F. C.

should therefore be answered that the bequest is, in the events Re MITCHNER, which have happened, a good and valid bequest of £200 to Ferdinand Tautz, and £200 to his son William, but that there is a lapse as to £200, the share of the wife of Ferdinand Tautz, who predeceased the testator, and that the £600 is not equally divisible

DECEASED.

UNION TRUSTEE
COMPANY OF
AUSTRALIA AND
ANOTHER V.

THE ATTORNEY- between Ferdinand Tautz and his son William.

GENERAL

FOR THE

AND OTHERS

(No. 2.)

2. In my opinion the bequest of the income of the sum of £1,000 COMMONWEALTH Out of the residuary estate to Elizabeth Conrad for life is a good OF AUSTRALIA and valid bequest, and question (g) should therefore be answered in the affirmative. And in my opinion the power of appointment over the sum of £500, part of the said sum of £1,000, conferred upon the said Elizabeth Conrad, as in the said will mentioned, is a valid power and exercisable by appointment to herself or anybody else. Irwin v. Farrer (1). I think, therefore, that question (h) should be answered in the affirmative.

Shand J.

3. The bequest of £500, the balance of the said sum of £1,000, being a gift to take effect upon the determination of the life interest therein bequeathed to Elizabeth Conrad, and to be then applied once for all for the erection therecut of a steeple and bell at the Capelle at Lewin, and the purchase and erection of a bust of the testator and the said Elizabeth Conrad in the said Capelle, and for the purpose and erection of a brass plate to be inscribed as in the will directed, is in my opinion wholly good and valid according to the law of Queensland, and question (i) should, I think, be so answered.

4. By his will the testator directs that £7,000, part of his residuary estate, shall be expended within four or five years of the date of his death in the erection to his memory of such educational institution at Lewin as the mayor and town councillors for the time being of the municipal district of Lewin shall decide, and the will continues in these words: "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 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 sum 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

(1) 1812, 19 Ves. 86.

1922.

F.C.

Re MITCHNER,
DECEASED.

UNION TRUSTEE
COMPANY OF
AUSTRALIA AND
ANOTHER 2.

THE ATTORNEY-
GENERAL

FOR THE

OF AUSTRALIA AND OTHERS. (No. 2.)

Shand J.

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." Now this bequest of COMMONWEALTH
£7,000, except as to £500, is an immediate gift of money to be
expended within four or five years of the testator's death, and as
to this £500 is, I think, clearly a charitable bequest. I think,
therefore, that even if the educational institution were required
to be erected in Queensland, the whole of the bequest of £7,000
would be good and valid according to the law of Queensland, and
that the first part of the question () should be so answered.
It follows that in my opinion the sum of £1,500, and the four
several sums of £500, including the last-mentioned sum of £500
may, according to the law of Queensland, be expended or invested
in the manner in the said will directed. And that in my opinion
the second part of question (7) should be so answered. And it
will be apparent that in my opinion the last part of question (j)
should be answered as follows: The respective sums of
£500 form part of the sum of £7,000, and are not any of them
by the will given in addition to the said sum of £7,000. It
appears to me, however, that the trusts declared with reference
to this sum of £7,000 might very possibly prove incapable of
being carried out by reason of the impracticability of giving
effect to them in Germany, and perhaps also by reason of their
illegality according to German law. And until all doubt with
reference to those matters has been cleared up by an inquiry
instituted for that purpose, I think it is impossible to pronounce
any final opinion as to the validity of this bequest, because if
it would be impracticable to give effect in Germany to the
trusts declared with reference to this sum of £7,000, or if the law
of Germany would not allow effect to be given to them, the bequest
in my opinion would fail, and even if regarded as made for general
charitable purposes-as to which see, however, In Re Wilson (1)
and In Re Packe (2)--could not, I think, be administered cy-pres
by this Court. See New v. Bonaker (3).

5. I have felt some doubt as to whether the bequest of the
(1) (1913] 1 Ch. 314.
(3) 1867, L.R. 4 Eq. 655.
(2) [1918] 1 Ch. 437.

F.C.

Re MITCHNER,
DECEASED.

UNION TRUSTEE

COMPANY OF AUSTRALIA AND ANOTHER V.

income of the sum of £2,500 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 as he shall in his discretion approve, can be regarded as a charitable gift. But having regard to the words "during the winter months," I think THE ATTORNEY- the testator has sufficiently indicated an intention to benefit only those children, who by reason of their poverty, would be likely to COMMONWEALTH suffer from cold. See In Re Lucas (1). I think therefore that even if the trusts declared with reference to this bequest were required to be administered in Queensland, it would be a good and valid bequest according to the law of Queensland, and that question (k) should be so answered.

GENERAL

FOR THE

OF AUSTRALIA
AND OTHERS.
(No. 2.)

Shand J.

6. For similar reasons, in answer to question (7), I am of opinion. that the bequest of the income of the sum of £2,000 to the priest of the Catholic church for the time being at Lewin, for providing comforts and clothing for the 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, is a wholly good and valid bequest according to the law of Queensland.

7. In answer to question (m), I am of opinion that the bequest of the income of the sum of £1,000 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, is clearly a good and valid bequest according to our law.

8. The bequest of the income of the sum of £300 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, and 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, being in my opinion both of them clearly gifts for charitable purposes, are I think good and valid according to our law, so that in my opinion both parts of question (n) should be answered in the affirmative, with the addition of the words "according to our law."

9. For similar reasons I think that both parts of questions (0) and (p) respectively should be similarly answered.

10. In answer to question (q), I am of opinion that as to the £50 (1) [1922] 2 Ch. 52.

to be expended in the erection of a new tombstone over the grave of Theresia Maichsner at Lewin, the bequest of this sum of £50 is a good and valid bequest according to our law.

11. Amongst the many singular dispositions made by the testator, those which give rise to questions (r), (s), (t), (u), and (v), are perhaps the most singular of all.

With reference to further portions of the residuary trust fund (by the will directed to be remitted to Ferdinand Tautz his executors or administrators, the parish priest for the time being of the Roman Catholic church at Lewin and the Police Magistrate for the time being at Lewin), the testator gives the following directions:

"(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 (sic), 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 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.

66

(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

F.C.

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

THE ATTORNEY-
GENERAL

FOR THE

COMMONWEALTH
OF AUSTRALIA
AND OTHERS.
(No 2.)

Shand J.

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 upkeep 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 institution 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."

Most of the arguments addressed to us with reference to these bequests of £1,450 (made up of £400, £600, £300 and £150); £6,850 (made up of £50, £4,000, £2,000, £500 and £300); and £3,250 (made up of £50, £2,500, £200 and £500)-i.e., sums amounting in the aggregate to £11,550-had reference to difficult questions how far, if at all, the trusts declared with reference to these bequests transgressed the rules of law relating to perpetuities or remoteness. But whatever doubts might arise with reference to these questions if the trusts were to be administered in Queensland, I do not think these local rules of law affect the validity of these bequests. All the trusts other than those to take effect within seven years from the date of the testator's death are trusts declared with reference to real estate to be purchased in Germany.

Now, in Fordyce v. Bridges (1), it was decided that the rules relating to perpetuities did not invalidate the gift of funds directed to be invested in the purchase of estates in Scotland to be settled according to the limitations of a Scotch deed of strict entail, under which entail was not capable of being barred. And at (1) 1847, 2 Ph. 497.