Re Inman, deceased

[1965] VR 238

(Judgment by: Gowans J)

Re Inman, deceased

Court:
Supreme Court of Victoria

Judge:
Gowans J

Subject References:
Will
Charitable gift
Failure of one of a number of charitable gifts
Lapsed gift to next of kin, not remaining charities
Annual income in perpetuity to named charities
Corpus
Charitable object
Royal Victorian Institute for the Blind
Royal Society for the Prevention of Cruelty to Animals
Anti-Vivisection Society

Legislative References:
Hospital and Charities Act 1958 (No. 6274) - s 48
Property Law Act 1958 (No. 6344) - s 131

Hearing date: 24, 25, 27, 30 September, 4, 21, 29 October 1963
Judgment date: 21 November 1963

Judgment by:
Gowans J

The testator, Frederick Inman, carried on the business of a soap manufacturer at 184 Hall Street, Spotswood, under the name of "GW Beal and Company". There was a residence on portion of the land on which the factory was situated, and in those premises he lived, together with Frank Taylor and Violet Taylor, the first-and second-named defendants. These two were employees of his in the business and they continued to be so up to the date of his death. The only other employee was one Frank Scheumack, the third-named defendant, who according to the wages records produced, was employed as sales organizer up to and during the year ending June 1960, and thereafter as sales adviser.

The testator made a will dated 8 February 1961, and a codicil thereto dated 3 November 1961. The plaintiff, the Perpetual Executors and Trustees Association of Australia Ltd., was appointed his sole executor and trustee. He died on 24 October 1962.

[His Honour then dealt with matters not material to this report and continued:--] It is now necessary to turn to the provisions of CL8. It reads as follows--

"8.
I give devise and bequeath unto my Trustee all my real and personal estate whatsoever and wheresoever situate as is not the subject- matter of any of the hereinbefore recited gifts and/or bequests and/or devises and/or trusts of this my will save and except such thereof as shall fail to vest (which said real and personal estate as so limited shall constitute and be my residuary estate) upon trust after and/or subject to the payment thereout of my funeral expenses and the duties (State and/or Federal) payable on the proving of this my will and all my just debts (if any) to sell call in and convert into money all such parts thereof as shall not consist of money and to hold the net money thereby arising together with such of my residuary estate as consists of money at my death (all of which monies and/or the investments fro the time being representing the same or any part thereof shall be known as and constitute 'The Frederick Inman Trust') Upon Trust in perpetuity to divide the net annual income arising therefrom into ten equal parts and to pay and/or apply such parts in manner hereinafter appearing:"

The introductory words take in all of the estate that is not the subject-matter of prior gifts, bequests, devises or trusts; but they except from those gifts, etc., those that fail to vest. Thus they take in all but vested gifts, with the result that the only subject-matter that is not included in the residuary estate is the property comprised in gifts, etc., that have vested. In the view that I have taken none of the prior gifts, bequests, devises and trusts failed to vest. But it will be necessary to take note at a later stage of an argument presented on behalf of the next of kin which is founded on one provision as to a prior gift and which is said to affect the validity of a later gift of part of the income of the residuary estate.

At this stage it is necessary to anticipate what follows in order to deal with a point that is common to the gifts that follow.

The 10 equal parts of income are to be paid or applied to and/or for four named bodies, two incorporated and two unincorporated body. In the case of the two incorporated bodies and one unincorporated body, to each of which one part is given, there is no addition prescribing any trust or condition. The point is whether the gift of a part of the income in perpetuity is to be treated as a gift of an aliquot part of the corpus in accordance with the principle discussed in Congregational Union of New South Wales v Thistlethwayte (1952) 87 CLR 375; [1952] ALR 729. The decision was that the rule applies to charities, and according to the judgment of the majority it is a rule which yields to an intention to the contrary, if there are sufficiently definite indications express or implied. I accept the view of Dean, J, in Re Williams, [1955] VLR 65; [1955] ALR 255, that one of the sources of such indications is the character of the institution or body to which the gift is made. Each of the bodies concerned is perpetual in form. But there are other indications in this will that it is not intended that part of the corpus is to be taken, without relying on the direction "to hold 'The Frederick Inman Trust' in perpetuity". The main one is that the gift in the case of each body lies in a division of "the net annual income arising therefrom". There is to be a taking of account of the income at annual intervals: see Re Weaver, [1963] VR 257. There are directions as to the form of investments. The receipt by the treasurer for the time being or any equivalent officer of the respective beneficiaries is "at all times" to be a full and sufficient discharge for any payments made. Whilst certain of the bodies named are in receipt of the income they are to collaborate with each other as concerns the application by them of their respective benefits in order to achieve application for diverse purposes and to avoid the establishment of duplicated services. In addition, the gift or part of the income to the last body, the Victorian Animal Aid Trust, is given on conditions which concern themselves with the receipt of income from time to time. All this indicates that it was not intended that any of the bodies should take any part of the corpus, but should take part of the income as it was divided annually.

