Diocesan Trustees of the Church of England in Western Australia v Solicitor-General, Home of Peace for the Dying and Incurable
9 CLR 7571909 - 1026A - HCA
(Decision by: Barton J)
Between: Diocesan Trustees of the Church of England in Western Australia
And: Solicitor-General, Home of Peace for the Dying and Incurable
Judges:
Griffith CJ
Barton JO'Connor J
Subject References:
Succession
Wills
Construction
Trustees
Provision for lunatic asylums and poor houses
Judgment date: 26 October 1909
PERTH
Decision by:
Barton J
I agree in the conclusions just expressed, for I cannot see my way to arrive at any other result. Our judgment in the first appeal under this will [F7] was that under the second of the three branches of the residuary bequest those of the hospitals which had trustees either eo nomine, or in substance in the shape of committees or other governing bodies, entrusted with the funds subscribed, were the intended recipients of that part of the testator's bounty. That was a construction under which it was not necessary to reject any word of the gift. But in the case of the lunatic asylum now in debate, the question is whether the gift fails entirely by reason of the word "trustees," there being, as the testator must be taken to have known, only one lunatic asylum, and that without trustees, being the Government institution of that name. Under the Act there could not be any other than Government asylums. The case is very different from that of the hospitals, and I agree that to avoid frustrating the intention of the testator, so far as it can be gathered from his words, we must hold the gift applicable to the lunatic asylum pari passu with the hospitals that take, rejecting the word "trustees" in this case as mere falsa demonstratio.
In the case of the poor houses, the difficulty is practically the same, because it is not possible in reason to bring the orphanages, whose claim Mr. Draper has asserted, within that term. No definition can be found which does not place poor houses among public, as distinguished from private, charities, and when Mr. Padbury made his will, the term "Poor House" was known in this State as applicable to institutions for the relief of the poor, wholly maintained at the public expense. These institutions had been provided for by Statute, as we must take the testator to have known, and indeed, there were two of them when he died. On the other hand, there is nothing to show that the word had ever acquired in Western Australia a meaning which would include the two orphanages. The term "Poor Houses" as used in Western Australia, whether at the date of the will, or at the death of the testator, was in my judgment not applicable to those two private charities, and was, so far as our knowledge extends, applicable only to the two Government institutions. The question therefore arises in this case, equally with that of the lunatic asylum, whether the gift must fail or whether effect cannot be given to the testator's intention by rejecting the word "trustees" as falsa demonstratio, there being no other ascertainable object of the third branch of the residuary bequest than the two poor houses. I have come to the conclusion that this construction must be adopted, and the rules laid down by Erle C.J. in Webber v Stanley, [F8] and adverted to by Willes J., citing that case, in Smith v Ridgway, [F9] are in my opinion applicable to these cases, and also to that which we decided in relation to the hospitals. [F10]
As the Chief Justice has pointed out, it is not necessary that the moneys which will thus come to the lunatic asylum and the poor houses should go to swell the Government revenue. If that were so, different considerations might arise as to the intention of the testator. Under the order proposed, in which I agree, these trusts will not be allowed to fail for want of a trustee, and the bequest, so far as it relates to the institutions now held to be benefited, will be dispensed under a scheme to be settled by the Supreme Court, under which care will be taken that the moneys will be used for the benefit of the inmates, and not for the ease of the Government in its expenditure. I agree also as to the costs.