Stratton v Simpson
125 CLR 138[1970] HCA 45
[1971] ALR 117
44 ALJR 487
(Judgment by: WALSH J)
Between: STRATTON
And: SIMPSON
Judges:
Barwick CJ
Menzies J
Windeyer J
Walsh JGibbs J
Subject References:
Trusts
Charitable
Indefinite and uncertain objects
Validity
Legislative References:
Trustees Act 1962 (WA) - s 102
Judgment date: 12 November 1970
Sydney
Judgment by:
WALSH J
I have had the advantage of reading the reasons for judgment prepared by Gibbs J. I agree with his conclusion that Lavan J. [F35] was right in dismissing the application made in the Supreme Court of Western Australia for a declaration that the residuary bequest contained in cl. 15 of the will of John Peter Stratton deceased is void and that there is an intestacy as to the residuary estate. Subject to a reservation to be stated presently I agree with the reasons of Gibbs J.
At the hearing of this appeal several questions were mentioned which may perhaps arise for consideration by the trustees in the actual selection by them of beneficiaries to whom the trust income is to be paid. These questions are not before the Court in these proceedings. It may be that upon further investigation of the relevant facts, it will appear that all the "institutions and bodies" which at the time of the testator's death answered the description contained in cl. 15 of the will were charitable in the legal sense. But it may be that some of them had charitable objects and also had non-charitable objects which were not ancillary to the charitable objects, so that a trust in favour of them would not be a valid charitable trust, apart from the operation of s. 102 of the Trustees Act, 1962 (W.A.). If institutions of the latter class should be found to exist and if the trustees should be disposed to distribute some of the income to them it would then have to be decided whether or not the proper application of s. 102 required that those institutions ought to be excluded altogether and the distribution confined to other institutions whose objects were exclusively charitable or ancillary to charitable objects. It may be that this would not be required and that a distribution of income might properly be made to an institution with "mixed" objects, subject to conditions imposed by the trustees for the purpose of confining the use of that income to the charitable objects of the institution. These are questions which must be left to be worked out by the trustees and to be determined, if necessary, by means of an appropriate application to the Supreme Court. They do not go to the validity of the disposition of the residuary estate and, therefore, they do not affect the decision of this appeal.
Another question, which may or may not arise for the consideration of the trustees and possibly for resolution by the Court, is the question whether any part of the income may be applied for "the maintenance of a free ward in any hospital". Gibbs J. has expressed the opinion that cl. 15 of the will should be so construed that the distribution of any of the income specifically for that purpose is excluded, that is to say, he is of opinion that the trust is confined to the "institutions and bodies" described in pars. (c), (d), (e) or (f) of s. 134 (1) of the Administration Act, 1903-1965 (W.A.), to the exclusion of par. (b) thereof. I do not think that it is clear beyond dispute that this is so and I prefer to express no opinion on the point. The word "institutions" is flexible in its meaning and has to be considered in its context. (See Minister of National Revenue v Trusts and Guarantee Co Ltd [F36] .) I think it is a possible view that if a fund had been established for the maintenance of a free ward in a hospital a gift to or in trust for that fund might be described as a gift to an "institution". The question whether or not that would be a proper description might depend upon the manner in which and the terms upon which the fund had been established. In referring in cl. 15 to "institutions and bodies" and also to "the said Institutions" the testator has not been precise in his use of language. I am not sure that it can be asserted confidently that simply as a matter of construction of the will the trustees must necessarily exclude from consideration par. (b) of s. 134 (1). The question may not ever arise. If a part of the income should be devoted to the maintenance of a free ward in a hospital, that would be an application of it for a charitable purpose. Therefore the possibility that it may be open to the trustees so to apply some of the income cannot have the effect of invalidating the gift. I think it is better to leave that possibility open.
In my opinion the appeal should be dismissed.