One of the 10 parts of the income is to be paid and applied "to and/or for the Royal Institute for the Blind of 575 St. Kilda Road, Melbourne, aforesaid". The evidence is that there is no body of the name "Royal Institute for the Blind" incorporated in Victoria or registered under the Hospital and Charities Act 1958. But there is a body known as the "Royal Victorian Institute for the Blind" which is so incorporated and registered, and which is the fourth-named defendant. It, however, has its principal office at No. 557 St. Kilda Road, Melbourne, and there is no property known as No. 575.

I am satisfied that the reference in the will to "575" is an error and can be ignored, and the name "Royal Institute for the Blind" represents a case of falsa demonstratio, the name intended being "Royal Victorian Institute for the Blind", the description of the fourth-named defendant. This conclusion is justified on principle and is in accordance with the decisions in O' Callaghan v Swan (1887) 13 VLR 676, at p. 681, and Re Vosz, [1926] SASR 218, at p. 237.

The donee of the gift is an identifiable corporation. It is a corporation which owes its existence to its recognition by statute as an "institution" within the meaning of the Hospital and Charities Act 1958, and the incorporation of its contributors pursuant to s48 and the Second Schedule of that Act. There is no uncertainty as to the donee of the gift or as to its capacity. But it is in form a gift of income in perpetuity. To avoid the effect of the old rule against perpetuities, it must take effect as a gift for a charitable object. It is, therefore, necessary to consider whether the gift is one for a charitable object. In such a case as this, an inquiry is made into the objects of the corporate body which is the donee, on the assumption that the moneys paid to it will be applied to effect those objects. The explanation given for this by Herring, CJ, in Re Godfree, [1952] VLR 353, at p. 356, is as follows: "The charitable nature of the gift derives from the fact that the purposes and objects of the institution are themselves charitable, for it is presumed that a gift to such an institution without more is to be held for its general purposes and objects. The devotion to charity is effected by the institution itself applying the income each year as it is received to its purposes and objects. It is with an obligation so to apply the income each year that it receives it."

The explanation continues into a larger passage, some of which I will need to advert to hereafter. But so much as I have quoted was referred to by Dixon, CJ, in his judgment in Sydney Homoeopathic Hospital v Turner (1959) 102 CLR 188; [1959] ALR 782. The following extracts from that judgment further explain the position: "The primary direction is to pay over to the Sydney Homoeopathic Hospital one-third of the residue of the balance of income from the estate. If the Hospital had not been incorporated before the time arrived for carrying the direction out, the primary object of the trust to pay would have been an unincorporated body formed for a charitable purpose. The charitable purpose gave validity to an indefinite gift of income otherwise tending to perpetuity. But the charitable nature of the gift arose from the objects of the body." (Then follows the quotation from Re Godfree, supra.) "The foregoing statement is applicable to an unincorporated body as the Sydney Homoeopathic Hospital was. The rules under which such a body is organized sufficiently govern the application of the funds, it would seem, to justify the classification of a trust in its favour as charitable. The incorporation of the hospital... supplied a new legal person and provided a new system of government for the institution, but otherwise left the considerations very much the same upon which the right of the institution turns to the third part of the residue of the balance of income of the estate." The position was summarized in Congregational Union of NSW v Thistlethwayte, supra (87 CLR), at p. 442: "... a bequest to a religious institution is prima facie a bequest for a charitable purpose."

For the immediate purpose it is sufficient to inquire whether the Royal Victorian Institute for the Blind is a charitable institution when judged by its objects. A perusal of its objects makes it clear that they are directed to the relief of the blind, by providing nurseries for blind children, the education and training of youthful blind, the training and employment of blind adults, the provision of recreational and social facilities for all blind persons, and their housing and financial relief and aid, and related objects.

