Monds v Stackhouse

(1948) 77 CLR 232

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(Judgment by: McTiernan J)

Between: Monds
And: Stackhouse

Court:

Judges: Latham CJ
Dixon J

McTiernan J

Subject References:
Charities

Hearing date: Hobart, 4 & 5 November 1948
Judgment date: 23 December 1948

Melbourne

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Judgment by:
McTiernan J

The question is whether the gift to the corporation of the money constituting the residue of the estate is charitable. It is a gift made with the intent that the corporation should carry out the directions in the will. The money is given to the corporation upon trust. If the trust is charitable, the corporation has power under the Act establishing it to carry out the trust. The purpose of the gift is of a municipal or public character: it aims at assisting the citizens of Launceston by providing a public hall.

This is an object analogous to those mentioned in the Statute of Elizabeth. The decisions cited in Halsbury's Laws of England, 2nd ed., vol. 4, pp. 123, 124, fully warrant this conclusion. The purpose of the gift is charitable. (at p251)

2. I do not find in the will a general charitable intention. I think that the only purpose of the gift is the intended hall or theatre. There is therefore a gift to the corporation for the particular purpose of providing a hall or theatre suitable for the activities mentioned by the testator. The discretion given to the corporation in disposing of the said money is not in harmony with the words creating the trust with which the will impresses the money; the grant of the discretion is open to attack as an attempt to deprive the court of jurisdiction to keep the application of the money within the scope of the trust. (at p251)

3. The moneys, the subject of the trust, are given as the "nucleus of a fund to provide" the intended hall or theatre. The trust to which the moneys are subject arises immediately upon the testator's death. Hence the gift does not contravene the rule against perpetuities. It is true that the application of the money to the provision of the intended hall may be postponed indefinitely or may not take place at all. But nevertheless there is an immediate gift of the money to the corporation subject to the trust declared by the testator. If it turns out to be impracticable to provide the intended hall or theatre, there would be a resulting trust of the money the subject of the gift to the next of kin. It would be otherwise if the will manifests a general charitable intention. (at p251)

4. The order made by the Supreme Court contains no provision protecting the next of kin in the event of the failure of the purpose of the gift. I think that the order should be amended by adding such a provision. (at p251)

5. I agree with the order proposed by the Chief Justice of this Court. (at p251)