Re Elmore, deceased

[1968] VR 390

(Judgment by: Gowans J)

Re Elmore, deceased

Supreme Court of Victoria

Gowans J

Subject References:
Administration and probate
Purposive trust for the publication of a book
No indication of character or content of the work to be published
Purposive trust for the preparation and publication of the testator's own literary works
Trust not for the advancement of education or the public benefit

Hearing date: 14 March 1968
Judgment date: 15 March 1968

Judgment by:
Gowans J

This originating summons raises questions as to the validity of two dispositions in the will of Frederick Elmore.

The will is dated 20 September 1956. The testator is described in it as a painter and decorator, and as living at 64 Invermay Grove, Heidelberg. For some 10 years or so (or maybe longer) prior to the will, the testator had apparently been engaged in producing a body of writings of various descriptions. They took the form of epigrams, essays, stories, plays, poems, and reminiscences. They were still in manuscript form at the time of the testator's death. They were then found contained in some 22 exercise books of each, and some 300 exercise books of each, together with eight bundles of envelopes of loose papers. According to the notations made on the writings, some were designed for "reading by children", others "for the youthful", and others "for thoughtful adults". The essays concerned such topics as newspapers, juvenile delinquents, politicians, the atom bomb, films, spiritualism, seduction, instinct, and conscience. The stories and plays were works with an historical and exotic setting or dealing with the after-life or with an Australian setting in the country or in domestic life or factory life or with political conspiracies. The poems contained reflections or exhortations or were works of a descriptive nature. The reminiscences were concerned with the testator's early life in the country districts of Victoria, or in Melbourne.

The testator's wife also appears to have been responsible for writings of her own. The testator died on 30 August 1957.

The first provision in the will which is under consideration reads as follows:

"Subject as aforesaid to hold my residuary estate to set aside a sum of two hundred pounds (200 pounds) and I direct my trustee to apply from the income and the capital thereof such amount as my trustee may determine for the cost of publication of one book written by my wife the said Irene Ellen Elmore such book to be selected by my said wife and as to any amount not required for the publication of the said book upon trust for such of my children as shall be living at my death and if more than one in equal shares provided however that if any of them my said children predecease me leaving children living at my death then such children shall take and if more than one in equal shares per stirpes the share which his her or their parent would have taken had such parent not died."

The second provision follows immediately after the one that I have just read.

It reads:

"Subject as aforesaid to hold the balance of my residuary estate upon trust to divide the same into three equal parts or shares and to hold one of such parts or shares upon trust to apply from the capital and income thereof such amount as my trustee may determine for the cost of preparation and publication of my writings in prose and poetry and at present only in manuscript form at my house and in the Commercial Bank of Australia Ltd., Ivanhoe, and any balance of such one third part or share not required for the said preparation and publication of my said writings shall be divided between such of my said children as shall be living at my death and if more than one in equal shares provided however if any of them my said children predecease me leaving children living at my death such children shall take and if more than one in equal shares per stirpes the share which his her or their parent would have taken had such parent not so died."

As to the first of these dispositions, the questions are whether it should be construed as a gift for the benefit of the widow, and if not, whether it can be upheld as a gift for a charitable purpose. The question of construction is a short one. It involves an inquiry in the first instance as to whether the object of the gift is a person or a purpose. On its face the gift is not made to the wife. It is in the form of a direction to the trustee to apply money for a purpose. The association of the wife with the subject-matter is the writing of the book and its selection by her for publication. There is room for a view that the wife would, or might, benefit in a monetary way from publication. But the view is equally open that the benefit intended for her was the enhancement of her reputation or the gratification of her self-esteem. It is very much a matter of impression. I have been considerably influenced by the similarity of the language used in relation to this disposition to the language used in relation to the other gift which is clearly a gift for a purpose. In my view, this first disposition is a purposive trust, the purpose being the defraying of the cost of publication of a book by the testator's wife. If that construction is correct, then, if the trust is to be saved from the consequence of uncertainty of object, its purpose must be a charitable object. There is nothing in the provisions of the will to indicate the character or the contents of the works to be published. It cannot be characterized as being directed to the advancement of education or to any public purpose. It is not sought to be saved on any such ground by the Attorney-General. My conclusion is that the trust to apply an amount to be determined by the trustee for the cost of publication of a book written by the wife is invalid. I will consider later what is the consequence of this conclusion.

I turn then to the second disposition. This is clearly a purposive trust expressed by the words: "for the cost of preparation and publication of my writings in prose and poetry and at present only in manuscript form at my house, and in the Commercial Bank of Australia Limited, Ivanhoe." The question is whether this is a charitable object. It is sought to be upheld by the Attorney-General as a gift for the advancement of learning or for a public purpose beneficial to the community.