In my opinion, this is clearly a charitable institution whose object is the relief of a substantial class of the impotent, and the gift is charitable and valid: Re Bond, [1929] VLR 333; [1929] ALR 300; Re Vosz, supra; Re Lewis, [1955] CH 104; [1954] 3 All ER 257.

A further one-tenth part of the income is to be paid and/or applied "to and/or for the Royal Society for the Prevention of Cruelty to Animals, of Number 234 Swanston Street, Melbourne". This is the fifth-named defendant, also an incorporated body, under the Hospital and Charities Act. A perusal of its by-laws shows that "the objects of the Society are to prevent cruelty to animals, by enforcing where practicable the existing laws, by procuring such further legislation as may be thought expedient, by inciting and sustaining an intelligent public opinion regarding man's duty to the lower animals, by rendering relief to animals requiring the same and by doing all things incidental and conducive to the attainment of the foregoing objects".

The general object is, therefore, to prevent cruelty to animals. This dominates the statement of objects in the by-laws. None of the methods set out for the achievement of this object detracts from its character. It is true that one of those methods, viz. procuring such further legislation as may be thought expedient, if taken alone, would be a political object and nothing more. But it is only a method of achieving the main or fundamental object, the prevention of cruelty to animals. If an institution for the prevention of cruelty to animals is a charitable institution, it will not be the less a charitable institution because one of the means indicated for the achievement of its dominant purpose taken alone would not be charitable: Thistlethwayte's Case, supra (87 CLR), at pp. 441-3; Re Lloyd, [1958] VR 523, at pp. 525-6; [1958] ALR 1042.

The question is, therefore, whether an institution for the prevention of cruelty to animals is a charitable institution.

The object is not the benefit of animals; it is one directed at cruelty and its prevention, albeit in relation to animals. Such an object, because of its elevating influence on human sentiment and conduct, has been held to be charitable: Armstrong v Reeves (1890) 25 LR Ir 325; Re Cranston, [1898] 1 IR 431; Re Wedgwood, [1915] 1 CH 113, at p. 122; [1914-15] All ER Rep 322; Re Grove-Grady; Plowden v Lawrence, [1929] 1 CH 557, at p. 582; [1929] All ER Rep 158; National Anti-Vivisection Society v Inland Revenue Commissioners, [1948] AC 31 at p. 67; [1947] 2 All ER 217; Re Moss; Hobrough v Harvey, [1949] 1 All ER 495. In fact a society bearing the same name as the fifth-named defendant, the Royal Society for the Prevention of Cruelty to Animals, was held to be a charitable institution in Re Douglas (1887) 35 Ch D 472 (cited in Re Foveaux, [1895] 2 CH 501, at p. 506). The precise question did not call for decision in Royal Society for the Prevention of Cruelty to Animals (NSW) v Benevolent Society of NSW (1960) 102 CLR 629; [1960] ALR 223. But on accepted doctrine, and on such direct authority as there is, I am of the opinion that the proper conclusion is that the fifth-named defendant is a charitable institution. I therefore hold that the gift of one-tenth of the income to be paid or applied to or for the Royal Society for the Prevention of Cruelty to Animals is a valid gift.

A further one-tenth of the income of "The Frederick Inman Trust" is to be paid and/or applied "to and/or for the Anti-Vivisection Society of Number 129 Elizabeth Street Melbourne aforesaid".

The evidence is that there is an unincorporated association having its principal office at No. 129 Elizabeth Street, Melbourne, the proper name of which is "The Melbourne Branch of the British Union for Abolition of Vivisection". It is known as the Anti-Vivisection Society and the testator had been one of its members since its inception. There is no doubt that this is the body referred to in the will. Its president, William Bickford Carter, is sued in a representative capacity as the sixth-named defendant.

In spite of its name and the fact that it is affiliated with the British Union for the Abolition of Vivisection, it functions independently of the latter body which is a company limited by guarantee registered in England and not in Victoria. At all events it so functions, according to the affidavit of Mr. Carter, "in so far as the formulation of rules and advancement of the objects of the society are concerned". It has its own by-laws which set out its object, the methods to be used to attain the object, and regulations for the governance of its affairs. But though a distinct body, the link with the British Union appears from the by-laws of the Melbourne Society (as I shall call it), and from the fact of the adoption by the members of the latter body of the "Fundamental Rules of the British Union for the Abolition of Vivisection".

