Between: LUTHERAN CHURCH OF AUSTRALIA SOUTH AUSTRALIA DISTRICT INCORPORATED
And: FARMERS' CO-OPERATIVE EXECUTORS AND TRUSTEES LTD

Judges: Barwick CJ
McTiernan J
Menzies J

Windeyer J

Subject References:
Succession
Wills
Gift of 'Commonwealth bonds'
Delegation of testamentary power
Transfer of property to named charity
Validity

Judgment date: 1 May 1970

SYDNEY

Decision by:
WINDEYER J

The testatrix, an elderly woman, wrote her own will. She obviously followed some model, perhaps an earlier will, which was couched in legal language. But, either because the model was defective or, more probably, because her copying was inexact and incomplete, she produced a will which is in parts debatably expressed. It is set out in full elsewhere. I need not repeat it. Counsel pointed to mis-spellings and minor verbal inelegancies. I do not think that anything turns on these. The only one of any significance is that Farmers' Co-operative Executors and Trustees Limited, which I shall call the trustee, was not in terms appointed by the will to be executor and trustee. The sentence is truncated, but the meaning is obvious from the name and nature of the company. Probate was duly granted to it. It is not questioned that the words "my trustees" in cl. 6 of the will refer to it, and that the whole estate of the testatrix devolved upon it as executor and trustee.

There are two questions in the case. The first arises under cl. 4 of the will; the second under cl. 6. I shall deal with them in that order.

Clause 4

The question under cl. 4 is whether the bequest of "All my Commonwealth Bonds" carries the testatrix's holding of Commonwealth Government inscribed stock created pursuant to s. 4 of the Commonwealth Inscribed Stock Act 1911-1966 (which I shall for convenience refer to as the Act). At the date of her will, and at the date of her death, the testatrix possessed both "treasury bonds" and "stock" as defined in s. 3 of the Act. In my opinion her gift of "All my Commonwealth Bonds" comprised all the investments in Commonwealth loans which she had at her death. There have been decisions, one way and the other, upon like words in other wills. But we are not to decide this case by choosing among decisions by other judges as to what other testators meant by words used in other contexts. Those decisions may give some guidance. They may suggest the proper conclusion if the reasoning on which they were based be apposite and persuasive. But they cannot compel a conclusion or be treated as dictionaries. Some of them are obviously distinguished from this case. No one of them must be followed. We may gratefully find refuge from all these "authorities" in the judgments in the House of Lords in Perrin v Morgan, ^[F35] and there escape the constrictive discipline of verbal precedents. Out of much that their Lordships eloquently said, I quote two passages from the speech of Lord Simon. I set them out at length because they are so delightfully pertinent in the present case. The expression their Lordships had to consider was "money". Here it is "Commonwealth bonds". Each has, in common parlance, a wide as well as a restricted meaning. I quote first: ^[F36]

"My Lords, the fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case-what are the `expressed intentions' of the testator. In the case of an ordinary English word like `money', which is not always employed in the same sense, I can see no possible justification for fixing on it, as the result of a series of judicial decisions about a series of different wills, a cast-iron meaning which must not be departed from unless special circumstances exist, with the result that this special meaning must be presumed to be the meaning of every testator in every case unless the contrary is shown. I agree, of course, that, if a word has only one natural meaning, it is right to attribute that meaning to the word when used in a will unless the context or other circumstances which may be properly considered show that an unusual meaning is intended, but the word `money' has not got one natural or usual meaning. It has several meanings, each of which in appropriate circumstances may be regarded as natural."