In the absence of any indication in the will of any object sought to be attained by the authorized publication, and in the absence of any indication of the character or contents of the writings to be published, there is no prima facie approach that the object is the advancement of education or any public purpose. It is a matter for further inquiry. In Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1, at p. 23; [1934] ALR 202, at p. 207, Rich, J, said:

"In the case of trusts for the publication of works or other literary matter in being at the time of the trust taking effect, the court determines whether the trust is for a charitable object by an examination of the matter to be published: Thornton v Howe (1862) 31 Beav 14. Compare De Themmines v De Bonneval (1828) 5 Russ 288."

It is clear that in the task of examination the Court is entitled to the benefit of extrinsic evidence as to the matter of the proposed publication. It is entitled to have the writings identified, and to have them categorized. When this is done (as was done in this case) and all that appears is that the writings take a variety of forms and are concerned with a variety of subject-matters and are without the colour of any particular character, so that they represent nothing more than the product of literary effort, the Court is left with nothing in favour of the view that their publication is directed to the advancement of education or some public benefit. It is different where it appears that the writings are concerned with a particular subject such as religious teachings as in Thornton v Howe, supra, and Congregational Union of New South Wales v Thistlethwayte (1952) 87 CLR 375, at p. 445; [1952] ALR 729, or with some particular field of learning as in Re Stamford, [1924] 1 CH 73, or where they are concerned with the life or works of some noted figure as in Re Hamilton-Grey (1938) 38 SR (NSW) 262, or in Re Delius, [1957] CH 299: sub nom Re Delius' Will Trusts, [1957] 1 All ER 854. In such case a prima facie case in favour of a charitable object may appear either on the view that it tends to public education or instruction or on the view that it tends to some public purpose beneficial to the community. But if any such character is missing and the utility of the publication is not conceded, the claim that the proposed publication is directed to the advancement of education or some other public benefit must depend upon a value assessment of the merits of the writings themselves, just as a claim that the establishment of a museum for certain paintings and objets d'art is directed to such purposes must depend upon the quality and artistic and aesthetic merit of the proposed exhibits: see Re Pinion, deceased, [1965] CH 85; [1964] 1 All ER 890. As this last case shows, the Court may in this connexion have the assistance of expert evidence as to the accepted canon of taste and as to the approximation thereto or remoteness therefrom of the standard of the subject-matter under consideration.

In the present case the trustee has produced evidence from Douglas Colin Meucke, a senior lecturer in English at Monash University. It was not disputed that he was qualified to express an opinion as to the literary merit of the writings of the testator, but it was objected for the Attorney-General that he was not qualified to express an opinion as to their educational value. I am unable to uphold the objection. I think a witness who has, as he says he has, had 16 years' experience in the teaching of English in the Universities of Adelaide, Newcastle, and Monash, and who was chief examiner for the Public Schools' Examination in Adelaide and was a member of the Schools' Syllabus Committee in New South Wales, is qualified to express such an opinion in relation to literature. His opinion was that taken as a whole the works of the testator have no literary merit and they have no significant education value. I have myself made a very superficial check of the material and have found nothing to make me doubt the opinion expressed. But I do not rely on my own assessment; I have regard in this connexion only to the opinion of the witness. No attempt was made on the part of the Attorney-General to cross-examine the deponent or to lead evidence in contradiction, nor was any resort made to the subject-matter of the writings. But the evidence of the deponent was subjected to criticism. It was said in the first instance that the witness agreed that he had not read every page. That is so, but he added:

"I have gone carefully through each bundle and book so as to make sure I have missed nothing of significance."

I think there is nothing that can be got out of this. It was said further that the witness used the term "education" and its derivatives in a narrow sense associated with teaching. In some contexts there is something to support this, but not in all. There is nothing to detract from the force of the general statement that "the works could not advance or raise the literary or aesthetic taste of the community, nor can they promote education in such fields." If that statement is accepted it leaves no room for survival of the claim that the publications of the writings regarded as a whole would tend to the advancement of learning, or be of public benefit. Then, it is also said that the criticism of the writings by the witness is so expressed as to leave room for some merit of some degree in respect of some parts of the writing. This is true as far as it goes. But it damns them with faint praise. It is said that "a few of the epigrams are good enough to deserve a place in an album or a desk calendar; they would, however, fill but a few pages at most." As to the essays, it is said,

"It can be said for these works that they are not wholly devoid of wit and a sense of humour. However, such humour and wit would fill at the most only half a dozen printed pages."

