Diocesan Trustees of the Church of England in Western Australia v Solicitor-General, Home of Peace for the Dying and Incurable

9 CLR 757
1909 - 1026A - HCA

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(Judgment by: O'Connor J)

Between: Diocesan Trustees of the Church of England in Western Australia
And: Solicitor-General, Home of Peace for the Dying and Incurable

Court:

Judges: Griffith CJ
Barton J

O'Connor J

Subject References:
Succession
Wills
Construction
Trustees
Provision for lunatic asylums and poor houses

Hearing date: 19 October 1909; 20 October 1909
Judgment date: 26 October 1909

PERTH

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Judgment by:
O'Connor J

Both these cases involve the interpretation of the same portion of the will and the application of the same principles of construction. It will therefore be convenient to deal with them together. The bequests occur in the following passage:

"And that the whole of such balance shall be divided into three equal parts one of which shall be paid or transferred to the said diocesan trustees of the Church of England in Western Australia a second to the trustees for the time being of the hospitals and lunatic asylums in the said Colony to be divided among them equally and the third to the trustees of the poor houses in the said Colony."

In Padbury's Case ^[F11] this Court considered the meaning of the expression "hospitals in the said Colony." In the present appeals the expressions "the lunatic asylums in the said Colony," and "the Poor Houses in the said Colony," are to be interpreted. It is claimed by the appellants in both cases that the decision in Padbury's Case ^[F12] is a conclusive authority in their favour. In my opinion it cannot be so regarded. In that case the question raised was whether all Government hospitals came within the gift to "hospitals." It appeared that there were three classes of Government hospitals, in two of which the management was vested in bodies or individuals who might be fairly said to come within the description "trustees." The third class was proved to be entirely under Government management and control. As to them, this Court held that an essential portion of the testator's description of the subject of his bounty was inapplicable, inasmuch as they were not managed by trustees, and that they could not therefore come within the class of hospitals which the testator had expressed an intention to benefit. The ground of the decision may be stated in a few words. The object of the testator's bounty was hospitals, not all hospitals, but such only as were managed by trustees. To those which had no trustees the testator's gift did not apply. To those which had it did apply. Full effect was thus given to every word in the will. The gift by no means failed, but the number of hospitals amongst which it was distributed became lessened by shutting out the class of hospitals to which the testator's description in its entirety was inapplicable. Beyond that the decision did not go, and each member of the Court expressly limited the operation of his judgment to the question in that case submitted for determination. In illustration of the position which the Court took up, reference was made to the bequests for lunatic asylums.

In the portion of my judgment dealing with that topic, expressions were used which are, I think, fairly open to the interpretation which the appellants in these cases have placed upon them in their favour. However that may be, those observations were not necessary for the decision of the question then before the Court, and I should feel myself in no way bound by them if counsels' argument in the cases now under consideration should lead me to modify the views so expressed.

Turning now to the questions raised in the present appeals, I shall take them in the order in which they arise in the will. It is contended that lunatic asylums cannot be allowed to share in the bequest because they are not managed by trustees. The bequest, it is said, is not to all lunatic asylums, but to those only which have trustees to whom the gift may be handed over. Giving to the words which the testator has used their ordinary meaning, I cannot see any reason to doubt that he intended Government lunatic asylums to be the objects of his bounty. In Western Australia the sole care and control of lunatic asylums is by Statute vested in the Government. At the time when the will was executed it was impossible under the law that there could be in Western Australia any lunatic asylum other than those under the absolute control of Government. It must have been notorious, also, that the only lunatic asylum existing in the State was the Government lunatic asylum at Fremantle. There seems to be no ground for assuming that the testator was ignorant of that fact or of the law which vested in the Government exclusive control. Under these circumstances I find it impossible to avoid the conclusion that the testator in using apt words to describe Government asylums intended that the Government asylum or asylums, if there were more than one existing at the time of his death, should share in his bounty to the extent indicated. Having thus plainly expressed that intention, he unfortunately directed that the gift so conferred should be paid to the trustees of the lunatic asylums, and it is now urged that, because there is not and cannot be in this State any lunatic asylum governed by trustees, the gift must fail altogether. If that view is to be taken, it follows that the words of the will must have been from the time of its execution meaningless and of no effect. For there was not then, nor could there be, any lunatic asylum in Western Australia answering in every particular to the testator's description.

But the Court will never allow the plain intention of a testator to benefit so well defined an object of his charity to be defeated by misdescription of that kind. The rule of construction to be followed in such circumstances has long been settled and is well illustrated in the authorities referred to by my learned brother the Chief Justice in dealing with this part of the case. Once the object of the testator's bounty is ascertained, the Court will treat as falsa demonstratio and so disregard any words of description which he may have mistakenly applied to it. Where the object is charitable, the Court will see to it that his object is not defeated for want of trustees to carry it out. Giving fair effect to the language of the will, it is in my opinion plain that the testator intended to benefit the inmates of Government lunatic asylums. It is clear also that he intended his bounty to be administered by trustees who would be subject to control by the Court in the discharge of their trust. It is apparent now that this last named intention cannot be carried out in accordance with the testator's expressed direction because the Government cannot be made trustees subject to the control of the Court. But the Court can, and will in exercise of its charity jurisdiction, appoint trustees to administer the charitable gift under its control in such method as will be best fitted to give effect to the testator's expressed intention. I am therefore of opinion that the Government lunatic asylum has the right to share equally with each of the hospitals entitled in the fund allotted for their joint benefit, and that the Court should so declare. Further, I agree that trustees should be appointed and a scheme settled for the administration of the trust.

Coming now to the question of poor houses, the appellants contend that the will cannot be interpreted as applying to the Government poor houses. The objection rests on the same reasoning as that relied on in the case of the lunatic asylum, and must be answered in the same way. The expression "poor house" has in England acquired a well known meaning in the administration of the Poor Laws. It is a house where the poor are maintained at the public expense, as distinguished from an Alms House, which is defined as a place in which poor persons are supported by private charity. The English meaning of the expression "poor house" has evidently been adopted and recognized by the Western Australian legislature in the Poorhouses Discipline Act 1882. That Statute applies the expression to institutions maintained at the public expense for the relief of the poor. It appears from the affidavits that there were at the time when the will was drawn, and there are now, two institutions in this State for the relief of the poor, maintained wholly at the public expense and known as poor houses. Under these circumstances it is I think beyond question that those institutions are indicated by the testator as the objects of his bounty. In calling them poor houses he has used exact and appropriate language to describe them. As in the case of a lunatic asylum that plain intention cannot be defeated because the testator has in regard to them also mistakenly directed the payment of his bounty to trustees who have no existence. For the reasons which I have stated at length in the case of the lunatic asylums I am of opinion that a similar declaration of right should be made in favour of the poor houses, and that the same directions should be given as to the appointment of trustees and the settlement of a scheme. In both cases I think the formulation of a scheme is required. Public lunatic asylums and poor houses cannot be expected to supply from public moneys much beyond reasonably comfortable maintenance and medical care. But there are many ways in which private charity sympathetically and wisely administered may render the daily lives of both classes of inmates brighter and happier than they can be under the ordinary routine of Government administration. Some such object was no doubt in the testator's mind, and I see no reason why it should not be successfully accomplished under a well thought out scheme settled under the direction of the Supreme Court. For these and other purposes incidental to the order of this Court it will be necessary to refer the case back to the Supreme Court. I may add that I have had the advantage of reading the judgment of my learned brother the Chief Justice. I entirely concur in what he has said, and I agree as to the forms of declaration and order which he has mentioned, and as to the orders and directions with reference to costs and other matters which he has indicated.