Barby v Perpetual Trustee Co Ltd

[1937] HCA 64

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(Decision by: Evatt J)

Barby
vPerpetual Trustee Co Ltd

Court:

Judges: Latham CJ
Rich J
Starke J
Dixon J

Evatt J

Case References:
-

Hearing date:
Judgment date: 25 November 1937

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Decision by:
Evatt J

Certainly in almost every other document but a will, and perhaps in almost every will except one into which questions of charitable gifts obtrude, the phrase "in the manner and in accordance with the scheme following that is to say" would at once be interpreted as excluding every other manner and every other scheme. But on the whole, and not without some doubt, I agree that the paramount intention, purpose and motive of the testatrix is sufficiently evidenced by the words which introduce the direction dealing with the residuary estate, viz., "for the relief of necessitous returned soldiers and their widows children or grandchildren who may be in necessitous circumstances (that is those only earning the basic wage for the time being or under and not possessed of more than £200)." These words disclose an intent declared in general and comprehensive terms and point to a purpose which, having regard to the decision of the Privy Council in Verge v. Somerville [ ^[13] ], must be regarded as charitable.

The appeal should be dismissed subject to the variation of the decree suggested by the Chief Justice.