Barby v Perpetual Trustee Co Ltd
[1937] HCA 64(Decision by: Dixon J)
Barby
vPerpetual Trustee Co Ltd
Judges:
Latham CJ
Rich J
Starke J
Dixon JEvatt J
Case References:
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Judgment date: 25 November 1937
Decision by:
Dixon J
I agree. It has been determined that the gift is charitable, and from that there is no appeal. But the question whether a general charitable intention appears cannot be considered independently of the reasons why the gift is charitable. It is of a kind falling within the fourth of the classes of objects stated by Sir Samuel Romilly in the course of his argument in Morice v. Bishop of Durham [ [10] ] and adopted by Lord Macnaghten in Pemsel's Case [ [11] ]. Sir Samuel Romilly describes the class as being for the advancement of objects of general public utility and says it is the most difficult. In this now familiar classification of charitable gifts, the fourth class, as has often been pointed out, does not attempt to define a charitable object. It is no more than a final class into which various objects fall that are not comprised in the first three classes, but are nevertheless charitable. It has been found impossible to give an exhaustive definition of what amounts to a charitable purpose, but the authorities indicate the attributes that are to be looked for. The gift must proceed from altruistic motives or from benevolent or philanthropic motives. It must be directed to purposes that are for the benefit of the community or a considerable section or class of the community. The purposes must tend to the improvement of society from some point of view which may reasonably be adopted by the donor. The manner in which this tendency may be manifested is not defined by any closed category. It is capable of great, if not infinite, variation. It may be by the relief of misfortune; by raising moral standards or outlook; by arousing intellectual or aesthetic interests; by general or special education; by promoting religion; or by aiming at some other betterment of the community. The purposes must be lawful and must be consonant with the received notions of morality and propriety.
In this particular case, the testatrix seems to me to have manifested a purpose of conferring a benefit upon returned soldiers by settling them upon the land. Apparently she combined two ideas. One was the desirability of settling people on the unoccupied lands of New South Wales. The other was the relief of returned soldiers from positions of insecurity or of insufficient income which they might occupy in the community. That is, I think, a charitable purpose; but the question is whether it is the dominant idea to which the particular directions she proceeds to give are subordinate and whether it has sufficient generality to amount to a general charitable purpose.
The will is expressed in a form which, although containing a general statement at the commencement of the provision, qualifies the gift by conditions in such a way that, for myself, I find some difficulty in extracting from the language, as a matter of verbal interpretation, any indication of an intention which is separable from the particular form in which she directs that her purpose shall be carried into execution. But that is considering the matter merely as one of verbal construction. In cases of this description the mode of interpretation differs widely from that required where gifts to individuals are concerned. In the case of a gift to an individual, the identity of the object of the gift, the identity of the subject matter and the conditions or contingencies upon which the gift is made, all go to the substance of the donation. In cases of charity, the subject matter given being ascertained, the identity of the donees and the conditions expressed are not considered as necessarily going to substance. The substance is the purpose. If you find in the matter of the gift and its general nature sufficient evidence of the existence of a purpose wider than the execution of the exact directions set out and that wider purpose is charitable, then I think the gift must be upheld. In In re Monk [ [12] ] Sargant L.J. points out that prefatory or separate words of charity are seldom found in the reported cases where a general charitable intention has been found, but, he says, the intention may be found from the nature of the dispositions themselves. I think that is the source whence, for the most part, courts of equity have discovered a general charitable intention manifested by a testator. But it is necessary that, from the nature of the purpose expressed and from the character of the directions given, it shall appear by reasonable inference that the precise directions given amount to no more than the manner chosen by the testator for carrying into practical effect the purpose by which they are animated and do not constitute or describe the full or exclusive aim he sought to achieve. Further, the main purpose thus discoverable must in itself be of such a nature that the court would carry it into effect, if no more had been expressed, as showing a general charitable intent. If these conditions are satisfied, the failure of the testator's detailed scheme leaves a trust which must be effectuated by the court as a matter of administration.
In this particular case I am not prepared to say that the intention of the testatrix amounted to a very wide charitable purpose, but I think she possessed a paramount intention which the impracticable detailed provisions were devised to carry out. They represent only a means to an end, one means and not the end itself. Implicit is a broader purpose charitable in character and it should prevail. That purpose governs the entire scheme, including the ultimate transfer of the pieces of land to the occupiers for the time being. The direction to make the ultimate transfers is not, in my opinion, a gift to individuals. It is no more than a direction for effectuating the original purpose in favour of a section of the public.
I agree with the amendment suggested by the Chief Justice to be made in the decree.