And later: ^[F37]

"These wider meanings of `money' are referred to in some of the reported cases as `popular' meanings, in contrast to the `legal' meaning of the term, but for the purpose of construing a will, and especially a home-made will, a popular meaning may be the more important of the two. The circumstance that a skilled draftsman would avoid the use of so ambiguous a word only confirms the view that, when it is used in a will, the popular as opposed to the technical use of the word `money' may be important. I protest against the idea that, in interpreting the language of a will, there can be some fixed meaning of the word `money', which the courts must adopt as being the `legal' meaning as opposed to the `popular' meaning. The proper meaning is the correct meaning in the case of the particular will, and there is no necessary opposition between that meaning and the popular meaning. The duty of the court, in the case of an ordinary English word which has several quite usual meanings which differ from one another is not to assume that one out of several meanings holds the field as the correct meaning until it is ousted by some other meaning regarded as `non-legal', but to ascertain without prejudice as between various usual meanings which is the correct interpretation of the particular document."

The expression "Commonwealth bonds" is not a technical term. It has no strict primary meaning. It can be used, and it is sometimes used, to mean treasury bonds as defined in the Act, as distinct from stock as there defined. It can no doubt mean too bonds issued pursuant to the Loans Securities Act 1919-1959 (Cth). These differ from both treasury bonds and stock: see Ervin v Federal Commissioner of Taxation. ^[F38] It can also denote "special bonds" as defined in s. 23E (3) of the Income Tax Assessment Act 1936-1937 (Cth). But we are not concerned with any particular kinds of bonds. The only question is whether we are to read the words "Commonwealth bonds" as including both inscribed stock and treasury bonds issued under the same Act and substantially equivalent as securities. The learned Chief Justice of South Australia said that the term "Commonwealth bonds" can, used in an ordinary sense, denote inscribed stock. That I consider is indisputable. Of course, what one accepts as an ordinary sense of a word or phrase must depend upon one's acquaintance with it in ordinary parlance and in writings that are ordinarily read and widely read. People who read newspaper reports of dealings and quotations on Australian stock exchanges must be aware of different descriptions of Commonwealth loans. Among the headings that anyone can read-depending upon the newspaper he consults-are "Government Bonds", "The Bond Market", "Australian Consolidated Securities", "Commonwealth Loans", "Loans", "Bonds". It is, I consider, entirely permissible for a judge, who has to take notice of the ordinary meanings of the words here in question, to be aware of and to notice these usages. Resorting to stock exchange nomenclature, when considering the meaning today of "Commonwealth bonds", seems no less justifiable than were Lord Simon's quotations from the Bible and from Tennyson for the meaning of "money" in 1943. The only significant legal distinction between stock and bonds issued in respect of subscriptions to the same loan is in the methods by which they are transferable: the former by an instrument of transfer in the prescribed form; the latter by delivery (s. 51C of the Act and s. 5 of the Treasury Bills Act 1914-1966 (Cth)). This does not affect testamentary disposition of either. The interest of a subscriber to a Commonwealth loan can, at his option, be recorded and authenticated by an inscription of stock or by the issue of a bond: and, by s. 51E of the Act, either is exchangeable for the other.

Therefore, as in ordinary parlance the term "Commonwealth bonds" is frequently used to cover both treasury bonds and inscribed stock, and as the testatrix had no reason to distinguish between the two manners in which she held her investments in Commonwealth loans, I am satisfied that by cl. 4 of her will she effectually gave them all to Frank John Stapleton, her stepson.

I thus agree with the conclusion of Bray C.J. on this aspect of the case. I would, however, add that I think his Honour need not have declined the reinforcement of his conclusion which is furnished by evidence of the way in which the testatrix was herself accustomed to use the term "Commonwealth bonds". This emerges from lists which she kept of her investments and from other documents, all in her own handwriting. In these her holdings of inscribed stock are sometimes called "Commonwealth bonds". Sometimes she used the term "Commonwealth loans" and used it to cover bonds. She did not use the terms "stock" or "inscribed stock" at all. Evidence of these facts was I think admissible. Clearly it is cogent. Of course extrinsic evidence is not admissible to contradict what a will unambiguously says. Every testator must be taken to have meant what he said. We were referred in the course of argument to the well-known and forceful statements to this effect of Lord Coleridge in Shore v Wilson, ^[F39] at pp. 517, 518]. I take the governing principle to be as it has been stated, for well over a century, in Wigram on Extrinsic Evidence in aid of the Interpretation of Wills, at p. 8, as follows:

