F.C. carried out by building at Hendon, the Court will, under a Re MITCHNER, Scheme cy-pres, authorise the erection at Talgai West or some other suitable place. In re Wiseman's Trusts (1), Murdoch v Attorney-General (2). DECEASED. UNION TRUSTFE ANOTHER V. FOR THE COMMONWEALTH AND OTHERS. Shand J. Stumm K.C., in reply, cited In re Vagliano (3), In re Fraser, Yeates v. Fraser (4), Brown v. Whitty (5), In re Smith, Johnson v. Bright Smith (6), In re Münster (7), In re Ferdinand (8), Treaty of Peace, Article 438. : SHAND J. This is a special case stated under the provisions of O. XXXVIII. for the determination of numerous questions arising upon certain dispositions contained in the will of the late William Mitchner, who died on the 1st day of June, 1918, and whose will, dated the 21st day of April, 1918, together with two codicils thereto dated respectively the 21st and 25th of April, 1918, was, on the 2nd of April, 1919, proved by the plaintiffs, the executors and trustees thereby appointed. We will deal with these questions in the order in which they are set out in the special case. 1. By his will, the testator directed his trustees to stand possessed of a sum of £1500, part of his residuary trust funds, upon the following trusts-that is to say, "upon trust to pay the same to the trustees for the time being of the General Cemetery at Warwick for the following purposes :-Firstly in erecting a shelter shed of brick or like material at the said cemetery such shelter shed to contain in the left hand wing thereof a marble monument with an emblem of a simple marble cross thereon, the said monument to be surrounded with iron railings and to be inscribed as follows:-This shelter shed is the gift of William Mitchner for the benefit of the Publie. Born August 2nd 1841, died Secondly, in providing within the shelter shed a suitable vault to contain my body. Thirdly, in containing a bust in plaster of myself to be placed upon or near the said vault. Fourthly in providing the said shelter shed with appropriate steeple bell and belfry. And I declare that of the said sum of £1500 the sum of £150 shall be expended by the said trustees of the Warwick Cemetery in the erection of the said vault and in the purchase of the said bust. (1) 1915, V.L.R. 439. (4) 1883, 22 Ch.D. 827. And that they shall (5) 1901, 11 Q.L.J. 133. (6) [1914] 1 Ch. 937. (7) [1920] 1 Ch. 268, at pp. 278-9. (8) [1921] 1 Ch. 107. 1922. expend not less than £100 or more than £150 in the purchase of the said bell. And that they shall retain and invest the sum of £200 and apply the income thereof in and towards the maintenance of the said shelter shed vault and bust." F.C. Re MITCHNER, DECEASED. UNION TRUSTEE COMPANY OF AUSTRALIA AND ANOTHER V. GENERAL FOR THE OF AUSTRALIA Shand J. In our opinion, the last mentioned sum of £200 is not bequeathed as a separate gift in addition to the sum of £1500, but, like the THE ATTORNEYsum of £150, to be expended in the erection of the vault and purchase of the bust, and the sum of not less than £100 or more COMMONWEALTH than £150 to be expended in the purchase of the bell, is intended to come out of the £1500. The bequest, then, of £1500 is an immediate gift, which, except as to this sum of £200 part thereof, is applicable at once to the purposes for which it is given. But the sum of £200 is to be retained, and the income thereof applied in and towards the maintenance of the shelter shed, vault, and bust for an indefinite period, and a trust for the maintenance of a tomb or vault, not forming part of something whereof the maintenance would constitute a charitable purpose, is not, we think, a trust for a charitable purpose. Hoare v. Osborne (1), Muir v. Archdall (2). We think, however, that the maintenance of a shelter shed in a public cemetery may fairly be regarded as a charitable purpose, and that the maintenance of the vault and bust may fairly be regarded as incidental to the maintenance of the shelter shed, within which the vault and bust are to be placed. Moreover, the maintenance of a vault seems to be expressly authorised by the provisions of The Cemetery Act, 1865, if the trustees of the cemetery are willing to undertake it. See ss. 15, 16, and 19 of that Act. In answer to question (a), we are of opinion that this gift of £1500 is wholly good and valid. 2. The testator next went on to direct his trustees to stand possessed of the sum of £800, being further part of his residuary trust funds, upon the following trusts-that is to say: "In trust to pay the same to the trustees for the time being of the General Cemetery at Allora-for the erection of a shelter shed vault monument cross railings bust steeple bell and belfry similar to but at a porportionably lesser cost in all respects to that herein before directed by me to be erected in the cemetery at Warwick except that the trustees of the said Allora Cemetery shall invest the sum of £150 only and apply the income thereof (1) 1866, L.R. 1 Eq. 585. (2) 1919, 19 S.R. N.S.W. 10. F.C. Re MITCHNER, UNION TRUSTEE AUSTRALIA AND in and towards the maintenance of the shelter shed in the said Allora Cemetery and the contents thereof." For reasons similar to those which we have already expressed with reference to the bequest of £1500 to the trustees of the Warwick Cemetery, we think that the answer to question (b) THE ATTORNEY- with reference to the bequest of £800 to the trustees of the Allora Cemetery should be similar to that given to question (a). ANOTHER V. GENERAL FOR THE COMMONWEALTH OF AUSTRALIA AND OTHERS. Shand J. 3. It is, however, stated in the special case that these two sums of £1500 and £800 are respectively insufficient for the purpose of carrying out the objects of the bequests in full, but that the said objects can be carried out in a modified form. We think that the will shows a clear general intention to have certain structures erected and maintained, and that if the moneys appropriated to these purposes are insufficient to enable effect to be given to this general intention mode et forma, the general intention should be carried out, although the particular mode of carrying it out prescribed by the testator may prove impracticable. The directions as to the manner in which effect is to be given to the general intention are not, we think, of the essence of the gift, and though to be attended to, if possible, might be modified if effect could not otherwise be given to the general intention. Without fuller information with reference to the facts, no further answer can, we think, at present be given to question (c). The circumstances necessitating modification of the designs prescribed by the testator and the nature of the modifications proposed would have to be investigated on a proper application to a Judge for that purpose. 