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CHARITIES

[Supplemented to January, 1999]Scope NoteThis title includes cases on what are charitable purposes; on the construction,effect andvalidity of charitable gifts and trusts, conditions and gifts over and the application of thecy-pres doctrine; on the position, including the powers and duties, of trusteesof charities; onthe administration and control by the court of charitable trusts and gifts; and

on variousstatutory provisions relating to charities.The title does not include cases upon the definition of charities, charitable institutions,charitable purposes, and charitable gifts and bequests and similar phrases arising inconnexion with taxation and death or estate duties, which will be found in TAXESANDDUTIES, nor cases on the management of church trust property, which are includedinCHURCHES AND RELIGIOUS ASSOCIATIONS.Cases on the Settled Estates and Lands Acts and on Sir Samuel Romilly's Act (52Geo III c

101) may be found in the earlier editions of this work.Articles, Notes, Etc.Articles. 1928. Misapplication of Funds of Charitable Trusts: 2 ALJ 194.1939. Trusts for Encouragement of Atheism: 13 ALJ 349.1940. Mixed Charitable and Non-Charitable Gifts: 14 ALJ 58.1941. Trusts for Charitable and/or Non-Charitable Purposes: 15 ALJ 134.1939-1941. Purpose Trusts: 2 Res Jud 118.1949. Charitable Gifts for Religious Purposes: 23 ALJ 249. Some Observations onReligiousCharity: 4 Res Jud 92.1950. Mixed and Non-Charitable Gifts: 24 ALJ 239.1951. Fifty years of Equity in New South Wales A Short Survey: 25 ALJ 344.1953. Charitable Corporations Taking Income in Perpetuity: 26 ALJ 635; 27 ALJ 10

7.1966. Devises and Bequests to Unincorporated Bodies: 2 Adel L Rev 336.1968. Charities The Incidental Question: 6 MULR 35.1973. Trusts Including Charitable and Non Charitable Purposes Special StatutoryProvisions: (1973) 47 ALJ 68.1987. On Charity's Edge The Animal Welfare Trust 13 Mon LR 1.Notes. 1934. The Property Law (Charitable Bequests) Act 1934 (Vic): 8 ALJ 218.1949. Charitable Trusts "Edification of Mankind": 4 Res Jud 177.1951. Charitable Trusts: 1 UQLJ, No 2, p 73.1953. Reports of the Committee on the Law and Practice Relating to Charitable Trusts andReport of the Select Committee to Investigate Foundations: 16 Mod LR 343.

1954. The Public Nature of Charitable Trusts: 28 Law Inst J 6. Extracts from Taxing Acts onGifts to Charities: 28 Law Inst J 7.1955. Mixed Charitable and Non-Charitable Gifts: 29 ALJ 62.1959. Condition Dependent on Conduct of Administration: 33 ALJ 54.1960. Bequest to Parish Council "To Provide some Useful Memorial to Myself": 33 ALJ374.1961. Income Tax Charities Poor Relations not for Export: 35 ALJ 82.1962. Power to Distribute Amongst Hospitals: 35 ALJ 347.

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1964. Joinder of Attorney-General in Proceedings to test the validity of charitable trusts in awill: 58 QJP 19.1965. General Charitable Intention Circumvention of Eccentricity: 39 ALJ 240.1972. Where Charity Begins (Publication of Law Reports): 46 ALJ 4.Articles. 1989. Limitation Defences in Civil Proceedings: The Special Case of Charity?:[1989] NZLJ 362.1990. An Anti-Roman Catholic Bias in the Law of Charity: [1990] Conv 34. CharitableTrusts for the Saying of Masses: [1990] SJ (Supplement) 26. The Civil-law Founda

tion as aModel for the Reform of Charitable Trusts Law: 64 ALJ 404.1994. Administrative Efficiency in Charitable Trusts: 32 Law Soc J (No 3) 31. CharitableTrusts Legal Mechanisms for Change: 14 QL 181.1995. Inquiry Into Charities A Legal Perspective: 69 Law Inst J 26.1996. Charitable Trust Changes: [1996] CCH Tax Week 685. Fund-raising for MaintainedSchools: the Charity Law Implications: [1995] Conv 453. Taking Stock of Charities: 65 AustAccountant (No 11) 18.1997. Professional Associations and Charitable Status (C E F Rickett): [1997] NZLJ 49.

[1-8] Pt I. Charitable Purposes.[1] Divn 1. Generally1. Charity charging for services Asylum and convalescent home .] A gift upon trust toapply the property "for the purpose of founding endowing or assisting private institutions orhomes in Tasmania or Victoria for the care and treatment of mentally afflicted persons as mytrustees may in their absolute discretion select and to be paid or applied to orfor such objectsor institutions or homes if more than one in such proportions as my trustees maythinkproper", and a gift "for the purpose of founding endowing or assisting private h

omes for thetreatment of sick or convalescent persons in cases where such persons cannot betreated intheir own homes and it would not be advisable to send or place them in a publicinstitutionasylum or hospital and for the treatment of such persons who may be suffering from ill healthor constitutional weakness and who may desire to avail themselves of such homessubject tothe parties so applying being approved of and of paying such fees as may be fixed by thosehaving control and management of the said homes", Held, both to be valid charitable gifts.

[(1909) 5 Tas LR 68, affd on different grounds.]TAYLOR V TAYLOR (1910) 10 CLR 218; 16 ALR 129 (HC).2. Charity charging for services Hospital Not for private gain .] A testatrixbequeathed one-half of the income of her residuary trust fund to the treasurer of St Luke'sHospital "to be used for such general purposes in connection with the said hospital as thecommittee ... may think fit". The hospital, which was not carried on for privategain, was

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greatly assisted by public subscriptions. The hospital did not accommodate patients unable topay fees, but it did accommodate some patients who paid less than their maintenance at thehospital. Held, that the gift was a good charitable gift.PERPETUAL TRUSTEE CO (LTD) V ST LUKE'S HOSPITAL (1939) 39 SR (NSW) 408;56 WN 181 (NSW Sup Ct, Nicholas J). [Discussed in note, 13 ALJ 366.]3. Charity charging for services Hospital Not for private gain .] St Vincent's PrivateHospital was established and conducted by the Sisters of Charity, a congregationgoverned by

their constitution under which they devote themselves without reward to good works. Dailycharges were substantial. On occasions patients were treated free or at reducedfees. Thehospital was not run as a profit-making enterprise as if it were a commercial venture. Anysurpluses made were applied for the purposes of the general hospital and also for the generalpurposes of the Sisters of Charity. Held: (1) A gift for the purposes of a hospital is primafacie a good charitable gift and this presumption was not displaced in this caseby thecircumstance that surpluses were made and used for the purposes of the Sisters o

f Charity,for whatever the Sisters might be empowered to do with their general property, the trusts ofthe will required them to use the gift for the purposes of the hospital. The probability that thenecessity would appear in the course of the due administration of the trusts todefine moreclearly the purposes for which the income might be applied, referred to. (2) There was publicneed for and benefit from the hospital; hence the gift was a good charitable gift. Theprovision of medical facilities does not necessarily fail to be charitable merely because by

reason of expense they could only be used by persons of some means. To provide,inresponse to public need, medical treatment otherwise inaccessible but in its nature expensive,without any profit motive, might well be charitable: on the other hand to limitadmission to anursing home to the rich would not be so. The test is essentially one of publicbenefit, andindirect as well as direct benefit enters into the account. Perpetual Trustee Co(Ltd) v StLuke's Hospital (1939) 39 SR (NSW) 408, approved.[(1966) 84 WN (Pt 1) (NSW) 337; [1966] 2 NSWR 232 affd on this point.]LE CRAS V PERPETUAL TRUSTEE CO LTD (1967) 41 ALJR 213; 68 SR (NSW) 89; 87

WN (Pt 2) 53; [1968] ALR 161; [1967] 2 NSWR 706; [1969] 1 AC 514; [1967] 1 All ER915; sub noms RE RESCH'S WILL TRUSTS; LE CRAS V PERPETUAL TRUSTEE COLTD [1968] 3 WLR 1153 (PC).4. Charity charging for services Hospital.] Quaere, whether the setting upandmaintenance of a hospital intended to be entirely supported by the fees of patients is a goodcharitable trust.RE HUGHES; THORNTON V CHURCH OF ENGLAND TRUSTS CORPORATION FOR

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DIOCESE OF MELBOURNE [1934] VLR 345; [1935] ALR 19 (Vic Sup Ct, Mann J).[Discussed in note, 8 ALJ 329.]5. Charity charging for services Hospital.] A testator gave the residue ofhis propertyto the Mater Misericordiae Private Hospital, an institution conducted by an order of Sisters ofMercy, which received and tended patients for payment, and also administered toandreceived for treatment the sick poor who could make no payments. Held, that it was a goodcharitable gift and that the receipt of the Sister of Mercy in charge of the hos

pital should be asufficient discharge to the trustees.QUEENSLAND TRUSTEES LTD V GREEN [1911] QSR 105 (Q Sup Ct FC).6. Charity charging for services Hospital.] Prima facie, any hospital is acharity. Ahospital which makes a charge for its services does not cease to be a charity ifit is otherwisecharitable, unless the circumstances show that the hospital is an institution which isconducted primarily for private gain.RE SUTHERLAND; QUEENSLAND TRUSTEES LTD V A-G (Q) [1954] QSR 99 (Q SupCt FC).7. Charity charging for services Sanatorium .] A charitable trust means any

object ofpublic utility. The mere fact that a charge is made for the admission of patients to aninebriate retreat does not make it the less a public charity.[(1885) 11 VLR 617 affd.]A-G (VIC) V M'CARTHY (1886) 12 VLR 535 (Vic Sup Ct FC).8. Charity trading .] The conduct of trade by a charitable trust does not derogate from itscharitable character because any gain from the trading operations must be used in furtheringthe purposes of the trust.MCGARVIE SMITH INSTITUTE V CAMPBELLTOWN MUNICIPAL COUNCIL (1965)83 WN (Pt 1) (NSW) 191; 11 LGRA 321; [1965] NSWR 1641 (NSW Land & Valuation Ct).