Then, as to the stories, it is said:

"The best of Mr. Elmore's work is included in the 'Dog's Diaries', as well as in the reminiscences. ...The 'Dog's Diaries' and one or two other animal stories might have some appeal in an edited selection as works to be read by children in the earliest years of primary school, but an individual teacher or school syllabus committee would not in my view find anything in them of literary merit or educational value which they could not find easily elsewhere."

As to the reminiscences, it is said:

"Perhaps the best of Mr. Elmore's work is to be found in these reminiscences...These have some intrinsic interest from the subject matter; but they are too deficient in detail to have significant historical value, and are not well enough written to have any literary value. In any event, a collection of these would perhaps fill ten to fifteen pages of print. From an educational point of view the reminiscences, certain of which are written for older children, have some intrinsic interest but they suffer from inconclusiveness, a lack of detail, and an old-fashioned style. They could not be made suitable for children without extensive editorial rewriting. In any case, there are again not enough of them to make a book."

In my opinion, there is insufficient in this to make the publication of this material a purpose tending to the advancement of learning or the public benefit in the sense which is necessary to make it a charitable object. I do not think the fact that by some drastic salvage operation something could be saved that might form the subject of a valid charitable trust will save this gift. Some shaving off might be permissible, but not a wholesale dismemberment. In this connexion I respond to the language of the final comment of Russell, LJ, in Re Pinion, deceased, [1965] CH 85, at p. 111; [1964] 1 All ER 890, at p. 896:

"For my part I would not admit to the favoured ranks of charity, bearing the banner of education, a disposition with such negligible qualifications to bear it. Where the evidence leaves me with the virtual certainty on the balance of probabilities that no member of the public will ever extract one iota of education from the disposition, I am prepared to march it in another direction pressing into its hands a banner lettered 'De Minimis Non Curat Lex'."

I would apply these observations also to the submission that the gift might be regarded as one for the public benefit.

It must be remembered that in this context, as in others, it must appear that the trust is created for a charitable purpose, be it educational or otherwise, and not merely for the provision of a memorial to the testator: see Re Endacott, [1960] CH 232, at p. 249; [1959] 3 All ER 562. In this case, in my view, nothing more appears than the latter consideration.

In my opinion, the trust to apply an amount for the cost of preparation and publication of the testator's writings is not a trust for a charitable object and is invalid.

There is no suggestion that there is any room for a cy-pres application.

It is necessary then to consider what is the effect of the invalidity of these two trusts. The first disposition is followed by the words:

"and as to any amount not required for the publication of the said book upon trust etc."

In the second case, the words are:

"and any balance of such one-third part or share not required for the said preparation and publication of my said writings shall be decided between, etc."

The language is appropriate enough to apply to the case where there is no publication at all (as might be the case where the wife wrote no book or selected no book for publication) as where there was a publication, but it did not absorb all the money available. I do not think that any distinction can be drawn between the words "any amount required" and the words "any balance of such one-third part or share not required". I think it is clear that this cannot be regarded as a case where the gift of what is not required is dependent upon the operation of the trust which precedes it. In my view, this should properly be regarded as a case of a gift over of what is not absorbed in the operation of the first trust, and if necessary of the whole of the fund. If the gift over were only of part of a fund left after an unascertained and unascertainable part had been allocated to an invalid purpose, the gift over would fail with the prior gift, or if the gift over were to operate outside or could take effect outside the perpetuities period, the gift over would be void. But, in my view, the form of expression is such that the gift over is to take effect where the prior gift fails to operate for any reason, and as much in the case where none of the money is required because the prior trust is invalid as in the case where none is so required for any other reason. The case where it has to be considered whether the gift over fails for remoteness was dealt with in Macpherson v Maund (1937) 58 CLR 341. I refer in particular to what was said by Latham, CJ, at p. 345. He said:

"If on the other hand, the ultimate gift, according to the words of the instrument, is so expressed as to take effect upon the failure of the prior gifts from whatever cause, e.g. upon the ground of invalidity, then the ultimate gift is valid."

In that case the point was treated as purely one of construction. I think that is the case here. I do not regard this gift as one where there is a division of a fund and a failure of one part with a disposal of the other parts resulting from the division.

In my opinion, therefore, the result of the failure of the trust as to publication is in each case to pass the fund concerned over to the children and grandchildren thereafter specified. I should perhaps add at this point that had I construed the clause relating to the publication of the book by the wife as providing for something to be paid for her benefit, if she selected for publication a book written by her, and the position was that that benefit lapsed for want of fulfilment of the condition or on account of disclaimer by her of the gift, I would be of opinion as at present advised that I should reach the same conclusion as to the ultimate destination of the fund.

Questions answered accordingly.