The by-laws of the Melbourne Society (so far as material) read as follow:--

"2.
The object of this Branch shall be that of the British Union as stated in R2 of the Constitution, viz.: To oppose Vivisection absolutely and entirely, and without attempt at compromise of any kind. THIS IS THE FUNDAMENTAL AIM AND OBJECT OF THE UNION AND SHALL NOT AT ANY FUTURE TIME BE MODIFIED OR DEPARTED FROM." [The capitals are in the original.]
"3.
The methods used to attain the abolition of vivisection shall be chiefly and primarily educative. They must spread knowledge of the crime of vivisection among the Australian people by means of literature on the subject, lectures, meetings for information and discussion, appeals to the State and the educational faculties, and to the ethical elements in society; and secondly, they shall be legislative, demanding the total prohibition by law of the practice."
"6.
The Branch shall consist of all persons approving of the object of the British Union, as stated in By-law 2, who pay an annual subscription of not less than two shillings or such sum as may at any time hereafter be fixed by the Executive Committee."
"12.
The Melbourne Branch shall at all times remain and be a non-political and non-sectarian society, and shall not permit its activities to be used for political, religious or racial propaganda."

The slight variations of expression in the object as stated in the memorandum of association and the "Fundamental Rules" of the British Union, and as stated in by-law 2, are not of sufficient significance to justify setting out separately the statement in the other documents mentioned.

There is a statement in the affidavit of Mr. Carter that the primary object of the Society is the alleviation of cruelty involved in the practice of vivisection, and a denial that it is the main object of the Society to secure an alteration of the law, and it contains other statements as to the beliefs of its members and its present activities. But I do not think I am entitled to use these personal statements to derogate from or add to the matter set out in the by-laws. Any moneys paid to the Melbourne Society unconditionally could be applied in accordance with the by-laws irrespective of Mr. Carter's interpretation of them.

As I read the above-mentioned matter contained in the by-laws, the Melbourne Society is an unincorporated association of persons, whose fundamental aim and object is to oppose vivisection and secure its abolition, and to do so by spreading knowledge of their views on the subject among the Australian public, and instruments of government and of education, and by demanding its prohibition by law. It is only subject to this, that its inhibition against its becoming a political society and permitting its activities being used for political propaganda is intended to operate.

Since this provision makes a gift in the nature of an endowment, to be held as an endowment, and the Society is, according to its form perpetual, the gift will be bad, as infringing the rule against perpetuities, unless the Society is a charitable institution or the gift is saved by statute: see Re Cain, [1950] VLR 382; [1950] ALR 796, and the cases cited therein. Whether it is a charitable institution or body must be judged by its object.

Its object read as a whole does not permit of the Society being characterized as one for the advancement of learning. If the Society is to fall within the description of a charitable institution or body, it must be because it exists for the advancement of an object of general public utility. "To get into that class it must be established that it is beneficial to the community": per Lord Wright in National Anti-Vivisection Society v Inland Revenue Commissioners, [1948] AC 31, at p. 49; [1947] 2 All ER 217. The provisions for the protection of animals in Division 2 of PtII of the Police Offences Act 1958 do not apply to vivisection performed upon any animal by a legally qualified medical practitioner or veterinary surgeon for the purposes of scientific investigation, in the absence of cruelty, or neglect to perform certain specified conditions (s65). Thus vivisection is not totally and absolutely prohibited by law.

I have no evidence before me, as Chitty, J, had before him in Re Foveaux, supra, in the Report of the Royal Commission on Vivisection, and the House of Lords had before it in National Anti-Vivisection Society v Inland Revenue Commissioners, supra, in the findings of the Special Commissioners, as to whether the vivisection of animals is beneficial to the community or otherwise. But I cannot ignore the sanction of s68 of the Police Offences Act, and its implied recognition of public benefit in the practice when directed to scientific investigation, even if I were entitled to shut my eyes (as I think I cannot) to the reflections in the speeches of the law lords that the practice in scientific research is beneficial to mankind. At least I have no countervailing evidence. Moreover, without further investigation, it is clear that it is a leading object of the Society to secure the abolition of vivisection by demanding its prohibition by law. To remove this means from the objective of the Society would be to eviscerate it. As Lord Simonds said, how else would abolition be achieved? Whether called political or not, this does not fall within any head of charity.

