F.C. Re MITCHNER, DECEASED. UNION TRUSTEE COMPANY OF AUSTRALIA AND ANOTHER V. GENERAL FOR THE of Hendon. Incorporated Society v. Price (1), Wallis v. SolictorGeneral for New Zealand (2), Chamberlayne v. Brockett (3). The gift of residue does not contravene the rule against perpetuities. The will, read as a whole, shows that the gifts were not conditional. The testator intended to make direct gifts to the beneficiaries in Germany named in his will, and knowing that THE ATTORNEYpayment of those gifts could not be made during the war, he adopted as the mode of effectuating his intention, the services COMMONWEALTH of the German Consul at Brisbane, acting with the authority of the Attorney-General of the Commonwealth. The gifts were present gifts, solvenda in futuro, and the method devised for transferring the gifts should not be construed as a condition. The German Consul was merely a conduit pipe. If the testator had directed the transfer to be made by some financial institution, and that institution had ceased operation or become defunct, the gifts would not, ipso facto, become void. [Counsel argued on the validity of the gifts to German Nationals and German charitable institutions, but in the view taken by the Court, it was unnecessary to pronounce any decision on the clauses of the will relating to those matters.] Henchman, for the Public Trustee of the Commonwealth of Australia and the Attorney-General of the Commonwealth. As to the gifts to charities in Queensland these defendants take no part in the argument. But if those gifts fail wholly or in part, whatever part thereof, and all of the testator's estate which was given to, or passed on an intestacy to, persons who were enemy subjects at the time of the death of the testator, or were German Nationals at the date of the Treaty of Peace, became vested in the Public Trustee of the Commonwealth under The Trading with the Enemy Act, 1914-1916, or under reg. 20 of the Treaty of Peace. The disposition of the residuary estate may be contrary to the rule against perpetuities, and so void, in which case there would be an intestacy, and the persons entitled as next-of-kin (if any) may be German Nationals. But the testator shows an intention to devote his residuary estate to charity as from his death, and the gift of the residue is not conditional on the appointment of a German Consul and on the consent of the Attorney-General. Immediate gifts were made of the residue, and by virtue of the Trading with the Enemy Act and the Treaty (1) 1844, 1 Jo. & La. 498. (2) [1903] A.C. 173. (3) 1872, L.R. 8 Ch. 206, OF AUSTRALIA F.C. Re MITCHNER, DECEASED. UNION TRUSTEE COMPANY OF AUSTRALIA AND ANOTHER V. FOR THE OF AUSTRALIA AND OTHERS. of Peace, those gifts are now vested in the Public Trustee. The gift was not conditional. Chamberlayne v. Brockett (1), In re Bowen, Phillips v. Davis (2). In re Lord Stratheden and Campbell (3) is distinguishable. There the title or right was conditional as well as the enjoyment, but the testator in the THE ATTORNEY- present case created trusts to take effect from his death. The GENERAL second codicil recites the gifts as immediate, and the will directs COMMONWEALTH that the trustees shall, if possible, complete the administration of his estate within three years from the date of his death. In re Gyde (4), In re Swain, Monckton v Hands (5). The Trading with the Enemy Act, 1914-1916, s. 2, definition of "enemy." Proclamation (No. 2) of 9th September, 1914, Section 9 I. (i.) gives power to the Minister to vest any property or the right to transfer any property in the Public Trustee, and by s. 9 I. (ii) a vesting order made under the section vests the property or the right to transfer the property in the Public Trustee without further conveyance, assurance, or document. By s. 9 D. (i.) the Public Trustee shall hold any property vested in him until the termination of the war, and thereafter deal with it as the Governor-General directs. The effect of a vesting order under that Act is explained in In re Münster (6), In re Schiff, Henderson v. Schiff (7). Hence under the vesting order, the property of the testator, whether the gift be a valid gift of that property to the beneficiaries named in the will, or