9. Gift to object supported out of public funds .] A bequest, the object of which is for thebenefit of the public, is a valid charitable bequest, notwithstanding that the object issupported wholly or in part out of the public funds.ROBISON V STUART (1891) 12 LR (NSW) Eq 47 (NSW Sup Ct, Owen CJ in Eq).10. Gift to object supported out of public funds .] A gift that is otherwisea charitable giftdoes not cease to be so merely because the object of the gift is one that is maintained entirelyout of Government funds.RE SUTHERLAND; QUEENSLAND TRUSTEES LTD V A-G (Q) [1954] QSR 99 (Q Sup

Ct FC).[2] Divn 2. Public BenefitPublic benevolent institutions see [8].11. General rule .] In order that a gift, not being for the relief of poverty, or theadvancement of education or religion, may constitute a valid charitable trust, it must be forthe benefit of the community, or of an appreciably important class of the community, andneed not be confined to poor persons only. Therefore, a bequest to "the trustees

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of theRepatriation Fund, or other similar fund for the benefit of New South Wales returnedsoldiers" is a good charitable bequest.[(1921) 21 SR (NSW) 450; 38 WN 118 affd.]VERGE V SOMERVILLE [1924] AC 496; (1924) 93 LJPC 173; 131 LT 107; 40 TLR 279;68 SJ 419 (PC).12. General rule And exception .] It is convenient to summarize the relevant legalprinciples as established by the authorities. They are: 1. A trust or gift in order to be

charitable in the legal sense must be for the benefit of the public or a considerable section ofthe public. To this rule there is an exception which cannot be referred to any principle, that atrust or gift for the relief of poverty may be charitable even though it is limited to someaggregate of individuals ascertained by reference to some personal tie. 2. Benefit to thepublic is not in itself sufficient to render a trust charitable; the purpose ofthe trust must fallwithin the spirit and intendment of the preamble to the Statute of Elizabeth (43Eliz I c 4);and every purpose of religion is not necessarily within the legal conception of

charity. 3. Agift for religious purposes must be treated as a gift for charitable purposes unless the contrarycan be shown and a trust for the spread of propagation of the Gospel is a good charitabletrust. 4. If it is certain that the object is charity, and the property intendedfor charity isdescribed with certainty, the trust will not fail because there is uncertainty concerning theparticular charitable purpose. 5. If the mode of carrying out the trust set outin the will isimpracticable or not defined with sufficient precision, the court must considerif the mode

prescribed is so essential that the intention of charity cannot be separated from it. If theconclusion is that the mode is incidental and not essential, the court, in the exercise of itsadministrative jurisdiction, will direct that a scheme be settled to carry out that intention. Ifthe conclusion is that no paramount general intention can be inferred and the trust is for aparticular charitable purpose which the court is satisfied cannot be carried into effect, thetrust fails, not because of uncertainty, but because of impracticability. The proper conclusionto be drawn depends upon the construction of the will in the light of admissible

extrinsiccircumstances. 6. When it is found that the trust is not practicable, and thereis no underlyingcharitable purpose wider than the expressed trust, prima facie, there is a resulting trust andthe property is held for the residuary beneficiaries or the next of kin, as thecase may be. 7. Itis irrelevant to the question of construction that the trustees may not carry out their dutiesunder the trust; "it is the right and the duty of [the] Attorney-General to inte

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rvene and informthe Court if the trustees fall short in their duty", and it is the duty of the Attorney-General, ifneed be, to assist the court in the formulation of a scheme for the execution ofa charitabletrust.RE FLATMAN; FLATMAN V BINNIE [1953] VLR 33; [1952] ALR 980 (Vic Sup Ct, BarryJ). [Discussed in note, 27 ALJ 380.]13. Section of public Gift to "Presbyterians the descendants of those settledin the Colonyhailing from or born in the North of Ireland" in trust to establish "college for

the education ...of their youth" in specified religious standards .] A testator by will gave successive lifeinterests to his widow and nephews in a property, and by codicil gave the property on thetermination of the life interests "to the Presbyterians the descendants of thosesettled in theColony hailing from or born in the North of Ireland to be held in trust for thepurpose ofestablishing a college for the education and tuition of their youth in the standards of theWestminster Divines as taught in the Holy Scriptures". Held, that, although theobject of the

testator's bounty was, prima facie, a charitable object within the classification inCommissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531, at p 583, thequalifications for eligibility for education at the proposed college had the result of makingbeneficiaries under the trust nothing more than "a fluctuating body of private individuals",and the gift failed because the necessary element of public benefit was lacking.DAVIES V PERPETUAL TRUSTEE CO (LTD) (1959) 59 SR (NSW) 112; 76 WN279;[1959] AC 439; [1959] 2 WLR 673; [1959] 2 All ER 128(PC). [Discussed in note, 33

ALJ 34.]14. Section of public Gift to schools restricted to children of freemasons .] Held, that agift to schools restricted to the children of freemasons lacks the element of public benefit oradvantage that is necessary in order to secure exemption from estate duty unders 8(5) of theEstate Duty Assessment Act 1914 (Cth) as a gift for "public educational purposes".Discussion of the effect of s 8(8) of the Act in construing the expression "public educationalinstitution" in s 8(5), and the use in the construction of the expression "public educational

institution" in s 8(5) of the interpretation given to the phrase "public educational purposes" inthe law of charitable trusts. Per Dixon CJ, Fullagar and Kitto JJ The words ins 8(5) wouldreceive an interpretation as wide as they properly possess under the head of equity.THOMPSON V COMMISSIONER OF TAXATION (1959) 102 CLR 315; 33 ALJR 384;[1960] ALR 184 (HC).15. Section of public Accommodation for adherents of Christian Science .] Held, that

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if a faith is one to which any member of the public may, if he will, adhere, theclass ofadherents of that faith is to be regarded as a section of the public, so that the confining ofbenefits to that class will not prevent a gift, or a purpose from being charitable. Per curiam By reason of the fact that the Statute of Elizabeth (43 Eliz I c 4) when it refers to the"reliefe of aged impotent and poore people" does not speak of gifts "to" or "for" aged,impotent or poor persons but only of gifts for "reliefe of" those classes, a gif

t to or for thepoor is not charitable unless it is in relief of poor people or, in other words,in relief of theneeds occasioned by their poverty. Accordingly, the questions of freedom of members of thepublic to adhere to the doctrines of Christian Science and whether its adherentswere aconsiderable section of the community were concluded by the finding that there was benefitto the community in the purposes for which premises subject of the litigation were used.CITY OF HAWTHORN V VICTORIAN WELFARE ASSOCIATION [1970] VR 205;(1969) 24 LGRA 289 (Vic Sup Ct FC). [Discussed in note, 44 ALJ 501.]

16. Section of public Land set apart for cemetery for relatives and employees.] Atestator directed his trustees to set apart one acre of ground on his station property for acemetery for the use of his relatives and the station employees and their wivesand children.Held, that this was not a good charitable trust.CHESTERMAN V MITCHELL (1923) 24 SR (NSW) 108; 41 WN 11 (NSW Sup Ct, HarveyJ).17. Section of public Gift to provide scholarships Preference to descendants of namedperson .] A testator devised his residuary estate to the trustees of the Presbyterian Church

of Australia "upon trust to apply the income thereof in perpetuity for the promotion andencouragement of education in NSW in manner hereinafter appearing". The will provided forthe establishment of scholarships to be awarded to students or intending students of anyprimary or secondary school in NSW "provided that in making any such award preferenceshall be given to any lineal descendant or descendants of my late father David Edward andfailing any such descendant to any child or children of a minister or deceased minister of thesaid Presbyterian Church and failing any such child or children to any then pres

ent or thenintending student of Scots College, Bellevue Hill, near Sydney". Held: (1) The particularmeans indicated did not constitute a family trust but was for the benefit of a section of thecommunity and constituted a valid charitable trust. (2) The words "failing any suchdescendant" in the proviso did not refer to a failure of issue of David Edward,but meant thatif there were from time to time descendants of David Edward eligible and willing

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to acceptthe scholarships, they should be preferred.PERMANENT TRUSTEE CO OF NSW LTD V PRESBYTERIAN CHURCH (NSW)PROPERTY TRUST (1946) 64 WN (NSW) 8 (NSW Sup Ct, Roper J). [Discussed in note, 20ALJ 432.]18. Section of public Gift for "the setting up in life" of a boy "leaving theMasonicSchool" .] A testator made an indefinite gift of the income of property to theWorshipfulMaster for the time being of a named Masonic Lodge upon trust "for the advanceme

ntpreferment and benefit of a boy selected by him leaving the Masonic Baulkham Hills Schoolfor Boys ... to be paid in such manner as the said Worshipful Master shall thinkfit for thepurpose of setting up in life the said boy either by furthering his education orputting him intosome trade business or profession". At the dates of the will and of the death ofthe testatoradmission to the school was restricted by the "Regulations for the Government ofthe Craft"to the fatherless or virtually fatherless, but at those dates the "Regulations"were liable to

amendment, and after the death of the testator the relevant "regulation" was amended in sucha way as to make it possible that children who were not poor might be admitted to the school.Held, that the gift was a trust for the relief of poverty, that the possible beneficiariesconstituted a class of the community, and accordingly that the gift was a validcharitabletrust.PERPETUAL TRUSTEE CO (LTD) V FERGUSON (1951) 51 SR (NSW) 256; 68 WN 236(NSW Sup Ct, Sugerman J). [Discussed in note, 25 ALJ 471.]19. Section of public Gift to provide annual educational bursary for apprentice in named

area Gift for bursary for employee of specified company .] A testator divided half hisestate into 20 equal parts and directed that the income from two parts be applied as an annualeducational bursary for an engineering apprentice in the Bundaberg Engineering Districtincluding sugar mills, the terms of the bursary to be in the absolute discretionof acommitttee comprised as directed by the testator. As to two other parts he directed that theannual income be applied as an educational bursary for the benefit of an apprentice or cadetor professional student employed by a specified company to be chosen by the dire

ctors of thecompany, the bursary to be for such purposes and for such time as the directorsshould intheir absolute discretion think fit. Held: (1) The bursary for an apprentice inthe BundabergEngineering District was a valid charitable bequest; (2) The bursary for an employee of thecompany was not a valid charitable bequest.RE EVANS; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (Q) [1957] QSR 345 (QSup Ct FC).