"... any evidence is admissible, which, in its nature and effect, simply explains what the testator has written; but no evidence can be admissible which, in its nature or effect, is applicable to the purpose of showing merely what he intended to have written. In other words, the question in expounding a will is not,-What the testator meant? as distinguished from-What his words express? but simply-What is the meaning of his words? And extrinsic evidence, in aid of the exposition of his will, must be admissible or inadmissible with reference to its bearing upon the issue which this question raises."

The evidence of the sense in which the testatrix habitually used the phrase "Commonwealth bonds" simply explains the meaning of the words she wrote in her will. She used an expression which is capable of a wide and of a narrow denotation. It can be a generic term comprising all Commonwealth Government securities created and issued pursuant to the Act; or it may be used to designate only a species of that genus. In these circumstances evidence that the testatrix commonly used the term in its generic sense was, I think, admissible when the question is-In which sense did she use the term when she herself wrote it in her will?

Clause 6

I pass now to cl. 6 of the will. It is convenient to set it out in full.

"6. My Trustees have discretionary power to transfer any morgages, and property, and Shares in Companies invested in my name to the Lutheran Mission 20 Marborough St. St. Peters, S.A. for building Homes for Aged Blind Pensioners after All expenses paid, and I desire that there shall be no subsequent adjustment or apportionment therefore between any of the beneficiaries under my Will."

There is no express residuary clause in the will. But cl. 6, both by its terms and from its position, obviously relates to property remaining in the hands of the trustee after all testamentary expenses and expenses of administration have been met, the pecuniary legacies provided and the Commonwealth bonds made over to the donee. The clause manifests an intention that all the legatees are to get their gifts in full and clear of any liability to contribute to expenses of any kind. That emerges clearly from the last sentence of the clause when the word "therefore" is read as "therefor", which would be the more usual spelling. It then means "for them", namely the expenses. That is a perfectly correct formal use of the word "therefor", especially in legal instruments: see the Oxford English Dictionary and Fowler's Modern English Usage. The word, however spelt, was no doubt in whatever model the testatrix had before her when she wrote her will. Given its proper legal sense, it causes no difficulty. The words commencing "all expenses paid" to the end of the clause have two results. First, they ensure that the burden of all expenses-and it is now conceded that these include death and estate duties-falls upon the residue in exoneration of the legacies. Secondly, they thus indirectly describe the property in respect of which the trustee is given a "discretionary power". That is, as I read the clause, the whole clear residue. I do not think that the words "any mortgages and property and shares" mean any such as the trustee may choose to give. They mean, I consider, any mortgages, property and shares remaining "after all expenses paid". That is their natural grammatical sense in the context.

One thing is beyond question in cl. 6. The purpose to which the trustee is authorized, or required, to devote residuary property is a charitable purpose in the legal sense. "Building homes for aged blind pensioners" answers, as directly as could be, to the words in the Statute of Elizabeth, 1601 (43 Eliz. 1 c. 4 (Imp.)), "the relief of aged, impotent and poor people": see In re Lewis, decd.; Public Trustee v Allen ^[F40] and cases there cited. A charitable trust is always a trust for a purpose, not for a person or persons. The will states a particular charitable purpose. The agent nominated by the testatrix to carry out that purpose is the Lutheran Mission at 20 Marlborough Street. This describes a readily identifiable activity of the Lutheran Church. The Mission is not itself a body corporate. That is of no significance. The testatrix obviously meant by the Mission those who direct the missionary activities or who can hold property for carrying out its charitable purposes. She made perfectly clear the purpose for which the Mission was to use her bounty. If those in control of the Mission were, for any reason, unable or unwilling to carry this purpose into effect, some other persons could be appointed trustees in their stead. This would not be, in a strict sense, an application of property cy-prss. It would be merely ensuring that a particular charitable purpose did not fail for want of a trustee to carry it out. The ultimate question is not, I think, really one of a general or a particular charitable intention. The purpose, as the testatrix expressed it, is precise, particular and apparently possible. It dominates, I think, the means for its execution: cf. Royal North Shore Hospital of Sydney v Attorney-General (N.S.W.). ^[F41]

