priest of the Catholic Church for the time being at Lewin, for providing comforts and clothing for deserving children attending the school or schools of the said Catholic Church at Lewin during the winter months in each year, such distribution of comforts and clothing being left in the absolute discretion of the said parish priest of Lewin, a good and valid bequest wholly or in part, and if in part, as to what part? (m) Is the bequest of income from the sum of £1,000 part of the residuary trust funds to the mayor and councillors of the municipal district of Lewin for the time being, to provide and maintain a soup kitchen at Lewin during the months of December, January and February in each year, for the poor and needy in such manner as the said mayor and councillors shall decide a good and valid bequest?

(n) Is the bequest of income from the sum of £300 part of the residuary trust funds to the parish priest for the time being of the Roman Catholic Church at Lewin, for the benefit of the said church for the period of fifty years, a good and valid bequest ?

And is the bequest of the said capital sum of £300 to the said parish priest, after the expiration of the said fifty years to be expended by him in permanent improvements for the said church, a good and valid bequest?

(0) Is the bequest of income from the sum of £300, part of the residuary trust funds to the parish priest for the time being of the Roman Catholic church at Reinerz in Germany, for the benefit of the said church for a period of fifty years, a good and valid bequest ?

And is the bequest of the said capital sum of £300 to the said parish priest after the expiration of the said fifty years to be expended by him in permanent improvements for the said church a good and valid bequest?

COMMONWEALTH
OF AUSTRALIA
AND OTHERS.
(No. 2.)

F. C.

Re MITCHNER, UNION TRUSTEE

DECEASED.

(p) Is the bequest of income from the sum of £300, part of the residuary trust funds to the parish priest of such one of the Roman 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, a THE ATTORNEY good and valid bequest?

COMPANY OF

AUSTRALIA AND
ANOTHER .

GENERAL

FOR THE

And is the bequest of the said capital sum of £300 to the said COMMONWEALTH parish priest of such church at Dresden, to be expended by him in permanent improvements for the said church, a good and valid bequest?

OF AUSTRALIA

AND OTHERS (No. 2.)

(q) Is the bequest of £50 part of the residuary trust funds to be expended in the erection of a new tomb-stone over the grave of Theresia Maichsner at Lewin within five years from the testator's death, a good and valid bequest ?

(r) Is the bequest of £1,450, part of the residuary trust funds, to be expended as to £400 in a farm of 50 acres or thereabouts as near to the educational institute at Lewin aforesaid, and as to £600 in the erection of a brick or stone dwelling house, and as to £300 in necessary stables and buildings, and as to £150 in providing necessary farming implements and machinery to work the said farm a good and valid bequest wholly or in part, and if in part only, as to what part or parts ?

(s) Are the bequests respectively of £50 to purchase five acres of land close to the railway and as near to the educational institute in the said will mentioned as possible, and of £4,000 for erecting thereon a brick or stone flourmill as in the said will described, and of £2,000 for the purpose of purchasing necessary machinery therefor, and of £500 for the purpose of erecting a manager's residence on the said farm, and of £300 for sheds and outbuildings, good and valid wholly or in part, and if in part only, as to what part or parts?

(1) Is the bequest of £3,250 to be expended in the purchase of five acres of land in Lewin and in the erection of an hotel and all necessary outbuildings and furniture a good and valid bequest wholly or in part, and if in part only, as to what part?

(u) Is the direction in the said will contained to let the said farm, flourmill and hotel for a period of fifty years as therein mentioned, and to expend and employ the rents and profits arising from the same in the upkeep and repair of all buildings in Germany directed to be built, a good and valid direction?

(v) Are the bequests respectively of one equal third part or

F.C.

Re MITCHNER,
DECEASED.

share of the proceeds arising from the sale of the said farm, flourmill and hotel for the benefit of the said educational institute at Lewin, and of one equal third part or share of such proceeds to UNION TRUSTEE be divided equally between such of the testator's relations as should then be living at Lewin, and of the remaining equal third part or share of such proceeds to be divided equally between all Christian lodges and societies in the town and district of Lewin as shall then be sanctioned by the laws of Germany, good and CoMMONWEALTH valid wholly or in part, and if in part only, as to what part?