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20. Trust to be performed in foreign country .] A testator, by will handwritten on aprinted form, made a specific bequest of his shares in a home unit company together with thecontents of the unit which those shares entitled him to occupy. He then gave pecuniarylegacies, listed what he described as "my assets" and provided that "the rest ofthe money"should be invested and the interest used as prize money for a musical competition inAustralia for an orchestral work and a song cycle in alternate years. The will c

ontinued: "Ifthe interests are more than 1,000.0.0 thousand a year then a similar price shouldbe madeout for Vienna and should be paid under the same name Paul Lowin Preis under thesameconditions to the best composition from a Viennese or Austrian Composer Price should notbe more than 1,000.0.0 thousand in one go, first to be paid in Australia and whatis moreshould go to Vienna" [sic]. Held: (1) The disposition of "the rest of the money"constituted agift of all the residuary estate remaining after specific gifts. (2) The bequestfor a musical

competition in Australia constituted a good charitable trust. (3) As there was asufficientnexus between the advancement and encouragement of music in Austria and the benefit of asubstantial section of the public of New South Wales, the trust relating to theexcess ofincome of over 1,000 per annum was a valid charitable trust. (4) In respect of the trustproviding for the excess of income over 1,000, the revealed intention of the testator wasthat, whilst the entire trust fund should be retained and administered by the trustee in Newsouth Wales any net excess over 1,000 should be sent to Vienna to be paid to the

winner ofa similar competition conducted there, open only to persons of Austrian birth and who wereAustrian nationals, wherever resident.[[1965] NSWR 1624, varied.]PERPETUAL TRUSTEE CO (LTD) V ROBINS (1967) 85 WN (Pt 1) (NSW) 403; sub nomRE LOWIN; PERPETUAL TRUSTEE CO LTD V ROBINS [1967] 2 NSWR 140 (NSW SupCt CA).21. Trust to be performed in foreign country .] Held: (1) The fact that the purpose of atrust is to be performed wholly outside the jurisdiction and in a foreign stateis of itself nobar to its being a valid charitable trust for a purpose beneficial to the commun

ity generallywithin the spirit and intendment of the preamble of the 43 Eliz 1 c 4. (2) A trust to beperformed in a foreign country will be regarded prima facie as for the public benefit if it isbeneficial to the foreign community and is not inimical to the general concept of legalcharity as understood in our law. Public policy would seem to be one reason whysuch a trustwould not be valid as a charitable trust, and another may lie in the nature of t

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he person in theforeign country to whom the administration is given.RE STONE; PERPETUAL TRUSTEE CO LTD V STONE (1970) 91 WN (NSW) 704 (NSWSup Ct, Helsham J). [Discussed in note, 44 ALJ 558.]22. Trust to be performed in foreign country .] Held, that there is no rule of law that atrust for a wholly foreign purpose cannot be a valid charitable trust accordingto the law ofNew South Wales despite the absence of any public benefit to the local community.Accordingly, a gift of residue in a will to trustees to be held "in trust for th

e Government ofthe State of Israel for the advancement of education in that state" is a valid charitable trust.LANDER V WHITBREAD [1982] 2 NSWLR 530 (NSW Sup Ct, Holland J).23. Gift for preservation of native wild life .] A testatrix provided that the net balance ofher estate should be devoted to the preservation of native wild life (flora andfauna) anddirected that her trustees might carry out her wishes "either by making direct donations toone or more organizations concerned with wild life by promoting the preservationof wildlife or in such other manner as [her] trustees [should] in their absolute discre

tion think fit".On an application for a declaration that this bequest constituted a valid charitable trust, Held:(1) The question whether a particular purpose is for the benefit of the community has to bedetermined as of the time when the question falls to be answered and by reference to relevantmatters existing at that time. (2) The language used in expressing the purposesof the gift andthe objects to be benefited showed more than a mere intention to benefit wild life in vacuo. Itindicated more than a mere concern for animal welfare, and extended to a concernfor the

welfare of the community in saving indigenous wild life from the encroachment ofhumanactivities; and this negatived an argument that no charitable intention was expressed. (3) Thepreservation of "native" wild life was to be interpreted as meaning wild life, flora and fauna,indigenous to Australia. (4) The evidence established that there was a real andsubstantialbenefit to the community in the preservation of Australian wild life in aspectswhich matchedin spirit purposes stated in the preamble to the Charitable Uses Act 1601 (43 Eliz I c 4). Thegift was accordingly for a valid charitable trust.

A-G (NSW) V SAWTELL [1978] 2 NSWLR 200 (NSW Sup Ct, Holland J).[3-5] Divn 3. Relief of Aged, ``Impotent'' and Poor[3] A. Aged24. Gift for aged simpliciter .] The words "aged, impotent and poor people" in thepreamble to the Statute of Charitable Uses 1601 (Imp) (43 Eliz I c 4) are to bereaddisjunctively. Accordingly, a gift simply for the relief of the aged is a good charitable gift.In the Wills of CLARK; PERRY V SALVATION ARMY (VICTORIA) PROPERTY TRUST

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[1957] VR 171; [1957] ALR 538 (Vic Sup Ct, O'Bryan J). [Discussed in note, 31 ALJ 54.]25. Gift for aged simpliciter .] While to make a trust for the aged charitable it need notnecessarily be limited to the aged needy or the aged sick, there must be some element,quality, or characteristic pertaining to the class of aged people from or in respect of whichrelief ought in the public interest to be given. A trust for aged persons simpliciter is thereforenot a charitable trust.

NSW NURSING SERVICE & WELFARE ASSOCIATION FOR CHRISTIAN SCIENTISTSV WILLOUGHBY MUNICIPAL COUNCIL (1968) 88 WN (Pt 1) (NSW) 75; 16 LGRA 65;[1968] 2 NSWR 791 (NSW Land & Valuation Ct).26. For benefit of aged generally Gift of land "for use in providing homes for elderlypeople" .] A testator provided that a property and land should "pass to the Deaconess'Institute controlled by the Church of England in the Sydney Diocese to be used as a home forretired Deaconesses, Nurses or elderly women". He also provided that another parcel of landshould "be given to the Deaconess' Institute of Sydney Diocese for use in providing homes

for elderly people". Held, that each gift was a valid charitable trust. A trustto provide homesfor aged persons can be accepted, without more, as a valid charitable trust. Theaddition ofsome other element such as poverty, need or other adversity is not necessary. Onthe otherhand, an additional limitation, for instance a limitation to the wealthy aged, would destroythe charitable nature of the proposed trust.HILDER V CHURCH OF ENGLAND DEACONESS' INSTITUTION SYDNEY LTD [1973]1 NSWLR 506 (NSW Sup Ct, Street CJ in Eq). [Discussed in note, 48 ALJ 322.]27. For benefit of aged generally Retirement village for aged persons .] Held, that the

housing of aged persons as such is not a public charitable purpose, and, even ifit were, thecategory of persons referred to in the Aged Persons Homes Act 1954 (Cth) is notsuch as maybe legal objects of charity.CHURCH OF ENGLAND PROPERTY TRUST, DIOCESE OF CANBERRA &GOULBURN V IMLAY SHIRE COUNCIL [1971] 2 NSWLR 216; (1971) 25 LGRA 2 (NSWLand & Valuation Ct).28. For benefit of aged generally Trust for erecting and fitting out home foraged bySalvation Army .] A testatrix created a trust "to pay the balance" of the proceeds of thesale of her real and personal property "to the Salvation Army Headquarters in Me

lbourne tobe used in and towards the erection of a home for aged men and women at Stawell". Held:(1) The objects of the gift were aged persons who were in need of help, implyingsuch adegree of poverty as to bring them within the first group of Lord Macnaghten's classificationof charities in Commissioners of Income Tax v Pemsel [1891] AC 531, viz, trustsfor therelief of poverty. The trust was therefore a valid charitable trust for that rea

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son. (2) The trustwas also a valid charitable trust being a gift to the aged. The words "aged, impotent and poorpeople" in the preamble to the Statute of Charitable Uses 1601 (Imp.) (43 Eliz.I c. 4) are tobe read disjunctively.In the Wills of Clark; Perry v Salvation Army (Victoria) Property Trust [1957] VR 171;[1957] ALR 538 (Vic Sup Ct, O'Bryan J). [Discussed in note, 31 ALJ 54.]29. For benefit of aged generally Buildings for housing people of pensionableage .]