The learned Chief Justice of South Australia held that cl. 6 failed for uncertainty, and that the residue of the estate devolved as on an intestacy. This, he said, was because the testatrix had not indicated in her will the persons who were to take her residuary estate, but had merely empowered the trustee in its discretion to devote it to a particular charity. This, his Honour regarded as an attempt by the testatrix to delegate her testamentary power. He said that if a testator "does attempt such a delegation the will fails for uncertainty". He then declared that:

"The provisions of cl. 6 of the said will do not create a valid disposition."

"The testatrix died intestate as to the whole of her estate excepting only that portion of the said estate comprising the specific legacies and bequests ...."

In this Court counsel for the respondent next of kin, in supporting these declarations, said they mean that cl. 6 of the will was void; that the trustee has no power to devote any part of the estate to the charitable purpose mentioned; that the whole of the residue must go at once to the next of kin. As will appear, I cannot accept that as correct on any basis.

The main question is whether the clause creates a mere power enabling the trustee, in its absolute discretion either to apply residuary property to the charitable purpose stated or to refrain from doing so, or whether, on the other hand, the testatrix gave to her trustee both commandment and power. In the one case the next of kin would have an interest in the residue, which however would be subject to the trustee not exercising its power in favour of the charity. In the other case the next of kin would be excluded; and the trustee would have a duty to devote the property to the charitable purpose stipulated, with a discretion only as to the times and the manner in which it would perform this duty. The question is one of the construction of the clause. That a provision must be construed to ascertain its meaning-and that its proper construction is debatable-does not mean that it has no certain meaning and is to be discarded for uncertainty.

I shall come later to the question I have propounded as the main question, namely whether upon its true construction the clause is purely facultative or is imperative and facultative. I want first to say that what I do not understand is why it should be said that, if the correct reading is that the trustee has a mere power, it cannot now lawfully do what the testatrix expressly empowered it to do. To say that an express discretionary power to dispose of property for a specified charitable purpose means that the property cannot be so disposed of by the donee of the power, but must go to the next of kin, seems to me to defy the language. The result would be to remove all discretion from the trustee, and to frustrate altogether the charitable desire of the testatrix. Assuming that cl. 6 be read as conferring a bare power of disposition, not coupled with any trust or enforceable duty in favour of the designated charity, nevertheless, as I see the matter, the trustee could still lawfully allow the claims of charity to prevail. A discretionary power, given to a trustee as such, to act or not to act in a specified manner imposes a duty on the trustee at least to consider the matter and to decide deliberately whether or not to exercise the power. Lord Reid recently said, in In re Gulbenkian's Settlements, ^[F42] at p. 518: "A settlor or testator who entrusts a power to his trustees must be relying on them in their fiduciary capacity so they cannot simply push aside the power and refuse to consider whether it ought in their judgment to be exercised." If it is a mere power, the court cannot dictate to trustees whether it should be exercised, or not exercised. That discretion is committed to them. But, even in that case, the court is not entirely unconcerned; for if trustees having a purely discretionary power refuse to consider whether and how they will exercise their discretion, then the court will remove them and substitute new trustees-who will have the same discretion but who, it is hoped, will not be recalcitrant. That would not be a usurpation by the court of the discretion given to trustees. It would be merely a means of accomplishing its exercise one way or the other by dutiful trustees: Inland Revenue Commissioners v Broadway Cottages Trust, ^[F43] at p. 35.

