GIFT HELD TO BE VOID.

Press, Volume LXIX, Issue 20905, 12 July 1933, Page 10

GIFT HELD TO BE VOID.

UNCERTAIN VALUE OF RESIDUARY ESTATE. i.EGA( Y FOR RELIGIOUS PURPOSES. [THE rEESS Speci*! Strrice.j WELLINGTON. July li. In disposing of his property the late Mr Gaius Brewer, of Wellington, under his will directed the trustees, on the death of his widow, to expend the residue of his estate "in gifts to be employed in the service of my Lord and Master, and/or in relieving at any time any pious person or persons in need whom they (the trustees) may wish to assist. -> A question was raised before Mr Justice MacGregor in the Supreme Court whether this trust came within the description of a chantable trust, and to-day in a reserved judgment his Honour held that the gift was wholly void, for the uncertainty of the value of the residuary estate affected by the gift was stated at the hearing of legal argument to be between £7OOO and £BOOO. Leading Cases Quoted. His Honour, in arriving at his decision, examined a number of leading cases on the subject of religious and charitable gifts. The general question, said his Honour, came before the House of Lords in the case of Hunter v. the AttorneyGeneral. In that case, Lord Halsbury had stated the law thus: "It is undoubtedly law that where a bequest is made for charitable purposes, and also for an indefinite purpose not charitable, and no apportionment is made by the will so that the whole might be applied for either purpose, the whole bequest is void"; and Lord Davey had pointed out that "Where charitable purposes are mixed up with other purposes of such a shadowy and indefinite nature that the court cannot execute them, and discretion is vested in the trustees, the whole gift fails for uncertainty." That leading case had been followed and applied by the Court of Appeal in a case in 1909, where it held that a residuary bequest in trust for the Roman Catholic Archbishop of Westminster for the time being, to be distributed by him between such charitable, religious, or other societies, institutions, persons, or o ,_ - jects connected with the Roman Catholic faith in England as he should in his absolute discretion think fit, was not a good charitable I bequest, but was void for uncer-1 tainty. From the judgments in that I case, it clearly appeared that while a religious gift might be charitable, yet all religious gifts were not necessarily charitable. Residuary Funds. Using the language of the Judicial Committee in the case of Chesterman v. the Federal Commissioner of Taxation, his Honour said that in his opinion it was equally plain in the present case that the trustees might ostensibly, "in the service of my Lord and Master," devote the whole of the residuary trust funds in the estate to an institution where they might "sanctify their own souls by prayer and contemplation without engaging In any corporal v/orks of mercy." Such a purpose might be religious; but it certainly would not be charitable. His Honour said that in his judgment the passages to which he had referred applied cogently to i the present case. The established rule was that no gift was to be deemed charitable unless the testator had in express terms, or by necessary implication, signified a clear intention to devote the property (obligatorily) to charitable purposes. In his Honour's opinion, the testator had not expressed such a intention by his will. Accordingly, the gift was wholly void for uncertainty. |

I Estate of Testator. His Honour also held that the persons entitled to the estate of the testator on the death of his widow were his next-of-kin, as on intestacy. Mr H. R. Biss appeared for the plaintiff trustees, Mr S. A. Wiren for a brother of the testator, Mr C. H. Taylor (Crowr Solicitor) for the Attorney-General, and Mr J. L. | Stewart for the widow and a niece I of the testator. i | ! i I j I !