4. The trust to invest the sum of £200, and divide the income thereof between the Roman Catholic Church and Church of England at Warwick equally for the benefit of the said churches. respectively for the period of fifty years, and thereafter to divide the said sum of £200 between the said churches equally, to be expended in permanent improvements for the said churches, is, in our opinion, clearly a charitable trust, and therefore valid, although the distribution of the capital is delayed for a period of fifty years. But as the income during that period is applicable "for the benefit of the said churches" generally, and the capital at the expiration of that period is applicable only to "the permanent improvements for the said churches," we do not think that the capital can be paid over to the persons authorised to give discharges therefor until the expiration of the fifty years. It will be apparent that, in our opinion, question (d) should be answered-The bequest is a wholly good and valid bequest, both of the income and of the capital. 5. For similar reasons, question (e) with reference to the bequest of £100 should, we think, receive a similar answer. F.C. Re MITCHNER, DECEASED. UNION TRUSTEE COMPANY OF AUSTRALIA AND ANOTHER V. GENERAL FOR THE 6 The bequest out of the residuary estate of £750 for the THE ATTORNEYerection at Hendon of a Church of England and the providing of a gallery, organ, seating accommodation and a bell is, we think, COMMONWEALTH clearly a good bequest. In our opinion, therefore, the first part of question (e) (i.) should be answered by saying that the bequest is good and valid. The second part of question (e) (i.) can, we think, only be answered by stating that, in our opinion, the bequest falls within the class of cases where a general charitable intention can be inferred, and therefore, if necessary, can be carried out cy-pres. If, after the matter has been investigated in proper proceedings taken for that purpose, it is found that the amount of the bequest is, as stated in the special case, insufficient to build a church strictly in accordance with the directions given by the testator, we think effect could be given to the testator's paramount intentions, although the particular mode of carrying it out might have to be modified. But without fuller knowledge of the facts, we are not prepared to say that those stated in the special case, even if established to the satisfaction of a Judge, would justify the erection of a church in any place other than Hendon. See Attorney-General v. Bishop of Oxford (1). 7. We can discover nothing in the will which would justify the. application of any portion of the sum of £750 to the purchase therewith of the land sold by the testator to Sarah Eliza Neylan other land. or any We therefore think that question (e) (ii) should be answered in the negative. 8. By the will the testator, after expressing a desire that the church should be erected upon the land sold by him to Sarah Eliza Neylan, subject to a mortgage executed by her in his favour goes on to direct that if his trustees cannot arrange with the said Sarah Eliza Neylan for the erection of the church on this land, they shall purchase out of the residue a suitable block of land for that purpose. (1) 1786, 4 Ves. 432. OF AUSTRALIA Shand J. F.C. UNION TRUSTEE We construe these words to mean that if Sarah Eliza Neylan is Re MITCHNER, willing to give up her title to her land, the trustees are to build DECEASED. the church upon it, and we suppose to release the mortgage thereon, but that otherwise another suitable block of land is to be purchased by the trustees out of the testator's residuary estate, and although THE ATTORNEY- no specific amount of the residuary estate is by the will GENERAL appropriated for this purpose, we think it could be ascertained COMMONWEALTH by inquiry whether such other suitable block could be purchased at a reasonable price. FOR THE OF AUSTRALIA AND OTHERS. Shand J. It will be apparent that, in our opinion (e) (iii.) should be answered in the negative, but that, in our opinion, a reasonable portion of the testator's residuary estate other than the £750 could be used in purchasing other land-if such other land was found to be purchasable at a reasonable price. 9. If the circumstances proved to be such as would justify the erection of the church elsewhere than at Hendon, we think that the suitable block of land purchased for the purpose of erecting such church thereon might also be situated elsewhere than at Hendon. At present no further answer can, we think, be given to question (e) (iv.). 10. We come now to the trusts declared with reference to the remainder of the testator's residuary trust funds, which are prefaced by the following words : "In trust to pay the same from time to time as and when the same shall be available to the German Consul for the time being at Brisbane when such Consul shall have been appointed and my trustees shall have been duly authorised in that behalf by the Attorney-General for the State of Queensland or the Attorney-General 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 administrators and the said Parish Priest and Police Magistrate in the manner following: By reason of these words it was contended by Mr Macgregor, counsel for the testator's next-of-kin, that the gift of the remainder of the residuary trust funds was dependent upon two conditions |