The Melbourne Branch of the British Union for the Abolition of Vivisection is therefore not a charitable institution or body, and the gift is not charitable.

But then there is called in aid an argument which depends upon the application of s131 of the Property Law Act 1958. The section reads:--

"131(1)
No trust shall be held to be invalid by reason that some non-charitable and invalid as well as some charitable purpose or purposes is or are or could be deemed to be included in any of the purposes to or for which an application of the trust funds or any part thereof is by such trust directed or allowed.
"(2)
Any such trust shall be construed and given effect to in the same manner in all respects as if no application of the trust funds or of any part thereof to or for any such non-charitable and invalid purpose had been or should be deemed to have been so directed or allowed."

Reliance is placed on the decision of Dean, J, in Re Lloyd, [1958] VR 523; [1958] ALR 1042, and the observations of Hudson, J, in Re Weaver, [1963] VR 267.

The argument depends upon finding a trust which directs or allows an application of the trust funds or any part thereof to or for purposes or a purpose--a purposive trust; then it is further required that it is a trust for a number of purposes and among such purposes, some charitable purpose or purposes is or are or could be deemed to be included, as well as some non-charitable and invalid purpose.

Is there then a trust which directs or allows an application of one of the 10 shares of the income of the Frederick Inman Trust to or for a purpose or purposes? If it is so, it must be for a purpose or purposes found in the objects of the Melbourne Society. This will be so, if the Melbourne Society when it receives the money is bound to hold it in trust to apply it to that purpose or purposes.

In Re Cain, [1950] VLR 382, at pp. 389-90; [1950] ALR 796, Dean, J, expressed these views: "The real question, accordingly, is whether a gift simpliciter to an unincorporated body is a gift which creates a trust binding the members to apply the gift to its purposes. If it does, and such purposes are not charitable, the gift will fail. In my opinion, however, no such trust is created. It is clear that a gift to an incorporated company does not create a trust to apply it in accordance with the objects of the company, either as at the date of the gift or as thereafter amended. The observance of the company's objects may be enforced, but not on the basis of any trust affecting any gift made to it. In a winding up, any surplus assets are divisible amongst contributories. The matter is settled by Bowman v Secular Society, [1917] AC 406; [1916-17] All ER Rep 1.


"A precisely similar view has been taken in regard to gifts made to unincorporated bodies. Such a gift is a gift to the members, who are bound by agreement inter se to apply their common funds to the objects stated in the constitution of the bodies. But no question of trust arises."

In Re Godfree, [1952] VLR 353; [1952] ALR 595, after the passage I have quoted above (which was repeated by Dixon, CJ, in Sydney Homoeopathic Hospital v Turner, supra) Herring, CJ, proceeded to say: "There is in other words a trust involved so to apply it, and the institution itself, where it is incorporated as the Carlton Home was, is the trustee, and takes the income as such, Tudor on Charities, 5th ed., at pp. 118-9. For all the institution's property is dedicated to the furtherance of its purposes and objects, and so the trust of the income, that is involved, will be carried into effect, if such income is used to supplement such general funds- Green v Rutherford, (1750) 1 Ves Sen 462, at p. 473."

This is difficult to reconcile with Bowman v Secular Society Ltd, [1917] AC 406; [1916-17] All ER Rep 1 (and particularly the remarks of Lord Parker at pp. 440-2) where it was distinctly held that although the circumstances of a gift may make the donee a trustee, where there is a gift to a corporation (and in that case it was a company limited by guarantee), and there is nothing more, the donee corporation does not take in trust for purposes contained in its objects. The point is discussed in an article by Dr. HAJ Ford, "Charitable Corporation's taking Income in Perpetuity", 26 ALJ 635, where it is argued that, on the authorities, where there is a gift without more to a corporation, which is in fact charitable, it takes the disposition subject to an obligation best described as a trust (or perhaps better called a quasi trust) to apply the property to its charitable purposes.