(w) Are the bequests respectively of one equal third part or share of moneys received by the said Ferdinand Tautz his executors or administrators, the said parish priest and police magistrate at Lewin, from the said German Consul, over and above those in the said will mentioned for the benefit of the said educational institute at Lewin, of one equal third part or share thereof to be divided equally between such of the testator's relations as should then be living at Lewin aforesaid, and of the remaining equal third part or share thereof equally between all Christian lodges and societies in the town and district of Lowin aforesaid as shall then be sanctioned by the laws of Germany good and valid wholly or in part, and if in part only, as to what part or parts?

(x) Is the direction that all relations of the testator who seek admission as scholars to the educational institute at Lewin shall be given priority as in the said will mentioned, a good and valid direction, and if so, what person or persons, or classes of persons are included in the word relations":?

66

(y) Will any of the bequests lapse in the event of one or more or all of the aforesaid persons dying or refusing or being unable to accept or carry out the trusts, if any, declared by the said will?

(z) (1.) Do the words "the Catholic priest for the time being at Lewin" and "the priest of the Catholic church for the time being at Lewin" mean and refer to the parish priest at Lewin? (z) (2.) Is there an intestacy as to any, and if so, what part of the testator's estate?

(z) (3.) What is the duty of the plaintiffs in respect to the bequests under the said will to persons who are German nationals? (z) (3a) Are such bequests vested in the defendant the Public Trustee?

(z) (3b) Are such bequests charged with payment of the amounts referred to in Regulation 20 (1) of the Treaty of Peace Regulations?

COMPANY OF AUSTRALIA AND ANOTHER . THE ATTORNEYGENERAL

FOR THE

OF AUSTRALIA AND OTHERS. (No. 2.)

F.C.

Re MITCHNER, DECEASED. UNION TRSTEE

COMPANY OF AUSTRALIA AND

ANOTHER V. THE ATTORNEY

GENERAL

FOR THE COMMONWEALTH OF AUSTRALIA AND OTHERS.

(No. 2.)

(z) (3c) Should such Lequests be paid to or according to the directions of the defendant the Public Trustee, or how otherwise? (z) (4.) Does and what part of the testator's estate escheat any or become forfeited to the Crown as represented by the State of Queensland?

(z) (5.) By whom and out of what fund or funds should the cost of and incidental to this action and special case be paid?

On the further argument

Stumm K.C. and Hart for plaintiffs;

Webb S.-G. and H.D. Macrossan for the Attorney-General of Queensland;

Henchman for the Attorney-General for the Commonwealth of Australia and The Public Trustee (Commonwealth);

E. A. Douglas and Salkeld for the Public Curator (Queensland); Macgregor for R. M. Stodart (substituted on the death of James Stodart as representing the next-of-kin of the deceased).

The following authorities were referred to in argument: In re Geck (1); Thompson v. Thompson (2); Commissioner of Income Tax v. Pemsel (3); In re Macduff (4); Byrne v. Dunn (5); Re Jeffrey (6), Irwin v. Farrer (7), In re Wall (8), In re Garrard (9), Mayor of Canterbury v. Wyburn and Melbourne Hospital (10), In re Clarke (11), Waldo v. Caley (12), In re Rush (13), Emery v. Hill (14), New v. Bonaker (15), A.-G. v. Comber (16), Re Rendell (17), Re Swain (18), In re Gyde (19), Re Freeman (20), Brown v. Whitty (21), Queensland Trustees Ltd. v. Woodward (22), Doyley v. A.-G. (23), Crafton v. Frith (24), Hunter v. A.-G. (25), In re Willis (26), In re Rush (27), Powell v. A.-G. (28), Fordyce v. Bridges (29),

(1) 1893, 69 L.T. 819.
(2) 1844, 1 Coll. 381.
(3) [1891] A.C. 531.
(4) [1896] 2 Ch. 451.
(5) [1912] A.C. 407.
(6) [1914] 1 Ch. 375.
(7) 1812, 19 Ves. 86.
(8) 1889, 42 Ch.D. 510.
(9) [1907] 1 Ch. 382.
(10) [1895] A.C. 89.
(11) [1901] 2 Ch. 110.
(12) 1809, 16 Ves. 206.
(13) [1922] 1 Ch. 302.