whether it passes on intestacy to his next-of-kin, vests in the Public Trustee under that Act and the regulations. If the Public Trustee does not take the property under the Trading with the Enemy Act, he takes it under the Treaty of Peace, vide Articles 296, 297, and 298, and the annex to those sections, Vide also Regulations under The Treaty of Peace Act, 1919, dated 28th January, 1920, regs. 2, 20. Roche v. Kronheimer (8), In re Nierhaus (9), In re Levinstein (10), Stoeck v. Public Trustee (11), In re National Bank für Deutschland (12). The property therefore is now vested in the Public Trustee, and the right of the beneficiaries or next-of-kin who are German Nationals is a right to receive compensation from Germany for the property retained by the Public Trustee. Treaty of Peace, Article 297 (i.), Annex 14. F.C. Re MITCHNER, Macrossan, for the Attorney-General of Queensland: The Attorney-General supports the argument in favour of charities. His position is that stated in Ware v. Cumberledge (1), In re UNION TRUSTEE Kang, Jackson v. Attorney-General (2). Salkeld for the Public Trustee : The gift of the residue is not conditional; there is an immediate bequest, with an indication by the testator of the manner in which the trustees should endeavour to carry out that bequest in view of the war existing. The beneficiaries of the residue became entitled under the will immediately on testator's death to a vested interest; no condition was directly attached to any gift, the right to receive and enjoy was merely postponed until the bequests could properly be paid over. The words prefacing the residuary bequest merely indicate the machinery whereby the testator endeavoured to give effect to his gifts, and those clauses should not therefore be construed as conditions precedent, and the gifts are not void as forbidden by the rule against perpetuities. He cited In re Geck (3), Tyssen on Charitable Trusts, 2nd Ed., pp. 161, 186; Attorney-General v. Downing (4), Attorney-General v. Bowyer (5), Attorney-General v. Bishop of Chester (6), In re Lavelle, Concannon v. Attorney-General (7), Re Churchill (8). [Argument was also directed to the Court by Mr. Salkeld on the validity of the bequests of the residuary estate to German subjects and charitable institutions, and on the effectuation of the charitable trusts, where the fund was payable to charities out of the jurisdiction. But as the Court decided that no valid disposition of the residuary estate had been made, those questions were not considered by the Court.] Macgregor, for the next-of-kin: The gift of the residuary estate is invalid. It contravenes the rule against perpetuities, and there is an intestacy. Whether there are any next-of-kin must be ascertained by proper inquiries in the administration of the estate. In the case of In re Lord Stratheden and Campbell (9), a bequest of an annuity to a volunteer corps on the appointment of the next lieutenant-colonel was held void as an infringement of the rule against perpetuities. Worthing Corporation v. Heather (10). The gift of residue is subject to two conditions, (1) 1855, 20 Beav. 503, at p. 510. (2) [1917] 2 Ch. 420. (3) 1893, 69 L.T. 819. (4) 1767, Wilm. 24. (5) 1798, 3 Ves. 714. (6) 1785, 1 Bro. C.C. 444. COMPANY OF AUSTRALIA AND ANOTHER V. THE ATTORNEYGENERAL FOR THЕ COMMONWEALTH F.C. neither of which may arise within the time Re MITCHNER, of the law against perpetuities, or at all. DECEASED. THE ATTORNEY- FOR THE COMMONWEALTH prescribed by the rules Those rules apply to 297, 312-314; In re v. Schiff (2), Sadlier v. Attorney-General of New Zealand (3). All gifts to German beneficiaries fail. If they are good, there is a lapse as to some, and therefore there must be an inquiry as to the next-of-kin. In re In re A gift Wassell, for the defendants representing charities in Queensland: The gifts to the trustees of Allora and Warwick cemeteries are valid charitable gifts. A public burial ground is a charity -Attorney-General v. Blizard (4)—whether it is in church grounds or not. In re Manser, Attorney-General v. Lucas (5). Moreover, those cemeteries are of general public utility, and have statutory recognition as charities. The Cemeteries Act of 1865, ss. 3, 6, 16, 17, 