Congregational Union of New South Wales v. Thistlethwayte

(1952) 87 CLR 375

Between: CONGREGATIONAL UNION OF NEW SOUTH WALES
And: THISTLETHWAYTE

Court:
High Court of Australia

Judges: Dixon CJ
McTiernan J
Williams J
Fullagar J
Kitto J

Subject References:
Charity

Judgment date: 29 August 1952

Sydney


ORDER

The order of the Court was that the decretal order of the Supreme Court be varied as follows:-

1. By deleting therefrom the following words:-


"And this Court doth further declare that the direction in the will of the testator ninthly as to the balance of the said income that until such time as the distribution of the final balance of income from the testator's said estate should come into force as in the testator's said will provided the trustees of the said will shall expend any part or the whole of such balance of income from year to year in improving and developing the Gordon estate referred to in the said will by erecting suitable tenantable buildings thereon or otherwise as they in their discretion may think fit or they may in their discretion invest for the general purpose of the said will such balance of income or any part thereof from year to year instead of expending the same is not valid or effective and this Court doth further declare that the said balance of income is held by the trustees in so far as the said balance of income is derived from the estate of the testator upon a resulting trust to the estate of the testator and in so far as the said balance of income is derived from the estate of the testatrix upon a resulting trust to the estate of the testatrix"

and by substituting therefor a declaration in the words following:-


"And this Court doth further declare that the direction in the will of the testator ninthly as to the balance of the said income that until such time as the distribution of the final balance of income from the testator's said estate should come into force as in the testator's said will provided the trustees of the said will shall expend any part or the whole of such balance of income from year to year in improving and developing the Gordon estate referred to in the said will by erecting suitable tenantable buildings thereon or otherwise as they in their discretion may think fit or they may in their discretion invest for the general purposes of the said will such balance or income or any part thereof from year to year instead of expending the same is valid and effective but that the power conferred by the following words of the testator's will, namely 'or they may in their discretion invest for the general purposes of this my will such balance of income or any part thereof from year to year instead of so expending the same' could not be exercised beyond the period of twenty-one years from the death of the said testator and that as to the accumulations of income for subsequent years in the hands of the trustees there is an intestacy".

2. By deleting therefrom the following words:-


"And this Court doth further declare that the discretionary power and authority conferred upon the trustees by the will of the testator to make special provision by earmarking a certain portion of his estate or the income therefrom or otherwise for the payment of the conditional aid and support in the said will provided to be paid to the beneficiaries relatives and others thereinafter mentioned and described is not valid or effective."

and by substituting therefor a declaration in the words following:-


"And this Court doth further declare that the discretionary power and authority conferred upon the trustees by the will of the testator to make special provision by earmarking a certain portion of his estate or the income therefrom or otherwise for the payment of the conditional aid and support in the said will provided to be paid to the beneficiaries relatives and others thereinafter mentioned and described is valid and effective."

3. By deleting therefrom the following words:-


"And this Court doth further declare that the said last mentioned directions are void in their entirety."

and by substituting therefor a declaration in the words following: -


"And this Court doth further declare that the trustees are now entitled to make the special provision by earmarking certain portion of the trust estate or the income therefrom or otherwise for the payment of the conditional aid and support in the will of the testator provided to be paid to the beneficiaries relatives and others therein mentioned and described."

4. By deleting therefrom the following words:-


"And this Court doth further declare that the direction in the will of the testator that upon the making of the said special provision the trustees may then distribute the final balance of income of the testator's estate exclusive of such special provision annually as thereinafter provided is not valid or effective."

and by substituting therefor a declaration in the words following: -


"And this Court doth further declare that the direction in the will of the testator that upon the making of the said special provision the trustees may then distribute the final balance of income of the testator's estate exclusive of such special provision annually as thereinafter provided is valid and effective."

5. By deleting therefrom the following words:-


"And this Court doth further declare that the direction contained in the will of the testator that if at any time subsequent to the making of the said special provision it should be found that the same was inadequate for the purpose aforesaid his trustees should then for so long as they may think fit or find necessary suspend the distribution of the whole or any part of the final balance of income and should apply such suspended part of such distribution to the purpose aforesaid or should the trustees find that the said special provision was in excess of requirements they may release such part of such special provision for so long as they in their discretion think fit and should apply the same to the trusts of the testator's will is not valid or effective."

and by substituting therefor a declaration in the words following:-


"And this Court doth further declare that the direction contained in the will of the testator that if at any time subsequent to the making of the said special provision it should be found that the same was inadequate for the purpose aforesaid his trustees should then or so long as they may think fit or find necessary suspend the distribution of the whole or any part of the final balance of income and should apply such suspended part of such distribution to the purpose aforesaid or should the trustees find that the said special provision was in excess of the requirements they may release such part of such special provision for so long as they in their discretion think fit and should apply the same to the trusts of the testator's will is valid and effective."

6. By deleting therefrom the following words:-


"And this Court doth further declare that according to the true construction of the will of the testator and without dealing with the validity of the provision construed the final balance of income in the said estate is distributable upon the death of the last surviving of the relatives or other beneficiaries named or described in the will of the testator and to whom he has eighthly directed to be paid the conditional aid and support in the will of the testator provided and of those benefiting under the fourthly fifthly and sixthly provisions as set out in the said will."

and by substituting therefor a declaration in the words following:-


"And this Court doth further declare that according to the true construction of the will of the testator the final balance of income in the said estate is distributable upon the death of the last surviving of such of the relatives or other beneficiaries named or described in the will of the testator provided as were in being and identifiable as possible beneficiaries at the time of the death of the testator and of those benefiting under the fourthly fifthly and sixthly provisions as set out in the said will".

7. By deleting therefrom the following words:-


"And this Court doth further declare that the direction in the will of the testator as to a further one-third of the residue of the final available balance of income to pay the same to the Congregational Union of New South Wales is not valid or effective and this Court doth further declare that the said last mentioned one-third share is held by the trustees in so far as the said share is derived from the estate of the testator upon a resulting trust to the estate of the testator and in so far as the said share is derived from the estate of the testatrix upon a resulting trust to the estate of the testatrix."

and by substituting therefor a declaration in the words following:-


"And this Court doth further declare that the direction in the will of the testator as to a further one-third of the residue of the final available balance of income to pay the same to the Congregational Union of New South Wales is valid and effective".

8. By deleting therefrom the following words:-


"And this Court doth further declare that the direction to pay over to the committee for the time being of the Congregational Union of New South Wales a sum out of the income from the testator's said estate equal to five per centum per annum of the net proceeds of such income to be applied by the committee in the manner in the said will provided is not valid or effective and this Court doth further declare that the said five per centum per annum is not segregated from the rest of the income and the income is to be held by the trustees as though the provisions as to the said five per centum per annum had not been made."

and by substituting therefor a declaration in the words following:-


"And this Court doth further declare that the direction to pay over to the committee for the time being of the Congregational Union of New South Wales a sum out of the income from the testator's said estate equal to five per centum per annum of the net proceeds of such income to be applied by the committee in the manner in the said will provided is valid and effective".