The Local Government Act 1960 (WA), s 532(3)(c), provides: "Land is not rateablepropertyif it is land used and occupied exclusively for charitable purposes". The applicant was anon-profit body which administered an area of land and improvements on behalf oftheregistered proprietor, the Baptist Union of Western Australia Inc. Part of the improvementsconsisted of two buildings each being used for housing persons of pensionable age. Residentswere selected from applicants capable of caring for themselves and in need of theaccommodation offered. Residents paid an "in-going donation" of a lump sum on be

ingselected and weekly payments of an amount fixed by the applicant to meet costs ofmanagement. In addition a building was under construction on the land to be usedas a homefor aged persons unable to look after themselves. Held: (1) The relief of the aged is acharitable purpose, without any necessity that those relieved should also be poor. (2) Theland was within the exemption of s 532(3)(c).WEST AUSTRALIAN BAPTIST HOSPITAL & HOMES TRUST INC V CITY OF SOUTHPERTH [1978] WAR 65; (1977) 40 LGRA 411 (WA Sup Ct FC). [Discussed in note, 52 ALJ

41.]30. For benefit of aged of particular locality Gift to "deserving aged people" of certaintowns .] A bequest in the following words, "I give unto the deserving aged people ofKadina, Wallaroo and Moonta the sum of three hundred pounds", is good as a giftfor acharitable purpose.RE STEELE; PUBLIC TRUSTEE V A-G (SA) [1925] SASR 272 (SA Sup Ct, Poole ACJ).31. For benefit of aged of particular religion Accommodation for aged adherents ofChristian Science .] A building belonging to the Victorian Welfare Associationwas

divided into 20 apartments, a guest room and a social room. The apartments wereused foraccommodation at far lower than commercial rates for poor persons being women over 60and men over 65 who were selected by the Association from Christian Scientists andadherents of Christian Science. One apartment was used for a woman over 60 selected by theAssociation from the same group of persons but who was not poor. Her apartment was used

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for providing relief to an aged person. There was benefit to the community in the purposesfor which the premises were used. It was claimed by the Association that the premises wereexempt from rating as being "used exclusively for charitable purposes" within the exemptioncreated by s 251(1)(b)(ix) of the Local Government Act 1958 (Vic). Held: (1) Ifa faith is oneto which any member of the public may, if he will, adhere, the class of adherents of that faithis to be regarded as a section of the public, so that the confining of benefits

to that class willnot prevent a gift, or a purpose from being charitable. (2) The questions of freedom ofmembers of the public to adhere to the doctrines of Christian Science and whether itsadherents were a considerable section of the community were concluded against themunicipality by the finding on case stated that there was benefit to the community in thepurposes for which the premises were used. (3) A gift made in relief of aged persons, in thesense that it is in relief of the needs arising from old age (such as the need for protection

against the dangers and distresses incident to living alone), is charitable unless somelimitation of the class of objects deprives it of that character; and it is notnecessary, in orderthat it should be charitable, that those to benefit should be poor or impotent,as well as aged.(4) The premises were accordingly not ratable.CITY OF HAWTHORN V VICTORIAN WELFARE ASSOCIATION [1970] VR 205;(1969) 24 LGRA 289 (Vic Sup Ct FC). [Discussed in note, 44 ALJ 501.][4] B. ``Impotent''32. Assistance to disabled Gift "to the blind" .] A will contained the following clause:"I give devise and bequeath all my other properties to be disposed of and given

to the blindand their children". Held: (1) There was a gift to the blind and an independentgift to theirchildren. (2) A gift "to the blind" simpliciter is a good charitable gift. (3) Even if the gift tothe children of the blind were not charitable the gift to the blind was validated by the TrustsAct 1915 (Vic), s 79.RE BOND; BRENNAN V A-G (VIC) [1929] VLR 333; (1929) 35 ALR 300 (Vic Sup Ct,Cussen J). [Discussed in note, 3 ALJ 363.]33. Assistance to disabled Gift "to the blind" To Royal Victorian Institute for theBlind .] The Royal Victorian Institute for the Blind is a charitable instituti

on because itsobject is the relief of a substantial class of the impotent.RE INMAN [1965] VR 238 (Vic Sup Ct, Gowans J). [Discussed in article, 47 ALJ 68;and innote, 39 ALJ 237.]34. Assistance to disabled Through asylums or convalescent homes .] A giftupon trustto apply the property "for the purpose of founding endowing or assisting privateinstitutionsor homes in Tasmania or Victoria for the care and treatment of mentally afflicte

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d persons asmy trustees may in their absolute discretion select and to be paid or applied toor for suchobjects or institutions or homes if more than one in such proportions as my trustees maythink proper", and a gift "for the purpose of founding endowing or assisting private homes forthe treatment of sick or convalescent persons in cases where such persons cannotbe treatedin their own homes and it would not be advisable to send or place them in a public institution

asylum or hospital and for the treatment of such persons who may be suffering from ill healthor constitutional weakness and who may desire to avail themselves of such homessubject tothe parties so applying being approved of and of paying such fees as may be fixed by thosehaving control and management of the said homes", Held, both to be valid charitable gifts.[(1909) 5 Tas LR 68 affd on different grounds.]TAYLOR V TAYLOR (1910) 10 CLR 218; 16 ALR 129 (HC).35. Gift for erection of sanatorium .] The residue of the estate of a testator was given"upon trust for the erection and/or benefit of a Sanatorium and/or Hospital in"

a foreigncountry. Held, that in the context of the will, the erection of a hospital or sanatorium was avalid charitable object: (a) the word "sanatorium" must be taken to refer to aninstitutionwhich though not providing all of the facilities generally available at a hospital, provides atleast some form of medical relief to persons in need of treatment, and (b) clearly enough theintention of the testator was not that a building should be erected and no more,but that itshould be erected for use by the inhabitants.KYTHERIAN ASSOCIATION OF QUEENSLAND V SKLAVOS (1958) 101 CLR 56; 32

ALJR 275; [1959] Qd R 282; [1959] ALR 5 (HC). [Discussed in note, 32 ALJ 318.]36. Gift for sanatorium For inebriate retreat .] Held, that the fact that acharge is madefor admission of patients to an inebriate retreat does not make it the less a public charity.A-G (VIC) V M'CARTHY (1886) 12 VLR 535 (Vic Sup Ct FC).37. Gift to existing hospital .] A gift of income was bequeathed by a homoeopathicpractitioner to the Sydney Homoeopathic Hospital to the funds of which he had subscribedduring his lifetime. The hospital was founded to afford gratuitous medical and surgical aidunder the homoeopathic system to sick persons in destitute circumstances and to

others onsuch terms of payment as determined by a Board. From its foundation in 1902 until 1941 thehospital was conducted as a homoeopathic hospital and visited by medical practitioners whopractised their profession in accordance with the principles of homoeopathy. From 1941 to1945 homoeopathetic treatment was given to patients by the matron of the hospital but since1945 no such treatment had been given at the hospital because no homoeopathic pr

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actitionershad sought to have patients admitted. There had always been at least one bed available at thehospital in case a homoeopathic practitioner should desire to have a patient admitted. Thehospital was incorporated under the Public Hospitals Act 1929 (NSW). Held: (1) In theabsence of evidence to the contrary, the court would assume that the object of the gift to thehospital was for the benefit of the community and therefore charitable. (2) As there had not

been such a change in the object or purposes of the hospital as to destroy its identity as itexisted with the institution named by the testator in his will, the gift had notfailed.CONGREGATIONAL UNION (NSW) V THISTLETHWAYTE (1952) 87 CLR 375; 26 ALJ335; [1952] ALR 729 (HC).38. Gift to existing hospital Particularization of purposes of gift for general purposes ofprivate hospital .] Held, that a gift for the purposes of a hospital is primafacie a goodcharitable gift and this presumption was not displaced in this case by the circumstance thatsurpluses were made and used for the purposes of the Sisters of Charity, for wha

tever theSisters might be empowered to do with their general property, the trusts of thewill requiredthem to use the gift for the purposes of the hospital. Held, also, that there was public need forand benefit from the hospital; hence the gift was a good charitable gift. The provision ofmedical facilities does not necessarily fail to be charitable merely because byreason ofexpense they could only be used by persons of some means. To provide, in response to publicneed, medical treatment otherwise inaccessible but in its nature expensive, without any profit

motive, might well be charitable: on the other hand to limit admission to a nursing home tothe rich would not be so. The test is essentially one of public benefit, and indirect as well asdirect benefit enters into the account.[(1966) 84 WN (Pt 1) (NSW) 337; [1966] 2 NSWR 232, affd on this point.]LE CRAS V PERPETUAL TRUSTEE CO LTD (1967) 41 ALJR 213; 68 SR (NSW) 89; 87WN (Pt 2) 53; [1968] ALR 161; [1967] 2 NSWR 706; [1969] 1 AC 514; [1967] 1 All ER915; sub nom RE RESCH'S WILL TRUSTS; LE CRAS V PERPETUAL TRUSTEE CO LTD[1968] 3 WLR 1153 (PC).39. Gift to existing hospital .] A testatrix bequeathed one-half of the income of her

residuary trust fund to the treasurer of St Luke's Hospital "to be used for suchgeneralpurposes in connection with the said hospital as the committee ... may think fit". Thehospital, which was not carried on for private gain, was greatly assisted by publicsubscriptions. The hospital did not accommodate patients unable to pay fees, butit didaccommodate some patients who paid less than their maintenance at the hospital.Held, that

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the gift was a good charitable gift.PERPETUAL TRUSTEE CO (LTD) V ST LUKE'S HOSPITAL (1939) 39 SR (NSW) 408;56 WN 181 (NSW Sup Ct, Nicholas J). [Discussed in note, 13 ALJ 366.]40. Gift to existing hospital .] A testator bequeathed 3,000 to the United Grand Lodge ofFreemasons of Victoria to erect, establish and equip a wing containing one four-bed wardand one two-bed ward at the Freemason's Intermediate Hospital. Held, that the gift was agood charitable gift inasmuch as the hospital existed for the relief of suffering.

RE CHOWN; TEELE V UNIVERSITY OF MELBOURNE [1939] VLR 443; [1939] ALR482 (Vic Sup Ct, Mann CJ).41. Gift to existing hospital .] A testator gave the residue of his propertyto the MaterMisericordiae Private Hospital, an institution conducted by an order of Sistersof Mercy,which received and tended patients for payment, and also administered to and received fortreatment the sick poor who could make no payments. Held, that it was a good charitable giftand that the receipt of the Sister of Mercy in charge of the hospital should bea sufficientdischarge to the trustees.

