F.C. Germany and the Police Magistrate for the time being at Lewin Re MITCHNER, aforesaid to be expended by them the said Ferdinand Tautz his UNION TRUSTEE ANOTHER V. The will then made a great number of dispositions in favour THE ATTORNEY of individuals in Germany and scholastic and charitable institutions in that country; but in the view taken by the Court COMMONWEALTH it is not necessary to further refer thereto. GENERAL FOR THE OF AUSTRALIA Further, the testator declared that all legacies and bequests payable under his will, including the moneys to be paid to the German Consul at Brisbane aforesaid, should be paid by his trustee free from all legacy, probate, and succession duties, and he expressed his desire that his trustees should, if possible, complete the administration of his estate within three years from the date of his death. By one codicil he appointed a second trustee, and by a second codicil he recited that by his will he had directed his trustee to pay certain moneys to the German Consul for the time being at Brisbane, with written instructions to the said German Consul to remit the said moneys to Ferdinand Tautz, of Dresden, Saxony, in Germany, his executors or administrators, and the Parish Priest for the time being at Lewin, in Germany, and the Police Magistrate for the time being at Lewin aforesaid, to be expended by them in the manner directed by him in his said will, and he declared that neither Ferdinand Tautz, his executors or administrators, nor the said Parish Priest nor the Police Magistrate should be in any sense whatsoever considered as executors or trustees of his said will. The testator left considerable real and personal estate in Queensland. On 2nd April, 1919, probate of the will and two codicils was granted to the plaintiffs. The testator, who had never married, left him surviving no next-of-kin in this State. It had not been ascertained whether he left him surviving next-of-kin elsewhere. The testator was born at Lewin, Prussia, about 2nd August, 1841, and came to Queensland in January, 1864. He lived in Queensland from his arrival to the date of his death, and was naturalised according to the laws of that State in 1866. The defendant the Public Trustee was duly informed by notice in writing by the plaintiffs of the contents of the said will and codicils, and furnished with particulars of the estate required by him. By virtue and in pursuance of s. 9, subsec. 1 (i.) of the Trading with the Enemy Act, 1914-1916, the Minister for Trade and Customs, on 25th June, 1919, made a vesting order (vide Gazette, No. 83, 3rd July, 1919), of which the following is a copy: F.C. Re MITCHNER, DECEASED. UNION TRUSTEE COMPANY OF AUSTRALIA AND ANOTHER V. THE ATTORNEYGENERAL FOR THE OF AUSTRALIA "THE TRADING WITH THE ENEMY ACT, 1914-1916. "Whereas by The Trading with the Enemy Act, 1914-1916, it is amongst other things enacted that the Minister in any case COMMONWEALTH where it appears to him to be expedient to do so, may by order vest in the Public Trustee any property, real or personal (including any rights whether legal or equitable, in or arising out of property, real or personal), belonging to or held or managed for or or behalf of any enemy subject, or the right to transfer that property, and may by any such Order, or any subsequent Order, confer on the Public Trustee such powers of selling, managing, and otherwise dealing with the property as to the Minister seems proper: "And whereas it appears to me to be expedient to vest in the Public Trustee all property, real or personal (including all rights, whether legal or equitable in or arising out of property, real or personal), belonging to or held or managed for or on behalf of an enemy subject, and the right to transfer such property: Now therefore I, Walter Massy Greene, the Minister of State for Trade and Customs, do hereby vest in the Public Trustee all property, real or personal (including all rights, whether legal or equitable, in or arising out of property, real or personal), belonging to or held or managed for or on behalf of any enemy subject, and the right to transfer such property." The sum of £1500 bequeathed to the trustees for the time being of the General Cemetery at Warwick and the sum of £800 bequeathed to the trustees for the time being of the General Cemetery at Allora were, and each of them was, insufficient for the purpose of carrying out the objects of the bequests respectively in full, but the said objects could be carried out in a modified form. There are but a few members of the Church of England resident at Hendon in the will mentioned. Church of England services. were formerly held at Hendon, but the practice of holding such services was discontinued about ten years ago, owing to the paucity of attendance of worshippers at such services. A Church of England was not required at Hendon aforesaid, nor was it likely so to be for many years. F.C. Re MITCHNER, UNION TRUSTEE FOR THE Church of England services were, in fact, held at Talgai West, a few miles distant from Hendon, at regular intervals in a private residence. A Church of England was much desired at Talgai West, both by the Synod of the Diocese of Brisbane and by the individual worshippers at that place. The sum of £750 was, in view of the prevailing cost of building, insufficient to carry out the objects of the bequest. A suitable COMMONWEALTH Church could be erected at Talgai West, but not in brick or stone, nor provided with a gallery for the said sum. OF AUSTRALIA AND OTHERS. Sarah Eliza Neylan, in the will mentioned, was willing to sell her land in the will mentioned, and upon which the testator expressed a desire the church at Hendon should be erected, but was not willing to give the same for the purposes aforesaid. On 4th August, 1914, one Eugen Hirschfield was the German Consul at Brisbane, and from and after that date, he remained in this State until the year 1916, when he was removed to the State of New South Wales, and there interned. There was no German Consul for the time being at Brisbane aforesaid, nor has any person been appointed in lieu or in place of Eugen Hirschfield, but one Wilhelm Schoch, the Consul for Switzerland at Brisbane, acted in German interests. The plaintiffs