PRIVY COUNCIL’S PRAISE

Press, Volume LXXII, Issue 21938, 12 November 1936, Page 13

PRIVY COUNCIL’S PRAISE

NEW ZEALAND JUDGES UPHELD VALIDITY OF WOMAN’S WILL (moil ocb ow* oomwowwA) LONDON. October 2L “Their Lordships find thenoselves w fullv in agreement with by the learned Chief Jus* l *** colleagues in the majaritym by Johnston J. «S lucid judgmen , what has already b2s°£> «n 4d.“ wiu > ’SSS g» wSr'i—is.d h MaiSt 4 , s: “if ?t°M™ n caU.2ine Smitb lAuck“Sto Smith died on Augurt ?uc» b S“xS «“f2? , 5 8 555 ? 54 tf^.‘LS«3ySS J 5 nt- nhipcu and in such amounts or or objects ana abso i u te discretion amount as it in The Question shall deem advisable. The a«esH«n to be determined by toe court was whether this “residuary bequest was valid and effectual. , , jmWhen the case was heard, by w Justice Herdman in the he held that the bequest was vani But his decision was reversed by toe Court of Appeal, altfaough Mr Reed dissented, agreeing with Mr Jus tice Herdman. The appeal, when presented to the Privy Coimcil. was heard by Lord Atkin, Lord Russell « *** lowen Lord Macmillan. Lord Alness, and Sir Lyman Poore Duff. “The privilege of controlling byw*R the dispositioii of property after deato is subject to toe condition toat such disposition must be made m favour Of ascertained or a§certauiable ot objects,” said their Lordships m their judgment. “A testator is not Permitted to delegate to others the disposition of his property, subjectto thisthat he may confer upon his a power of selection and apportionment among a * definitely prescribed class of beneficiaries. In the case JO. charitable objects the law, by rfason of the favour in which chanty is new, has accepted such objects as constituting a sufficiently ascertained class notwithstanding its wide extent, and p«mits a testator to direct a fund to be distributed among such chanties and in such proportions as his trustees may in their discretion decide. But in ml other cases toe requirement of definite precision is enforced in the definition of the individuals or classes to be benefited. Fatal Word “Benevolent” “Now it is settled beyond dispute that a bequest by a testator in favour .at benevolent objects to be selected by.his trustees does not answer this requirement and is ineffectual because of ite indefiniteness. In the present bequest toe fatal word ‘benevolent occurs on which so many testamentary dispositions have been shipwrecked, but it is urged that toe bequest is salved by , the fact that it is not in favour of benevolent purposes at large to be selected by the trustee, but is m favour of institutions, societies or objects m or about Auckland for benevolent purposes. It is suggested that sufficient definiteness is imparted to the benevolent objects of the bequest by specifying that they are to be institutions, societies or objects, presumably m existence and ascertainable, and th«£ these institutions, societies or objects are to be in or about Auckland, so that the trustee should have no difficulty in determining the class of objects among which to select beneficiaries “It is probably the case that the addition of a local qualification may to certain circumstances render sufficiently definite what would otherwise be too wide a class, but in the present instance the want of precision Is Inherent in the word *benevolent’ itself. Consequently, however circumscribed the local area and assuming that only existing organisations are intended, it still remains that to predicate of an institution, society, or object In or about Aucjcland that it must be "benevolent* is not to identify it with the requisite precision. That being go, it is unnecessary to discuss whether a further ambiguity lurks in the word ‘objects,’ or to comment on the peculiar form of the direction to the trustee to make bequests.” Costs of all parties to the appeal were ordered to be paid out of the residue of Mrs Smith’s estate.