QUEENSLAND TRUSTEES LTD V GREEN [1911] QSR 105 (Q Sup Ct FC).42. Gift to existing hospital .] By will, EP, who died in 1941, gave the balance of herresiduary estate "for the Church of England in the Diocesan of Adelaide absolutely for thebenefit of the Sunday School Council and a Diocesan Church of England Hospital in equalshares". Her sister, GP, who died in 1958, by will made in the same year gave her residuaryestate "for the Synod of the Church of England in the Diocese of Adelaide Incorporated forthe fund to establish and/or maintain a Church of England Hospital absolutely".Another

sister, VP, died in 1963, and by her will made in 1962 gave her residuary estatein similarterms to the gift of GP. There was no Diocesan Church of England Hospital, although aconvalescent hospital, and homes for the aged which provided nursing attention for inmatesof the homes, were conducted under the auspices of the Church. Held: (1) It waspermissibleto use the will of EP as a guide to the construction of the will of GP, and thewills of EP andGP as a guide to the construction of will of VP, and reading the three wills inthis way theintention of the three testatrices was to create a fund for the establishment of

a new hospital,and not to benefit any of the existing institutions, conducted under the auspices of the Churchof England. (2) The gifts for the creation of such a fund were valid charitablegifts. (3) Uponthe evidence it was not possible to say whether it was practicable for the trusts created by thethree wills to be carried out, and the Synod of the Church of England in the Diocese shouldbe required to indicate whether it was willing to accept the gifts on trust to e

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stablish andmaintain a general Church of England hospital.EXECUTOR TRUSTEE & AGENCY CO OF SA LTD V WARBEY [1971] SASR 255 (SASup Ct, Bray CJ).43. Gift for maternity home for young unmarried women .] Held, applying Taylor vTaylor ( (1910) 10 CLR 218; 16 ALR 129) that the home contemplated by the testator beingin the nature of a hospital from the benefits of which the poor were not excluded, the gift wasa good charitable gift, and on the question of the gift being against public pol

icy as tending toencourage immorality that the test to be applied was whether the existence of ahome wouldbe likely to induce any woman to sacrifice her virtue where she might otherwisenot havedone so. Applying that test, the gift would not tend to encourage immorality, and was,therefore, good.RE WYLD [1912] SALR 190 (SA Sup Ct, Murray J).[5] C. Poor44. General principle Whether relief of poor necessary Relief of sickness .] Povertyis not a necessary qualification in trusts beneficial to the community. The reli

ef of sickness isa sufficient purpose without adding poverty.LE CRAS V PERPETUAL TRUSTEE CO LTD (1967) 41 ALJR 213; 68 SR (NSW) 89; 87WN (Pt 2) 53; [1968] ALR 161; [1967] 2 NSWR 706; [1969] 1 AC 514; [1967] 1 All ER915; sub nom RE RESCH'S WILL TRUSTS; LE CRAS V PERPETUAL TRUSTEE CO LTD[1968] 3 WLR 1153 (PC).45. For poor generally Gift to executors "to be distributed to the poor" .]A gift by willof the residue of the testator's estate to his executors "to be distributed to the poor" is a goodcharitable gift.IN THE WILL OF STACK; O'FLAHERTY V TOMLINSON (1902) 24 ALT 15; 8 ALR 129

(Vic Sup Ct, Hodges J).46. For poor generally Bequest of sum "to be employed in relieving cases of need anddistress and in assisting persons in indigent circumstances and in particular inassisting andrelieving persons adversely affected by the effects of" World War II .] A testatorbequeathed the residue of his estate to the funds of a religious body "to be employed by themin relieving cases of need and distress and in assisting persons in indigent circumstances andin particular (but not exclusively or in any way that shall limit their discretion) in assisting

and relieving persons who have been or shall be adversely affected by the effects of" WorldWar II. Held, that the bequest was a valid charitable bequest. The clause beginning with "andin particular" should be construed as merely giving a special example of personsin need or indistress and of persons in indigent circumstances; semble, if that clause stoodalone, it wouldgo beyond a valid charitable bequest.MUIR V OPEN BRETHREN (1956) 96 CLR 166; 30 ALJ 171; [1956] ALR 419 (HC).

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47. For poor generally Gift "for distribution to some mission to poor and needy" .] Atestatrix gave to a legatee "all moneys from the Savings Bank or S C Ward & Co who holdsshares and debentures, etc, also all furniture goods and chattels owned by me atmy death forher own use and what is left at her death for distribution to some mission to poor and needyat her discretion". Held, that the gift over of what was left at the death of the legatee was avalid charitable bequest, and the legatee had the power to select or appoint the

particularmission to benefit, although her power of selection or appointment was limited to a mission"to poor and needy".In the Estate of Ward [1957] SASR 125 (SA Sup Ct, Ross J).48. For poor of particular description Gift "for the benefit of the orphans whose fathersfought with the Russian Army against Germany and Japan" in World War II .] A testatorafter providing for the payment of annuities, directed that the whole of the netincome fromhis estate be paid at least yearly to the Armenian General Benevolent Union, a body

incorporated in Switzerland and having its permanent administrative seat in NewYork, USA.This body was directed to pay the annuities and to "use the balance if any of the said incomefor the benefit of the orphans whose fathers fought with the Russian Army against Germanyand Japan in the World War which ended last year". If the union so desired it was authorizedto call for the transfer to it of the assets of the estate, and directions weregiven as to themode of investment of such assets and for the setting up of a fund called the "PermanentTrust Fund" which fund the union was to stand possessed of upon the trusts decla

red by thewill. Held, that there was a valid charitable trust for the children of fathersof the Armenianrace who died on active service with the Russian army in the world war against Germany andJapan which ended in 1945, if the children were under 21 years of age at the date of thetestator's death and in need of assistance or protection and, per Williams, Webband Kitto JJ,such children would remain orphans so long as they continued in need of assistance, whetherthey had attained 21 or not.ARMENIAN GENERAL BENEVOLENT UNION V UNION TRUSTEE CO OF

AUSTRALIA LTD (1952) 87 CLR 597; 26 ALJ 392; sub nom RE BALAKIAN; ARMENIANGENERAL BENEVOLENT UNION V ANDREASSION [1952] ALR 781 (HC).49. For poor of particular description Gift for amelioration of condition ofdependants ofany member or ex-member of naval, military or air forces .] A testator gave the wholebalance of his residuary estate to the Roman Catholic Archbishop of Melbourne tobedistributed by him at discretion for any one or more of specified purposes, including "the

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amelioration of the condition of the dependants of any member or ex-member of HerMajesty's naval military or air forces or the naval military or air forces of theCommonwealth". Held: (1) The clause should not be read as if "in Victoria" or "in Australia"appeared after the word "dependants". It followed that if the clause was valid the trustproperty was not exempted from estate duty by s 8(5) of the Estate Duty Assessment Act1914 (Cth). (2) The clause was valid for the following reasons: (a) it was confi

ned to thosewho were in need of assistance and were dependants of the persons in the classesspecified inthe clause and, therefore, the purpose which the clause expressed was the reliefof poverty;(b) if on its proper construction the clause applied to all such dependants whether in need ofassistance or not, its operation was confined by s 131 of the Property Law Act 1958 (Vic) tothe amelioration of the condition of necessitous dependants; (c) the clause expressedpurposes which included a charitable purpose independently of the relief of poverty, namely

that of ameliorating the condition of the dependants of the naval military or air forces of theCommonwealth, which was beneficial to the community and was within the fourth class ofthe classification in Pemsel's Case [1891] AC 531, at p 583; (d) if the inclusion in the clauseof the reference to the dependants of members or ex-members of naval military orair forcesof Her Majesty other than those of the Commonwealth had the result that the trust propertycould be applied in a manner going beyond a valid charitable purpose of the kindmentionedin (c), s 131 operated to confine the application of the trust property, which t

he clausepermitted, to its application for the charitable purpose mentioned in (c).[(1970) 17 FLR 39; [1970] VR 795; [1971] ALR 139; 1 ATR 820 affd.]DOWNING V COMMISSIONER OF TAXATION (CTH) (1971) 125 CLR 185; 45 ALJR513; 2 ATR 472; 71 ATC 4164; [1971] AEGR 66,067(HC). [Discussed in note, 9 UQLJ118.]50. For poor of particular description Gift for "the setting up in life" of boy "leaving theMasonic School" .] A testator made an indefinite gift of the income of property to theWorshipful Master for the time being of a named Masonic Lodge upon trust "for theadvancement preferment and benefit of a boy selected by him leaving the Masonic

BaulkhamHills School for Boys ... to be paid in such manner as the said Worshipful Master shall thinkfit for the purpose of setting up in life the said boy either by furthering hiseducation orputting him into some trade business or profession". At the dates of the will and of the deathof the testator admission to the school was restricted by the "Regulations for the Governmentof the Craft" to the fatherless or virtually fatherless, but at those dates the

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"Regulations" wereliable to amendment, and after the death of the testator the relevant "regulation" wasamended in such a way as to make it possible that children who were not poor might beadmitted to the school. Held, that the gift was a trust for the relief of poverty, that thepossible beneficiaries constituted a class of the community, and accordingly that the gift wasa valid charitable trust.PERPETUAL TRUSTEE CO (LTD) V FERGUSON (1951) 51 SR (NSW) 256; 68 WN 236

(NSW Sup Ct, Sugerman J). [Discussed in note, 25 ALJ 471.]51. For poor of particular description Gift to pay passage money to immigrants .] Atestatrix directed the expenditure of income of her estate "in paying the passage money toVictoria of immigrants of good character" from her native town in England, suchimmigrantsto be selected by a certain person. Held, that a valid charitable trust had beencreated, as itclearly appeared that the bequest was intended for the relief of poverty.RE WALLACE; TRUSTEES EXECUTORS & AGENCY CO LTD V FATT [1908] VLR636; (1908) 30 ALT 100; 14 ALR 502 (Vic Sup Ct, Hood J).52. For poor of particular description Ex-servicemen being "protestants of Sc

ottish orBritish descent" .] The testatrix left her estate upon trust after the death of an annuitant toapply a third "at the discretion of my trustee for the benefit of an ex-member or ex-membersof the Australian Army, Naval or Air Forces to be selected by my trustee in hisabsolutediscretion. And I direct my trustee that in making such selection as aforesaid he shall haveregard to the following matters: (i) The selected ex-member or ex-members of theAustralianArmy, Naval or Air Forces shall be a protestant of Scottish or British descent;(ii) The

selected ex-member or ex-members of the Australian Army, Naval or Air Forces shall in theopinion of my trustee be in genuine need of financial assistance, and in particular shall ormay require such assistance in order to pay a balance of purchase money owing onhis ortheir home or farm property or to repay a mortgage on such home or farm property". Held:(1) The dominant intention of the gift was to relieve poverty and the language of the giftwould embrace cases of poverty. (2) The element of public benefit necessary fora validcharitable gift was present. (3) The language of the gift would embrace cases ot

her thanthose of poverty and went beyond relief of poverty in a charitable sense. (4) The expression"in genuine need of financial assistance" clearly indicated a charitable intention and the giftwas saved from invalidity.RE GILLESPIE [1965] VR 402 (Vic Sup Ct, Little J). [Discussed in note, 39 ALJ 237.]53. For poor of particular description Gift to provide relief to poor and needy

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Freemasons, their widows and children .] A testator made a gift to the Fund ofBenevolence of Freemasons, used in making annual grants to charitable institutions in SouthAustralia, in providing relief for poor and needy Freemasons and poor and needywidows andchildren of deceased Freemasons. It was not contended that the order of Freemasons was acharitable society. Held, that the fund was a charitable institution.RE VOSZ; PUBLIC TRUSTEE V STEELE [1926] SASR 218 (SA Sup Ct, Murray CJ).54. For poor of particular description Trust to found or provide home for poor

Freemasons of particular Lodge .] A testator gave a fund upon trust "to foundor providethereout a home for poor and distressed Freemasons who shall be members or pastmembersof the United Tradesmen Lodge No 4 in the constitution of South Australia". Held: (1) Whilethere was no public benefit in the trust, the general rule stipulating public benefit as acriterion of a valid charitable trust did not apply to trusts for the relief ofpoverty where thebeneficiaries were not particularized but were merely a particular description of poor people.(2) The trust was a valid charitable trust.