The court can also control the exercise by trustees of a discretionary power, by ensuring that their discretion is exercised bona fide, having regard to the purpose for which it was given. Thus an exercise of a power of appointment in a way designed to achieve some ulterior end, foreign to the real purpose and object of a power, is a fraud on the power and invalid: Vatcher v Paull; ^[F44] and see In re Burton's Settlements; Scott v National Provincial Bank Ltd. ^[F45] It seems to me that this general principle must also be applicable where, as here, there is a power to apply property in furtherance of a particular charitable purpose. The trustee would not, I think, be justified in refusing to exercise its power in favour of the designated object and purpose with a view only to thereby benefiting the next of kin, who would take in default of the exercise of the power. Even if the power be a bare power with an absolute discretion to exercise it or not, still the only declared object is the charitable purpose, and this the trustee would have to consider. McTiernan and Menzies JJ. have said that the testatrix left the fulfilment of her wish to the discretion of her trustee. Assume that to be so. Surely it does not mean that the trustee cannot fulfil her wish. The clause in terms gives it full power and discretion to do so. As I have said, I cannot accept the proposition on which the judgment of the Supreme Court is founded, namely that the clause fails entirely.

I do not question the rule that a person cannot by his will delegate to another person the choice of those who are to take his estate. However, it is a rule the strictness of which must be accommodated to, and qualified by, the well-established power of a testator of giving a dispositive power of appointment to, or among, specified objects of his bounty. The logical dilemma thus arising was strikingly brought to notice in 1953 in the article "Delegation of Will-Making Power" in the Law Quarterly Review, vol. 69, p. 334. But we must decide the question according to established doctrine, rather than by purely abstract reasoning. This case is not like one in which a testator gives, to someone who cannot himself take beneficially, a power to dispose of the estate, or of some specified part of it, as he, the purported donee of the power, wishes. Provisions of that sort fail. They have sometimes been said to fail for lack of certainty-see e.g. Yeap Cheah Neo v Ong Cheng Neo ^[F46] - although the meaning of the words used seemed certain enough. Whatever be the explanation of invalidity in cases of that sort, the trustee in this case is not given a power to select whomsoever it wishes to enjoy the testator's estate. It is given a circumscribed power to transfer property for a particular charitable purpose. There is only one expressed object in favour of which the power is exercisable: and there is no gift over in default of its exercise. Counsel for the next of kin seized on the absence of a gift over as indicative that the power is invalid. But I do not see how that can be so. If the power be a bare power then, if it is not exercised, the next of kin will take. That I do not question. Whether it should be said that they are entitled subject to the exercise of the power, or that they take an interest defeasible upon its exercise, matters not. The latter is now the accepted manner of stating the interest of persons who are entitled under a gift over: see English cases cited in Halsbury's Laws of England, 3rd ed., vol. 30, p. 240. For a power of appointment to be valid there must be someone who satisfies the description of an object of the power. But a power to apply property to a specified charity, or to select among charities generally, can never in itself fail for uncertainty: Smith v West Australian Trustee Executor & Agency Co Ltd. ^[F47]

The validity of a power of disposition given by will is not in my view to depend upon whether the will says expressly that if the power be not exercised the subject property is to go to the testator's next of kin or simply leaves this as an inevitable consequence of law. The result in the present case seems to me to be-always on the assumption that the power is a bare power-that if the trustee should decide to exercise the power-as it may well decide that, without any legal compulsion, it has a moral obligation to do-then it will hold the property upon the trust for charity. If, however, it, for some valid reason, declines to exercise the power, then-again always on the assumption that it is a bare power-it will hold the property upon trust for the next of kin. In saying that I follow what Lord Upjohn, then Upjohn J., said in In re Sayer; MacGregor v Sayer, ^[F48] at p. 437.

I fail to see that the power, regarded as a bare power, can be said to be invalid simply because of the absence of a gift over. The reasoning in the judgment I have just cited disposes of that. It is I think now too late for a court to declare a power in the nature of a power of appointment invalid as an attempted delegation of testamentary capacity. There is too much strong authority to the contrary. As long ago as 1894 Stirling J. treated it as axiomatic that a testator could effectually make gifts dependent upon the discretion of his trustee: In re Johnston; Mills v Johnston, ^[F49] at p. 208.