In Re Lloyd, [1958] VR 523, Dean, J, without reference to the views previously expressed by him in Re Cain, supra, held that a gift of income to a corporation, Zelman Memorial Orchestra Ltd., was a gift for purposes ascertained from its objects, and held further, without argument (as the report states) that it could be saved by the application of s131 of the Property Law Act to those objects. He referred to the decision of Roper, CJ in Eq, in Perpetual Trustees Co Ltd v King George's Fund (1949) 50 SR (NSW) 145, Where there was a gift to the fund, a voluntary association "to be applicable for the general purposes of that fund"; but in that case it was not difficult to find a trust for the several purposes. He referred also to a decision of Herring, CJ, in Re Thureau, [1948] 2 ALR 487, where there was a gift "for such charitable institutions or bodies church or otherwise or such other bodies for the public benefit and welfare"; to a decision of Fullagar, J, in Re Belcher, [1950] VLR 11; [1950] ALR 138, where there was a "gift upon trust for the Navy League Sea Cadets, Geelong Branch or any other youth welfare organization"; and to a further decision of Fullagar, J, in Re Parker, [1949] VLR 133; [1949] ALR 545, in which he followed Re Thureau, supra. But the only effect of these cases is that a gift to a charitable institution is a gift for a charitable purpose, and when there are also other non-charitable purposes not connected with the charitable institution, to which the gift can be applied, the section will operate. They do not decide that a gift to a charitable institution is a gift for several purposes, or that a gift to an institution which has objects both charitable and non-charitable, will attract the section, so as to save the gift for the charitable objects of the institution.

Then in Re Goode, [1960] VR 117, O'Bryan, J, referred with approval to the remarks of Dean, J, in Re Cain, supra, to the effect that on a gift to an unincorporated association without more the association did not take in trust to apply the gift to its objects.

Later, Hudson, J, in Re Weaver, [1963] VR 257, at p. 266, expressed his disposition, if it had been necessary, to apply the section to save a gift of income to an unincorporated association, if some of its objects had been held to be non-charitable. Then Fullagar, J, said in his judgment in Sydney Homoeopathic Hospital v Turner, [1959] ALR 782; 102 CLR 188, at p. 212: "We begin with the cardinal fact that the initial gift, though doubtless motivated by reference to some purpose or purposes which the donee is assumed to pursue, is not a gift for purposes as such. It is a gift to a specific corporate person bearing the name of the Sydney Homoeopathic Hospital." With this judgment McTiernan, J, agreed. It is the same view (as I apprehend) which is the basis of the observations of Dixon, CJ, in the same case, after referring to Re Godfree, supra, and Dr. HAJ Ford's article. These I have quoted above.

These authorities indicate a variety of views. But, of course, in some of them, the application of the statutory provision, now being dealt with, was not under consideration. But the authorities are not exhausted at that point. For almost at the same time as these last pronouncements in the High Court were being made, the Privy Council delivered its judgment in Leahy v Attorney-General for New South Wales, [1959] AC 457; [1959] 2 All ER 300. The actual decision was that the New South Wales equivalent of s131 could be applied to a general description, "such order of nuns as my executors and trustees shall select", so as to save the gift for such orders as were charitable as distinct from contemplative. But the decision meant not only that the section would operate to select out of the class of orders of nuns such orders as were of a charitable nature, but that the section could be so applied, because, as gifts for those charitable orders (unincorporated associations), they were purposive trusts. Two quotations will suffice to show this. At ([1959] AC 457) p. 484, the judgment of Viscount Simonds said: "At the risk of repetition their Lordships would point out that, if a gift is made to individuals, whether under their own names or in the name of the society, and the conclusion is reached that they are not intended to take beneficially, then they take as trustees." And at p. 486 it was said: "...it seems reasonably clear that, however little the testator understood the effect in law of a gift to an unincorporated body of persons by their society name, his intention was to create a trust, not merely for the benefit of the existing members of the selected order, but for its benefit as a continuing society and for the furtherance of its work."

I must, therefore, apply these criteria to the gift to the unincorporated association which I have been calling "the Melbourne Branch". I conclude that there is involved a purposive trust.

But it does not follow from Leahy's Case that if there could be found in Australia an order of nuns whose occupations were substantially contemplative as well as charitable, a bequest to it would be held to be taken on trust for each of its purposes and the section could be used to uphold the gift as taken in trust for such of its purposes as were charitable. It is perhaps a more manageable concept to take a society whose work was in part of a charitable nature and in part of a non-charitable nature. A bequest to it in circumstances where the idea of the benefit being taken by its existing members was excluded, would be treated as intended for the furtherance of its work. But because its work was not exclusively charitable, in my opinion, there would be not only no gift for the benefit of its immediate members, but no gift on any effective trust, and therefore no trust that could be saved by the section.