RE HILDITCH (1985) 39 SASR 469 (SA Sup Ct FC).55. For poor of particular description Poor of particular locality Gift forrelief ofpoverty in town in Germany .] A testator gave the income of two funds to the priest for thetime being at Lewin in Germany for distribution during the winter months amongstsuchchildren at Lewin as he should in his discretion approve, and for providing comforts andclothing for the deserving children attending school during the winter months, in his absolutediscretion; and he gave the income of a fund to the mayor of Lewin for the timebeing, to

provide and maintain a soup kitchen for the poor and needy. Held, that each bequest wasvalid according to the law of Queensland.RE MITCHNER; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (CTH) [NO 2][1922] QSR 252 (Q Sup Ct FC).56. For poor of particular description Poor of particular locality Gift forrelief ofdistress in Europe .] A testator left his residuary estate upon trust "for therelief of distressin Europe in the manner indicated by the pastor for the time being of the Lutheran Church,Eastern Hill". Held, that the gift of residue constituted a valid charitable trust.

RE PIEPER; TRUSTEES EXECUTORS & AGENCY CO LTD V A-G (VIC) [1951] VLR42; [1951] ALR 64 (Vic Sup Ct, Smith J). [Discussed in note, 25 ALJ 471.]57. For poor of particular description Poor of particular occupation Gift for "oldmembers of 37th Battalion" .] A testatrix made a bequest of a small annuity inperpetuityto the Returned Sailors, Soldiers and Airmen's Imperial League "to be used as far as possible,as a special gift to old members of the 37th Battalion". Held, that age alone isa sufficient

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qualification to constitute a good charitable gift; therefore the gift should beupheld. It mightalso be upheld by reason of the smallness of the amount given as a gift to the poor.RE LITCHFIELD; PUBLIC TRUSTEE V MILLETT (1961) 2 FLR 454; sub nom RELITCHFIELD [1961] ALR 750 (NT Sup Ct, Joske J).58. For poor of particular description Poor relations Gift to "next of kin... in poor andneedy circumstances" .] A testatrix provided that income from her estate should beaccumulated until 21 years from the death of the last survivor of her children a

nd that thecapital should then go to her female grandchildren, or, in default, to her malegrandchildrenthen surviving. If "at the expiration of the period of accumulation" there werenograndchildren surviving, the trustees were to ascertain "who of my next of kin (not being nextof kin on the side of my late husband) in whatever degree are in poor and needycircumstances and upon such next of kin being ascertained" the trustees were toconvert theassets and distribute the proceeds equally between such next of kin. In proceedings in 1930the court held that, by s 31 of the Conveyancing Act 1919 (NSW) the accumulation

ofincome directed by the deceased would cease 21 years after her death and that the incomedirected to be accumulated thereafter was undisposed of by the will and would pass to thenext of kin as on an intestacy. The last of the deceased's children died on 2 July 1971. Therewere female and male grandchildren surviving. Held: (1) No acceleration of giftsin a willlimited to take effect at the conclusion of an invalid period of accumulation ofincome isbrought about by reason of the invalidity of the period and such gifts will nottake effect until

the expiry of the period even though invalid, with the result that the gifts tograndchildrenwere not accelerated to 21 years from the death of the deceased. (2) The words "next of kin"in the gift over meant "kinsmen" or "relatives" and not statutory next of kin and this gift wasintended to be a gift to the relations in poor and needy circumstances of the testatrix(excluding relations of her husband), and as "poor relations" is a well known concept in thelaw the gift was a valid charitable trust and not void for uncertainty. (3) Therelevant date forthe application of the modern rule against perpetuities to charitable trusts is

the date uponwhich the trust property becomes devoted to the charitable purpose, not the dateupon whichthe property will vest in the persons chosen as the means of giving effect to that purpose, andaccordingly the trust for the poor relations was not to arise only when the poorrelations wereascertained but when the contingency of having no surviving grandchildren occurred and thetrust did not offend the rule against perpetuities.

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r owndiscretion" and free from any ecclesiastical control .] A testator gave the income from ashare of his residuary estate to "the Presiding Sister for the time being of theChurch ofEngland Deaconesses' Home at Sale for so long as the Order of Deaconesses at Salecontinues to exist as a charitable and religious organization, such income to bedealt with bysuch Presiding Sister entirely at her own discretion and free from any control by the Bishop

of Sale or any other ecclesiastical authority". The work carried on by the deaconesses wasreligious and charitable and, by their constitution, they were subject to control as to temporalmatters by the ecclesiastical authorities, but it did not appear how far the authorities hadexercised such control. Held: (1) The gift was to persons in succession as presiding sisters ofthe organization, that the Presiding Sister's discretion was limited to dealingwith the incomewithin the charitable and religious purposes with which the deaconesses' work wasconcerned, and that the bequest was a good charitable gift for so long as the or

ganizationcontinued to exist as a charitable and religious organization. (2) Although theecclesiasticalauthorities might make it impossible for the Presiding Sister to apply the moneyentirely ather own discretion, the trustees were not bound to inquire as to this.RE A'BECKETT; ALLARD V LAMBERT [1941] VLR 283; [1941] ALR 332 (Vic Sup Ct,Gavan Duffy J).62. Gift to "any deserving Roman Catholic institution" .] A testator by a codicil to his willleft portion of his estate to his trustees upon trust "at their discretion to pay the same to anydeserving Roman Catholic institution". Held: (1) The trust failed for uncertaint

y. (2) Thewords used by the testator did not create a charitable trust.RE BOLAND; BOLAND V BOLAND [1950] QSR 45 (Q Sup Ct FC).63. Gift for masses .] Held, that the Statute of Chantries (1 Edw VI c 14) isnot in force inthe Australian States and consequently a gift for masses for the repose of the soul of aparticular person is not a gift for a superstitious use. Such a gift is charitable, and therefore isnot void as a perpetuity.[[1917] VLR 112 revd.]NELAN V DOWNES (1917) 23 CLR 546; 23 ALR 354; sub nom IN THE WILL OFCHILDS; NELAN V DOWNES [1917] VLR 621 (HC).

64. Gift for masses .] A legacy for masses for the testator's soul is not void in New SouthWales as being a superstitious use.RE HARNETT; CONDON V HARNETT (1907) 7 SR (NSW) 463; 24 WN 104 (NSW SupCt, Simpson CJ in Eq).RE KEENAN; FORD V KEENAN (1913) 30 WN (NSW) 214 (NSW Sup Ct, Simpson CJ inEq). [Discussed in note, 12 ALJ 468.]65. Gift for masses .] A testator disposed of his estate to his son "subjectto the followingconditions", and after making provision for his widow his will stipulated: "My e

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xecutors alsowill make provision that one mass shall be said for the repose of my soul once every weekuntil they hand over the property to my son, when he attains the age of thirty years, when heshall take the place of the executors and have the masses said weekly for ever,and these arethe conditions I make". Held, that the direction in the will to make provision for the massescreated a valid charitable trust and that in effect it imposed a charge upon thetestator's

property.THOMSON V WHITTARD (1925) 25 SR (NSW) 430; 42 WN 132 (NSW Sup Ct, LongInnes J).66. Gift for masses .] A gift for saying masses is a valid charitable gift.PUBLIC TRUSTEE V SMITH (1944) 44 SR (NSW) 348; 61 WN 206 (NSW Sup Ct, RoperJ).67. Gift for masses .] A bequest to a Roman Catholic priest for masses for the testator'ssoul is not void as being for a superstitious use. The 1 Edw VI c 14 (Imp), being passed in theinterests of the Reforming Church, could not reasonably be applied to the Colonyof NewSouth Wales at the time of the passing of the Australian Courts Act 1828 (9 Geo

IV c 83),and was, therefore, not in force in Victoria.In the Will of PURCELL (1895) 21 VLR 249; 17 ALT 67; 1 ALR 57 (Vic Sup Ct, Hodges, J).68. Gift for masses Marshalling assets in favour of charitable gift .] A testatrixappointed an executor, directed payment of her debts and testamentary expenses,disposed ofall her realty by two specific devises, and stipulated that: "I want 300 for masses to be saidand sent from time to time to monasteries and priests (see file hanging up in wardrobe). Alsoremember to have some masses said for my dear father, mother and darling sister

Mary aswell as myself ... My brother TMB can pay for those masses out of his rents as he thinks fit ...It may take two years to have them all said or more but do not forget my dear people. Havenovena of masses said at Sacred Heart Monastery Kensington Sydney also St Joseph's OxfordPark Brisbane". Held, that the will created a good precatory trust for the performance ofmasses, but no charge upon the realty in respect of such trust. A testator appointed anexecutor, directed payment of his debts and testamentary expenses, devised a portion of his

real estate to a devisee who predeceased him, and stipulated that: "I want 500 tobe paid outof my estate for masses to be said by priests and monasteries from time to time". Held, thatthe will created a good precatory trust. In order to obviate the expense of settling a scheme,the court directed that the times and places of the performance of masses provided for byboth trusts should be left in the discretion of the common executor of both wills. Held,