No question was raised, nor do I think that any question could be raised in this case, of the rule against perpetuities. That can be a troublesome topic when, as here, the donee of a power of appointment is a body corporate, not a living individual, so that the will does not expressly limit the exercise of the power to the perpetuity period. However, the power here is exercisable in favour of charity, and there is, I think, an implication that if it be exercised at all it is to be exercised by the executor within a reasonable time from the death of the testatrix-a time which must be less than twenty-one years. Therefore the rule cannot be offended: Gray on Perpetuities, 2nd ed. (1906), p. 379.

The trustee is still in possession of the subject property. It could still exercise the power. But it has been held by the Supreme Court that it must not do so: that it has no discretion in the matter: that the subject property belongs beneficially to the testatrix's next of kin. That, with all respect to those who think so, seems to me to be erroneous. If the power be a bare power not coupled with any trust, I still cannot see why the trustee should be prohibited from doing what the testatrix expressly empowered it to do. To say that it, as executor, holds the residuary estate for the next of kin, and that if it does what the testatrix expressly empowered it to do, it will commit a breach of trust is to my mind a frustration of the will of the testatrix. I cannot read the words "discretionary power" as effectually removing all power and discretion from the trustee.

What I have said so far is on the assumption that the power is a mere power. On that basis I would, for the reasons I have given, allow the appeal. But I go further now to ask: Is there a mere power, or is there not a trust power, exercisable as ancillary to an implied trust for charity? I quote here from the judgment of Lord Upjohn in a recent case, in the House of Lords, In re Gulbenkian's Settlements; Whishaw v Stephens, ^[F50] at p. 525:

"Again the basic difference between a mere power and a trust power is that in the first case trustees owe no duty to exercise it and the relevant fund or income falls to be dealt with in accordance with the trusts in default of its exercise, whereas in the second case the trustees must exercise the power and in default the court will. It is briefly summarized in Halsbury's Laws of England, 3rd ed., vol. 30, p. 241, par. 445:

`... the court will not ... compel trustees to exercise a purely discretionary power given to them; but ... will restrain the trustees from exercising the power improperly, and if it is coupled with a duty ... can compel the trustees to perform their duty.'

It is a matter of construction whether the power is a mere power or a trust power and the use of inappropriate language is not decisive."

I have come to the conclusion that, although the language may not be entirely appropriate, the testatrix intended that her residuary estate should be devoted to the charitable purpose she stated, and that to that end she empowered her trustee to make it over to the Mission if it were prepared to fulfil her object.

The expression "a discretionary power" is common in legal writings. It appears frequently in textbooks; and it has often been used by judges, at least since, if not before, Lord Blackburn did so in Chambers v Smith, ^[F51] at p. 815. But it is not a technical term. A power may be called discretionary because the donee has an option whether to exercise it or not. Equally well, however, a power can be called discretionary when the donee has a duty to exercise it, but cannot be directed as to the manner in which he is to do so. The latter situation can occur when trustees have an unfettered discretion to select among the objects of a power or to determine in favour of an object to what extent and in what way they will exercise the power. Gisborne v Gisborne ^[F52] is the classic example of a discretion of the latter kind. I am not convinced that the words "discretionary power" in this will merely confer upon the trustee power to do, or not to do, what the testatrix authorized. The words must be read in their context. I do not read them as meaning that the testatrix wished the trustee to decide whether or not it would make over her residuary estate to the charitable purpose she nominated. If a testator's will were to conclude simply, "I empower my trustee to transfer all the residue of my estate to X" (a person or a charity), I would think that, unless the context otherwise required, that would create a trust of the residue for X. The words would be enabling; but behind them would lie a duty. I am not persuaded that the addition in this case of the adjective "discretionary" to the facultative word "power" destroys the duty. The will, read as a whole, reflects I consider a wish that the power be exercised. The absence of any gift over in default of the exercise of the power strengthens this. The presence of a gift over would prevent a gift by implication to the object of the power. The absence of a gift over in this case is to my mind a strong indication that the testatrix meant the charity to be the object of her bounty. There is, I think, sufficient scope for the adjective "discretionary" if it be read as referring to the time and manner in which the power should be exercised, not as to whether or not it should be exercised. It imports indirectly a discretion to decide which assets should be realized to enable "all expenses" to be paid and legacies provided and which would remain capable of being transferred in specie to the charity. Secondly, it enables the trustee to transfer assets, at its discretion, as and when required for the building of homes. So regarded, the express discretionary power is in aid of an implied trust: cf. Tempest v Lord Camoys ^[F53] and comments in In re Bryant; Bryant v Hickley, ^[F54] at pp. 330-331.