In the words of Viscount Simonds in Leahy's Case, at ([1959] AC 457) p. 486, "The dominant and sufficiently expressed intention of the testator is in their opinion (again in the words of Lord Buckmaster) that 'the gift is to be an endowment of the society to be held as an endowment' and that 'as the society is according to its form perpetual' the gift must, if it is to a non-charitable body, fail". Reference may also be made to Re Harpur's Will Trusts, [1961] CH 38; [1962] 1 CH 78; [1961] 3 All ER 588.

The authorities appear to justify these conclusions. A bequest, without more, of a fund or trust to pay the income thereof in perpetuity to a society, whether corporate or incorporate, whose objects are exclusively charitable, will, if the circumstances justify the inference that the bequest is intended for the furtherance of the work of the body, be upheld as a gift for the purpose of a charitable body and therefore for a charitable purpose. A like bequest to a society, whether corporate or unincorporate, whose objects are in no respects charitable, will, if the circumstances justify the inference that the bequest is intended for the furtherance of the work of the body, fail as a gift for the purpose of the body and therefore for a purpose which is not charitable. If there is a like bequest to a society, whether corporate or unincorporate, whose objects are diverse, so that some considered apart would be charitable and others (not merely ancillary) considered apart would be non-charitable, and the circumstances justify the inference that the bequest is for the work of the body, it will also fail because it is a gift for the purpose of the body, and therefore for a purpose which is not charitable, and s131 of the Property Law Act 1958 cannot apply as though it were a trust for both charitable and non-charitable purposes.

But even if the last proposition were not universally true, I would consider that another obstacle presented itself to the application of the section to the case of this gift to the Melbourne Society. There is in truth but one purpose involved. The fundamental aim and object of the Society is to oppose vivisection and secure its abolition: cf Bowman v Secular Society Ltd, [1917] AC 406, at p. 419; [1916-17] All ER Rep 1. It is not the object of preventing cruelty to animals simpliciter. The opposition to vivisection and its abolition is of the gist of the object and dominates it. If that object is not charitable, it cannot be charitable, because one method is abandoned or preferred in favour of another, e.g. political activity in favour of education. It is impossible, in my view, to use s131 to scale down the single object of opposition to end abolition of vivisection by paring off the method of political activity. That can no more be done than the object of establishing a Roman Catholic newspaper in RC Archbishop v Lawler (1934) 51 CLR 1; [1934] ALR 202, could be cut down by the use of s131 to enable it to be treated as the object of establishing a paper for religious purposes.

To this gift must be applied the words which were applied in Leahy's Case, supra, at ([1959] AC 457) p. 484, to the case where "the trust is not for persons but for a non-charitable purpose"--"As has been pointed out, no one can enforce such a trust. What follows? Ex hypothesi the trustees are not themselves the beneficiaries yet the trust fund is in their hands, and they may, or may not, think fit to carry out their testator's wishes. If so, it would seem that the testator has imperfectly exercised his testamentary power; he has delegated it, for the disposal of his property lies with them, not with him. Accordingly the subject- matter of the gift will be undisposed of or fall into the residuary estate as the case may be."

For these reasons, I think the gift of income to the Anti-Vivisection Society must fail.

The result so far, with respect to the trust of the net annual income, is that two of the parts have been disposed of to a charitable institution --a charitable purpose--and a third purported to be disposed of to a non-charitable body--a non-charitable purpose. It has not been suggested that s131 of the Property Law Act operates on this situation. But even if subs(1) were applicable, the result of subs(2) would merely be that the trust would be construed and given effect to in the same manner and in all respects as if no application of the trust funds or any part thereof to or for a non-charitable and invalid purpose had been directed or allowed. But having regard to the initial division into 10 parts and the disposal of only one such part to each of the charitable institutions, the result of applying the sub-section would not increase the quantum of the share going to each charitable institution, and would leave the share purported to be given to the non-charitable body undisposed of. It would, therefore, go to the next of kin. It is a share only of the net annual income of the trust fund to arise in perpetuity. But I think the only way to deal with the matter is to regard the next of kin as entitled to a tenth part of the corpus, the remaining nine-tenths to be held to produce an income to be divided into nine equal parts.

[His Honour then discussed other matters.]

Questions answered accordingly.