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further, that a gift for masses is a good charitable gift, and that in Queensland assets may bemarshalled in favour of such a gift.RE BYRNE'S WILL; BYRNE V BYRNE [1938] QSR 346 (Q Sup Ct FC). [Discussed innote, 12 ALJ 299.]69. Religious buildings Community village for aged .] The Local GovernmentAct1919 (NSW), s 132(1)(d), exempts land from liability to rates where it belongs to any "publiccharity" and is used by and for the purposes of the charity. The Presbyterian Church (New

South Wales) Property Trust was incorporated under the Presbyterian Church (NewSouthWales) Property Trust Act 1936, as amended by Acts of similar name of 1956 and 1959. By s9 of the principal Act all property in New South Wales of the Presbyterian Church ofAustralia was vested in the trust to be dealt with, subject to any express trust, on the termsand with the powers of the Act. Under s 14 the General Assembly of the Church might givethe Trustees (constituting the Trust) directions with respect to property held by them. TheTrust was the registered proprietor of land on which were erected a number of ho

me unitsoccupied by aged persons, each of whom paid a weekly service fee and might havedonated asum of money. Neither religious creed nor poverty was a qualification for occupation of aunit. The project was conducted by the Social Services Department of the Church.The Landand Valuation Court held that the land was exempted from liability for rates under s132(1)(d) of the Local Government Act, having found that maintenance of the homewasconducive to the advancement of religion. On appeal by stated case, Held: (1) The Land and

Valuation Court had not made any error of law in so construing the Act as to hold that theland was held by the Trust for the purposes of the Presbyterian Church. The manifestintention of the Act regarded as a whole was decisive in this regard, and it wasto be impliedthat the Trust could use the land only for purposes which were those of the Church. (2) Thetrial judge was entitled to conclude that the Presbyterian Church was an organization whosemain purpose was the advancement of religion, although it had incidental and ancillarypurposes of a non-charitable kind. If a body holds property on trust for purpose

s of that kindit is proper to describe it as a public charity. (3) The land was being used bythe Trust as apublic charity for the purposes thereof, and the appeal must be dismissed.[[1977] 1 NSWLR 620; (1977) 35 LGRA 201, affd.]PRESBYTERIAN CHURCH (NEW SOUTH WALES) PROPERTY TRUST V RYDEMUNICIPAL COUNCIL [1978] 2 NSWLR 387; sub nom RYDE MUNICIPAL COUNCIL VPRESBYTERIAN CHURCH (NSW) PROPERTY TRUST (1978) 38 LGRA 199 (NSW SupCt CA).70. Religious buildings Extensions .] A testator left his residuary estate

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to five namedchurches "in and for the building of extensions to the said churches and chapels". He directedthat portion of this residuary gift in each case be spent on a new high altar reredos. In at leasttwo cases, the churches named occupied the whole of the site on which they werebuilt andextensions, in the literal sense, were not possible. Also as far as the gifts for the reredos wereconcerned, in at least one church it would be impracticable to comply with the testator's

direction. Held: (1) In construing the word "extensions" the court should take intoconsideration surrounding relevant circumstances including the fact that the testator took agreat interest in the churches in question and was aware of the extent of the church buildingsin relation to their respective sites. (2) In the will, the word "extensions" covered alterations,renovations, restorations or additions to the fabric of the church, either internally orexternally. (3) Even if the direction concerning the high altar reredos might not be capable ofbeing implemented, each church was entitled to its full share of residue and mig

ht use themoney for some purpose similar to the purpose the testator had in mind.RE BECK; HAFFENDEN V DOUGLASS [1967] 2 NSWR 91 (NSW Sup Ct, Hardie J).71. Religious buildings Building used for residence of priest .] A buildingerected by areligious body as a convenient residence for priests who have to minister in a particularchurch can be said to be held upon a trust for the advancement of religion or for otherpurposes beneficial to the community.[Affd on other grounds by HC see (1920) 28 CLR 203; 21 SR (NSW) 113; 37 WN 192; 5LGR 90; 27 ALR 47.]

SYDNEY MUNICIPAL COUNCIL V KELLY (1920) 20 SR (NSW) 107; 37 WN 22; 5 LGR60 (NSW Sup Ct, Street CJ in Eq).72. Religious buildings Proposed rebuilding of church fabric Church window.] Atestator, after a number of bequests, directed the balance of all money to be given to StAndrew's Cathedral chapter for a new cathedral when they should build, and for awindow.There was no general charitable intention disclosed by the will. There was evidence thatproposals for rebuilding the cathedral had been considered, but nothing was definitelycontemplated, and it was quite uncertain what period of time would elapse before

any suchproposals would be carried out. Held, that the first part of the trust, for thenew cathedral,failed, but that the second part of the trust for a window, was a valid charitable gift, and thata moiety of the fund should be given to the chapter for this object.MUIR V ARCHDALL (1918) 19 SR (NSW) 10; 36 WN 4 (NSW Sup Ct, Harvey J).73. Religious buildings Gift for erection of church .] A gift "to the trustees of thePresbyterian Church at Sale" to be applied (without any limitation of time) in b

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uilding achurch, but solely on condition that it should be built in a particular positionon a particularpiece of land, with a proviso that otherwise the gift should lapse into residue,is not a goodbequest to a charity. The condition is not a condition subsequent.RE MACLACHLAN; MACLACHLAN V CAMPBELL (1900) 26 VLR 548; 22 ALT 121; 6ALR 243 (Vic Sup Ct, Hood J).74. Religious buildings Religious retreats .] The Local Government Act 1958(Vic), s251(1)(b) excludes from ratable property land used exclusively for "charitable p

urposes".The plaintiff's land was occupied and used by a religious order which conductedaretreat-house on land within the defendant's municipal district. The plaintiff sought adeclaration that this land was not ratable because it was used for a charitablepurpose,namely, the advancement of religion. The activities at the retreat-house consisted principallyof the conduct of retreats during which laymen resided upon the premises for short periods,engaged in prayer and meditation, and attended services and lectures. Held: (1)When the Act

grants exemptions from rating if land is used for defined purposes, the purposesreferred tomust be the purposes of the occupier, to be determined by a consideration andcharacterization of what the occupier does or authorizes or permits upon the land. (2) Theconduct of retreats on the plaintiff's land fell within the meaning of the phrase "theadvancement of religion" so that the land was used for charitable purposes and thus notratable.ASSOCIATION OF FRANCISCAN ORDER OF FRIARS MINOR V CITY OF KEW [1967]VR 732; (1967) 30 LGRA 384 (Vic Sup Ct, Lush J). [Discussed in note, 42 ALJ 22.]

75. Religious buildings Gift for gallery, organ, seating and bell at specified church .]The testator gave out of residuary estate 750 for the erection at Hendon of a Church ofEngland and the providing of a gallery, organ, seating accommodation, and a bell. Held, agood bequest, and that if it was found that the amount of the bequest was insufficient to builda church strictly in accordance with the directions given by the testator, the court would inproper proceedings direct a scheme cy-pres.RE MITCHNER; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (CTH) [1922] QSR39 (Q Sup Ct FC).

76. Religious buildings Structures embellishing shelter shed at cemetery Personalmemorial included .] A testator directed his trustees to stand possessed of 1500, part ofhis residuary trust funds, "upon trust to pay the same to the trustees for the time being of theGeneral Cemetery at Warwick for the following purposes: Firstly in erecting asheltershed of brick or like material at the said cemetery such shelter shed to containin the left

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hand wing thereof a marble monument with an emblem of a simple marble cross thereon, thesaid monument to be surrounded with iron railings and to be inscribed as follows: `Thisshelter shed is the gift of William Mitchner for the benefit of the Public. BornAugust 2nd1841, died .' Secondly, in providing within the shelter shed a suitable vault to contain mybody. Thirdly, in containing a bust in plaster of myself to be placed upon or near the saidvault. Fourthly, in providing the said shelter shed with appropriate steeple, be

ll, and belfry.And I declare that of the said sum of 1500 the sum of ((c))150 shall be expendedby the saidtrustees of the Warwick Cemetery in the erection of the said vault and in the purchase of thesaid bust. And that they shall expend not less than 100 or more than ((c))150 inthe purchaseof the said bell. And that they shall retain and invest the sum of 200 and applythe incomethereof in and towards the maintenance of the said shelter shed vault and bust".Held, the200 was not bequeathed as a separate gift, but was part of the 1500, and that thegift was

valid. The sum of 1500 was insufficient for the purpose of carrying out the objects of thebequests in full, but those objects could be carried out in a modified form. Held, that as thewill showed a general charitable intention to have certain structures erected and maintainedand if the money appropriated to those purposes was insufficient to enable effect to be givento the general intention mod et forma, the general intention should be carried out, althoughthe particular mode of carrying it out prescribed by the testator might prove impracticable.RE MITCHNER; UNION TRUSTEE CO OF AUSTRALIA LTD V A-G (CTH) [1922] QSR

39 (Q Sup Ct FC).77. Religious denominations, associations and congregations Gift to Sydney Society ofthe New Church .] A testator bequeathed to the Sydney Society of the New Churchincome in perpetuity and directed his trustees to apply 40 per cent for church purposes and60 per cent for establishing lending libraries in such country towns as they should approveand that they should have the right to cause an inspection of the books, recordsand accountsof the institution with respect to its use of the gift. All four objects of theSociety were

religious. Its articles of association empowered the Society to circulate the theological worksof a named author and other specified religious works and writings. There was evidence thatthe Society maintained a church in Sydney where the rites of the church were performed andservices conducted which, inferentially, were available to the public generally.The activitiesof the Society were not confined to benefiting its members. Held, that the giftto the Society