An analogy, not complete but nevertheless instructive, is to be found in what are often called "powers in the nature of trusts". These have usually arisen when a special power of appointment among a class of objects has been given without any express provision for a default of appointment and the donee of the power has died without exercising it. In such cases the non-exercise of the power of appointment and selection among the nominated class of objects does not necessarily prevent them benefiting. The court will construe the power as in the nature of a trust and the possible beneficiaries will be held entitled to the subject property in equal shares. This is a topic on which there has been a great difference of learned opinion. Is there an inflexible rule that the absence of a gift over suffices for the implication of a trust? Or is some further evidence of intention necessary? The question was alluded to and the conflicting opinions were cited by Dixon J. in Perpetual Trustee Company (Ltd ) v Tindal, ^[F55] at pp. 261-262. His Honour said that "in the result textbooks generally seem to place the question upon a search for intention without formulating a clear and definite presumption or rule of construction". I add to the references there given the later discussion of the question by Harman J. in In re Perowne, decd.; Perowne v Moss ^[F56] and the article "Powers" in Halsbury's Laws of England, 3rd ed., vol. 30, at pp. 210-211. The leading textbooks on wills, powers and trusts generally suggest that the doctrine of powers in the nature of trusts had its genesis in the decisions in Harding v Glyn; ^[F57] Brown v Higgs, ^[F58] and Burrough v Philcox. ^[F59] Cases since then have been numerous. Whether or not the rule can be extended from a special power of appointment among a class of objects to a special power to appoint to a single nominated object may, I realize, be questionable. However, in the present case I think that an overriding intention to benefit the charity is plain, and that suffices. If the rule of construction, so often applied in relation to powers of appointment, be thought directly applicable, it merely strengthens what I think is sufficiently manifest. It seems apposite to quote one passage from the judgment of Lord Eldon in Brown v Higgs, ^[F60] at p. 478]:

"The principle ... is, that, if the power is a power, which it is the duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it, he is a trustee for the exercise of the power, and not as having a discretion, whether he will exercise it, or not; and the court adopts the principle as to trusts; and will not permit his negligence, accident, or other circumstances, to disappoint the interests of those, for whose benefit he is called upon to execute it."

In my opinion the testatrix by her will created by implication a charitable trust and gave an express authority to enable its performance.

I sum up my views as follows:

(a)

Clause 6 is not uncertain or invalid. It is a question of construction whether it creates a bare power or a trust power.

(b)

In my opinion the effect of the clause, read with the rest of the will, is that, after the expenses, including duties, have been paid and legacies satisfied, the residue of the estate is held by the trustee upon trust for the charitable purposes stated.

(c)

If this view be wrong and there is no trust for the charity, merely a power in the trustee to devote the property to this purpose if in its discretion it thinks fit so to do, then that power is still exercisable by the trustee; and it would commit a "fraud on the power" if, for some reason foreign to the object and purpose of the power, it failed to exercise it.

I would allow the appeal and cross-appeal to the extent I have indicated, and substitute different declarations for those that the Supreme Court made.