(14) 1826, 1 Russ. 112.

(15) 1867, L.R. 4 Eq. 655.

(16) 1824, 2 2 Sim & Lt. 93.
(17) 1888, 36 Ch. D. 213.
(18) [1905] 1 Ch. 669.
(19) 1898, 79 L.T. 261.
(20) [1908] 1 Ch. 720.
(21) 1901, 11 Q.L.J. 138.
(22) 1912, St. R. Qd. 131.

(23) 1735, 4 Vin. Abr. 485 (C.) pl. 16.
(24) 1851, 4 DeG. & Sm. 237.

(25) [1899] A. C. 309.

(26) [1921] 1 Ch. 44.

(27) [1922] 1 Ch. 302.

(28) 1817, 3 Mer. 48.

(29) 1847, 2 Ph. 497.

F.C.

Re MITCHNER,
DECEASED.

Hoare v. Osborne (1), Salusbury v. Denton (2), In re Vagliano
(3), A.-G. v. Sturge (4), Re Davis's Trusts (5), Re Nash (6),
Hutchinson v. National Refuges for Children (7), In re Bowen (8), UNION TRUSTEE
In re Lavelle (9), In re Hoyles (10), In re Fraser (11); Jarman on
Wills, 6th Ed., Vol. I., pp. 245, 284, 364; Vol II., 1627, 1641 ;
Theobald on Wills, 7th Ed., pp. 2, 324, 352; Tyssen on Charitable THE ATTORNEY-
Bequests, 2nd Ed., chap, xvi., pp. 154, 155; Halsbury, Vol. IV.,
pars 237, 296; Gray on Perpetuities, par 266a.

The decision of Shand J. was read as the decision of the Court.

:

SHAND J. In view of the decision of the High Court, it now becomes necessary for this Court to deal with such of the questions contained in the special case, beginning with question (f), as were not dealt with in its previous decision.

1. At first sight the case of Re March (12) seems to suggest a doubt as to whether the bequest of £600 to be divided equally between "Ferdinand Tautz and his wife and his son William Tautz respectively" should not be construed as a bequest of £300 to Ferdinand Tautz and his wife, and £300 to William Tautz. The case of Re Jeffery (13) is distinguishable, because the gift in that case was to "W.S., his wife, and their daughter," and Warrington J. points out (at page 380) that, as in Re Dixon (14), of which the headnote is inaccurate, there is no conjunctive between the husband and wife, but only between the wife and the daughter. In the testator's will the gift is not to Ferdinand Tautz his wife and his son, but to Ferdinand Tautz and his wife and his son. However, the rule as quoted in Inre Dixon (15), from the judgment of the Privy Council in Dias v. De Livera (16), seems to be that although a gift to a man and his wife and a third person is to be construed as a gift of a moiety to the husband and wife, and a moiety to a third person, yet any indication however slight of an intention that each shall take separately, has been held to defeat the application of the doctrine." In the gift of this £600 I think the addition of the word "respectively " is a sufficient indication that these legatees are to take separately, and that question (ƒ)

(1) 1866, L.R. 1 Eq. 585.
(2) 1857, 3 K. & J. 529.
(3) 1906, 75 L.J. Ch. 119.
(4) 1854, 19 Beav. 597.
(5) 1889, 61 L.T.N.S. 430.
(6) 1894, 71 L.T.N.S. 5.
(7) [1920] A.C. 794.
(8) [1893] 2 Ch. 491.

(9) [1914] 1 Ir. R. 194.
(10) [1911] 1 Ch. 179.
(11) 1883, 22 Ch.D. 827.
(12) 1884, 27 Ch. D. 166.
(13) [1914] 1 Ch. 375.
(14) 1889, 42 Ch. D. 306.
(15) 1889, 42 Ch. D. at p. 308.
(16) 1879, 5 A.C. 123 at p. 135.

COMPANY OF AUSTRALIA AND ANOTHER V.

GENERAL

FOR THE

COMMONWEALTH

OF AUSTRALIA AND OTHERS. (No. 2.)

Shand J.

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