have not been authorised by the Attorney-General of the State of Queensland or the Attorney-General of the Commonwealth of Australia to pay any part of the testator's estate to any German Consul when appointed. Ferdinand Tautz, his son William Tautz, and Elizabeth Conrad, the Parish Priest of the Roman Catholic Church at Lewin, the Police Magistrate at Lewin aforesaid, and the Parish Priest at Reinerz, at the date of the death of the testator and at the date of the issue of the writ herein and at the date of hearing, were and are German Nationals. The Treaty of Peace with Germany (including a protocol annexed thereto), signed at Versailles on 28th June, 1919, by (inter alia) representatives of the Commonwealth of Australia on behalf of His Majesty the King, came into force on 10th January, 1920. On 23rd January, 1920, notice, in accordance with par. (e) of Article 296 of the said Treaty was given to Germany by His Majesty's Government on behalf of the Commonwealth of Australia. Many questions of law for the opinion of the Supreme Court were submitted in the special case, of which only the following are material : (a) Is the bequest out of the residuary trust funds of £1500 to the trustees for the time being of the General Cemetery at Warwick a good and valid bequest wholly or in part, and if in part only, as to what part? F.C. Re MITCHNER, DECEASED. UNION TRUSTEE COMPANY OF AUSTRALIA AND ANOTHER V. THE ATTORNEYGENERAL FOR THE (b) Is the bequest out of the residuary trust funds of £800 to the trustees for the time being of the General Cemetery at COMMONWEALTH Allora a good and valid bequest wholly or in part, and if in part only, as to what part? (c) If the said bequests are, or either of them is, good and valid, may the same be carried out cy-pres ? (d) Is the bequest out of the residuary trust funds of £200 to the Roman Catholic Church at Warwick and the Church of England at Warwick as to income and/or capital a good and valid bequest wholly or in part, and if in part only, as to what part? (e) Is the bequest out of the residuary trust funds of £100 to the Roman Catholic Church at Allora and the Church of England at Allora as to income and/or capital a good and valid bequest wholly or in part, and if in part only, as to what part? (i.) Is the bequest out of the residuary trust funds of £750 for the erection at Hendon of a Church of England and the providing of a gallery, organ, seating accommodation, and a bell a good and valid bequest wholly or in part, and if in part only, as to what part? If the said bequest is good and valid, will the same be carried out cy-pres by the erection of a Church of England at Talgai West or otherwise? (ii.) May any portion of the said sum of £750 for the erection at Hendon of a Church of England be applied for the purpose of purchasing the said land in the said will mentioned from the said Sarah Eliza Neylan? (iii.) Or may any portion of the testator's residuary estate other than the said sum of £750 be used in or towards the purchase of such land? (iv.) In the event of the trustees purchasing out of the residue of the testator's estate a suitable block of land for the purpose of erecting a church, must such suitable block of land be situate at Hendon aforesaid, or may the trustees purchase any such block elsewhere or within the reasonable vicinity of Hendon? (z) (ii.) Is there any intestacy as to any, and if so, what part of the testator's estate? (iii.) What is the duty of the plaintiffs in respect to the bequests under the said will to persons who are German Nationals? (iii.) (a) Are such bequests vested in the OF AUSTRALIA F.C. Re MITCHNER, DECEASED. COMPANY OF AUSTRALIA AND defendant the Public Trustee? (b) Are such bequests charged with payment of the amounts referred to in reg. 20 (i.) of the UNION TRUSTEE Treaty of Peace Regulations? (c) Should such bequests be paid to, or according to the directions of, the defendant the Public Trustee, or how otherwise? (iv.) Does any and what part of the THE ATTORNEY- testator's estate escheat or become forfeited to the Crown as GENERAL represented by the State of Queensland? (v.) By whom and out COMMONWEALTH of what fund should the costs of and incidental to this action OF AUSTRALIA and special case be paid? FOR THE AND OTHERS. Stumm K.C. and Hart, for the plaintiffs: The gifts to the trustees of the two cemeteries are valid, and do not transgress the rule against perpetuities. So also are the gifts to the Roman Catholic Churches and the Churches of England. The general principles of the law relating to gifts or trusts of property for charitable objects are set out in Commissioners of Income Tax v. Pemsel, per Lord Macnaughten (1), vide also Morice v. Bishop of Durham (2) and In re Macduff, Macduff v. Macduff (3). There erection of a shelter shed or a church is a charitable object. A bell, steeple, belfry, seating accommodation, and organ are part of the shelter shed or church wherein they are placed. The bust or monument and the vault directed to be put in the shelter shed are also good charitable gifts, as part of the fabric of the whole charitable structure. Hoare v. Osborne (4), In re Palatine Estate Charity (5), In re Wilson, Twentyman v. Simpson (6), Biscoe v. Jackson (7), Wharton v. Masterman (8), In re Vaughan, Vaughan v. Thomas (9), In re Pardoe, McLaughlan v. Attorney-General (10). As the gifts are good charitable bequests, if the amount of the bequest is insufficient to carry out the intention of the testator in the exact form he has indicated, the Court will give effect to his general charitable intention in favour of charity, and his benefaction will be applied cy-pres. The conditions attached to the gifts in this will are not essentials. Hence modification may be made in the form of construction and in the materials used for the erection of the shelter sheds. The general charitable intention to provide a Church of England at Hendon can be carried out cy-pres by the erection of a church for that religious denomination in the vicinity (1) [1891] A.C. 531, at p. 583. (3) [1896] 2 Ch. 451, at p. 466. (4) 1866, L.R. 1 Eq. 585. (6) [1913] 1 Ch. 314. (7) 1887, 35 Ch.D. 460. (8) [1895] A.C. 186, at pp. 193, 198. (9) 1886, 33 Ch.D. 187. (10) [1906] 2 Ch. 184. |