18, 19, 21, 22. The gift for erection of the shelter shed is good, and so is the gift for making repairs thereto. Manser (6), In re Douglas, Douglas v. Simpson (7), Pardoe (8), In re Vaughan, Vaughan v. Thomas (9). of ornaments for a church or a tablet, memorial, organ, bell, or gallery are necessary ornaments of the church or accessories thereto or part of the fabric, and are charitable, and so also is a monument, bust, vault, bell, steeple in a cemetery. Hoare v. Osborne (10), Re Barker Sherrington v. St. Paul's Cathedral (11) Trimmer v. Danby (12), Re Rigley's Trusts (13). The clauses of the will relating to the erection of shelter sheds and a church clearly show a general charitable intention, and if the expressed intention cannot be carried out exactly in the form indicated in the will, because the amounts bequeathed are not sufficient, the Court will, by a scheme cy-pres, direct the mode in which this trust is to be executed. The charitable object was the erection of sheds and a church. The expressed particulars of architectural construction favoured by the testator or the indication of his preference for certain kinds of building materials and other details are not an essential part of the gift, and it is easily possible to comply notionally with the conditions of the will. It is possible to carry out the charitable intention of the testator in regard to (1) 1886, 33 Ch.D. 449, at p. 453. (3) 1919, N.Z. Gaz. L.R. 281. (4) 1855, 21 Beav. 233. (5) [1905] 1 Ch. 68, at pp. 73, 75. (8) [1906] 2 Ch. 184. 1922. F.C. Re MITCHNER, UNION TRUSTEE GENERAL FOR THE OF AUSTRALIA each shelter shed and the church and the ancillary things in them in a manner, which, although not giving full effect to the testator's expressed wishes, will, nevertheless, be a substantial compliance with them, and will effectuate his general charitable object. The testator's directions as to form and mode of erection are, at the most, conditions subsequent to his gifts, which merely THE ATTORNEYrelate to the mode of application, and which do not affect their validity. The Court is asked to declare that the gifts of the COMMONWEALTH erection of two shelter sheds and the church may be carried out cy-pres, under scheme. a proper On the cy-pres doctrine he referred to Attorney-General v. Ironmongers Co., per Cottenham L.C. (1), In re Wilson, per Parker J. (2), In re Welsh Hospital (Netley) Fund (3), Incorporated Society v. Price (4), Attorney-General v. Vint (5), Re Willis, Shaw v. Willis (6), In re Campden Charities (7). If any of the gifts fail as not being charitable, an apportionment should be made. Cf. Muir v. Archdall (8), Hunter v. AttorneyGeneral (9), Salusbury v. Denton (10). As to the trust to invest money and divide the income between two churches for fifty years, and then to divide the corpus. Those gifts are good. Chamberlayne v. Brockett (11), Wharton v. Masterman (12). A charitable trust may be perpetual. Wallis v. Solicitor-General for New Zealand (13). This gift, however, is an immediate gift. The income and the capital are given to the churches, and they are entitled to immediate payment. In re Williams, Williams v. Williams (14). The gift of £750 for erection of a church at Hendon is clearly good. If strict compliance cannot be observed in carrying out the charitable intention of the testator, the benefaction will be applied cy-pres. As the church cannot be erected on Neylan's land, a suitable site is to be provided by the trustees. No restriction is stated as to the locality of the suitable site. There is an intention to benefit a particular denomination in a certain district by the erection of a place of worship available to inhabitants of that district, and if the general charitable intention to erect a church, which would be of use and would so give effect to that intention, cannot be (1) 1840, Cr. & Ph. 208, at p. 227. (2) [1913] 1 Ch. 314, at p. 323. (3) [1921] 1 Ch. 655. (4) 1844, 1 Jo. & Lat. 498. (5) 1850, 3 DeG. & Sm. 704. (6) [1921] 1 Ch. 44. (7) 1881, 18 Ch.D. 310. (8) 1919, 19 S.R. N.S.W. 10. (9) [1899] A.C. 309 at p. 324. (10) 1857, 3 K. & J. 529. (11) 1872, L. R. 8 Ch. 206, at p. 211. (12) [1895] A.C. 186. (13) [1903] A.C. 173, at p. 186. (14) [1907] 1 Ch. 180. |