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was a valid charitable gift.CONGREGATIONAL UNION (NSW) V THISTLETHWAYTE (1952) 87 CLR 375; 26 ALJ335; [1952] ALR 729 (HC).78. Religious denominations, associations and congregations Gift to CongregationalUnion of New South Wales .] The fundamental purpose of the Congregational Union ofNew South Wales was the advancement of religion. The Union could create, maintain andimprove educational, religious and philanthropic agencies only to the extent towhich such

agencies were conducive to the achievement of that purpose. The Union's other object was topreserve civil liberty so that congregationalists might worship according to their religiousbeliefs. Held, that gifts of income to be applied by the committe of the Union for the benefitof the Union as the committee should think proper were valid charitable gifts.CONGREGATIONAL UNION (NSW) V THISTLETHWAYTE (1952) 87 CLR 375; 26 ALJ335; [1952] ALR 729 (HC).79. Religious denominations, associations and congregations Religious denominations,associations and congregations Gift to Roman Catholic religious orders .] The testator

devised to the Abbot of Mount Malleray, Ireland, or his successors, land in NewSouthWales, to be held by him and his successors in trust for the religious order ofCistercians, andin the event of the offer not being accepted, he devised the land to the Prior of theRedemptorist Fathers, of Waratah, NSW, or his successors, in trust for the monksof theorder of Our Holy Redeemer. The testator also ordered that the same property could never besold, and must always remain the property of the Roman Catholic Church. Held: (1) Thetestator intended to create a perpetuity, and did not intend the land to become

the personalproperty of the individual members of the religious orders at the time of his death. (2) A giftof property to a voluntary association may be valid as a charitable gift, if thecourt on inquiryfinds that the association exists to carry on and is carrying out charitable works. (3) Applyingthis test the gift to the community of the Cistercian order was not, and that the gift to theRedemptorist order was, a good charitable trust.GLEESON V PHELAN (1914) 15 SR (NSW) 30; 32 WN 2 (NSW Sup Ct, Harvey J).80. Religious denominations, associations and congregations Gift to three churches .]

A testatrix gave the residue of her estate to be divided between the churches ofthreedifferent denominations at Goulburn, and declared that the legacies should be applied to suchpurposes as indicated "nominators", respectively representing those churches, should as tothe share of each church in their absolute discretion think fit. Held, that thegifts to thenamed churches were gifts to religious institutions for religious purposes and,applying the

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benignant rule of construction, were valid charitable gifts.RE PRICE; PRICE V CHURCH OF ENGLAND PROPERTY TRUST DIOCESE OFGOULBURN (1935) 35 SR (NSW) 444; 52 WN 139 (NSW Sup Ct, Long Innes CJ in Eq).81. Religious denominations, associations and congregations Gift of income toAdelaideHebrew Congregation in perpetuity .] A testator gave all his freehold properties (subjectto a life interest in favour of his wife) upon trust to establish the "M de Vedas PerpetualSynagogue Fund" and to pay out of the net income arising the cost of administering the fund

and the balance "to the Adelaide Hebrew Congregation in perpetuity". The Adelaide HebrewCongregation was an unincorporated association representing the orthodox Jewishcongregation in the State of South Australia. Its main concerns were the religious andeducational needs of adherents of the Jewish faith. Held: (1) The gift was not agift to theindividual members of the Adelaide Hebrew Congregation. (2) The subject matter of the giftconsisted of an equitable right, in perpetuity, to annual payments of the net income of theFund after deducting the administrative expenses referred to in the will, with the intention

that the corpus should remain in the hands of the testator's trustee. (3) The gift was for thepurposes of the work of the Adelaide Hebrew Congregation, those purposes were, at thematerial time, either religious or educational, and the gift was therefore a valid charitablegift.RE DE VEDAS [1971] SASR 169 (SA Sup Ct, Wells J).82. Religious denominations, associations and congregations Gift to SalvationArmy forits work .] A testator left the income of his residuary estate to the Salvation Army for itswork in part of Tasmania. As set forth in the Salvation Army (Tasmania) Property

Trust Act1930 (Tas), the objects of the Salvation Army besides religious work included "the social,temporal, and moral welfare of ... persons who [are] destitute or vicious or feeble-minded ...and other charitable purposes". The Act by s 9(2) gave a power to vary trusts. Held, that therewas a good charitable trust because (a) the objects must be read, not in isolation, but, as awhole, and therefore did not include, eg, the temporal welfare of the vicious rich; and (b) thegift must be construed as a gift for the work as it existed, and, that being charitable, the

power to vary trusts could not be used to apply the gift to non-charitable purposes.RE FIELD; TASMANIAN PERMANENT EXECUTORS & TRUSTEES ASSOCIATIONLTD V SALVATION ARMY (TASMANIA) PROPERTY TRUST [1951] Tas SR 16 (TasSup Ct, Green J).83. Support of church purposes Gift for "diocesan purposes" "In support ofa church".] A testatrix made bequests to the Anglican Bishop for the time being of theDiocese ofGrafton and Armidale to be used respectively "for diocesan purposes" and "for di

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ocesanpurposes generally". She also bequeathed an annual sum to the Bishop to be used"in supportof" an indicated Anglican church. Held: (1) The discretion vested in the Bishoptrustee mustbe exercised within the scope of diocesan purposes proper, that every diocesan purposeproper was a religious purpose and charitable in the legal sense, and that the gifts to be usedfor the purposes of the bequests were, therefore, valid. (2) The gift of an annual sum "in

support of" the indicated church was a trust for a religious purpose and was valid.RE MACGREGOR; THOMPSON V ASHTON (1932) 32 SR (NSW) 483; 49 WN 179 (NSWSup Ct, Long Innes J).84. Support of church purposes Gift "to Roman Catholic Priest for Church purposes inParish" .] A testator gave the whole of his property to "the Roman Catholic Priest for thetime being in charge of the Parish of Casino to be used for such Church purposesin theCasino Parish as he shall in his absolute unrestricted and unlimited discretiondetermine".Held: (1) Whether the expression "Church purposes in the Casino Parish" should b

econstrued either generically or for the purposes of the actual edifices of thatnature in thatparish, the gift was a valid charitable gift. (2) Assuming the expression "Church purposes inthe Casino Parish" should be read as "the purposes of the Roman Catholic Church"or "thepurposes of the Roman Catholic Churches now, or hereafter to be situate", in that parish, thepurposes in question were religious purposes which, in view of the absence of acontext tothe contrary in the will, should be read as charitable religious purposes; and the gift,

therefore, would be a valid charitable gift.RE MORONEY; MAGUIRE V REILLY (1939) 39 SR (NSW) 249; 56 WN 105 (NSW SupCt, Long Innes CJ in Eq). [Discussed in note, 13 ALJ 233.]85. Support of church purposes Gift to Archbishop "for the assistance of poorparishes" .] A testatrix bequeathed one-half of the income of her residuary trust fund to the AnglicanArchbishop of Sydney "for the assistance of such poor parish or parishes as thesaidArchbishop in his uncontrollable discretion may think fit". Held, a good charitable gift.PERPETUAL TRUSTEE CO (LTD) V ST LUKE'S HOSPITAL (1939) 39 SR (NSW) 408;56 WN 181 (NSW Sup Ct, Nicholas J). [Discussed in note, 13 ALJ 366.]

86. Support of church purposes Gift to "trustees of Roman Catholic Church inTasmania For church purposes in diocese of Launceston" .] A testator bequeathed money"upontrust to pay the same to the trustees of the Roman Catholic Church in Tasmania,to be usedfor church purposes in the diocese of Launceston". Held, that the bequest was agoodcharitable gift.RE HANNAH'S WILL; SHIELDS V A-G (TAS) (1939) 34 Tas LR 45 (Tas Sup Ct, Morris

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ACJ).87. Support of clergy Gift to officiating minister for time being De factoofficiatingminister .] A testator bequeathed money to trustees to accumulate until the happening ofan event, and thereafter to pay the income to the officiating minister for the time being of aPresbyterian Church. On the happening of the event S became minister of the church,exercised all the functions for 24 years and was recognized by the governing body of the

church in Tasmania, though he was not called or inducted according to the rulesof thePresbyterian Church. The income was never paid to S or his assignee. Held: (1) The bequestwas a good charitable gift being designed as an endowment for a church not in respect to theminister for the time being in his personal capacity, although intended to augment hisstipend. (2) The officiating minister de facto for the time being was personallyentitled to theincome of the fund. (3) The minister for the time being could make a valid assignment of hisinterest in the fund.

RE DRUMMOND'S TRUSTS (1907) 4 Tas LR 9 (Tas Sup Ct, McIntyre J).88. Support of clergy Gift of income to Dean for time being of Anglican cathedralVacancy of office for period Bishop nominally holding office Curate substantiallyperforming duties .] A testatrix bequeathed to trustees 2,500 and directed themto applythe annual income for the benefit of the Dean for the time being of St David's Cathedral,Hobart, provided that the Dean's stipend exceeded a certain amount. If the conditions of thisgift were not fulfilled the capital sum was to sink into residue. At her death the gift took

effect. On 1 November 1940, the then Dean died and no appointment of a new Deanwasmade until some time in 1942. In the meantime the Bishop, as provided for by theCathedralAct 1886 (Tas), held the office, appointing an acting incumbent, who received the onlypayment by way of stipend. Held: (1) The Bishop was not entitled to the income,since hewas only a nominal holder of the office, neither performing its substantial duties norreceiving the Dean's stipend. (2) The income during the vacancy should be addedto thecapital sum and the annual income of the total sum paid to the Dean for the time

being.RE PATTERSON; PERPETUAL TRUSTEES & AGENCY CO OF TASMANIA LTD VA-G (TAS) [1942] Tas SR 14 (Tas Sup Ct, Morris CJ).89. Support of clergy Gift for benefit of "minister officiating" at Synagogue.] Atestatrix directed her trustees to set apart for or pay to the proper officer ofthe JewishSynagogue, Hobart, for the benefit of that institution 500, that sum to be invested in trustand the income applied for the benefit of the minister officiating at that Synag

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ogue. TheSynagogue was without a minister until some years after the