CAWTHRON TRUST

Evening Post, Volume CVI, Issue 126, 24 November 1923, Page 8

CAWTHRON TRUST

INTENTION OF TESTATOR

IMPORTANT LEGAL QUESTION

LEGISLATION PROMISED,

(BT TELEGRAPH.)

(FROM OUR OWN CORRESPONDENT.)

NELSON, This Day. ■A question, not only of local but also of general public interest has arisen in connection with the interpretation of a provision in the will of the late Mr. Cawthron, of Nelson.

The will, after providing for several legacies, reads as follows:—"I will and bequeath all other real and personal property belonging to me unto the Bishop of Nelson, the Mayor of Nelson, the chairman of the Waimea County Council, the members of the House ot Representatives and Legislative Council for the City of Nelson, and the Waimea electorate, the chairman of the Nelson Harbour Board, and William Rout, the younger, of the City of Nelson, all in trust, and who are also to be the executors of this my will for the purchase of land, and the erection and maintenance of an industrial technical school and museum to be-called the Cawthron Institute."

The will was made in London in 1902, while the testator was visiting England. He died at Nelson in 1915. During the later portion of hi 3 life he proved himself a great benefactor to the City of Nelson by many substantial gifts and donations, notably the' Cawthron Park, a fine organ to the School of Music, great monetary .assistance to the Nelson Library and Institute, and to the Rocks ' road. He presented the city with the fine steps up the hill from Trafalgar street to the Cathedral, also £15,000 to J the Hospital Board towards rebuilding the hospital, and many minor but valuable gifts. He crowned all by the bestowal of practically the whole of his estate, about_ £250,000 on tne people of this Dominion, as demonstrated by his will. SUCCESSION OF TRUSTEES. Shortly after the board of executors and trustees were constituted by the assemblage of the holders of the various offices at the date of Mr. Cawthron's demise, judgments were obtained from the Supreme and Full Courts for interpretations of the will. Acting on these judgments, the present,Cawthron Scientific Institute was established, and as no succession was specifically provided for in the will, all the gentlemen constituting the board were considered to have life appointments if they so desired. The question of remuneration for services rendered and to be rendered was also adjudicated upon, and provision was made by the Court for these. A good deal of newspaper correspondence and comment was made, mostly expressing dissatisfaction with the situation created the general opinion being expressed that the spirit and tenor of the will was not being given effect to. However, as there was no objection to any of the trustees, either on personal or public qualifications, after a time the matter was allowed to drop, and as the Institute was established, and in many practical' ways demonstrated its usefulness, a feeling of pride grew in the community !at its achievements. . : THE MAYOR'S POSITION. After the death of Mr. C. J. Harley, Mayor, the concensus of opinion was that the new Mayor of Nelson, Mr. William Lock, would in the terms. of the will automatically fill the vacancy, but, as stated, the delay, in making the appointment created doubts and culminated in expressions of opinion in the correspondence columns of the local Press. As there was no response from the trustees, the correspondence ceased, and a little later the appointment was announced of Mr. F. G. Gibbs, M.A., headmaster of the Boys' Central School. While not disparaging the qualifications of Mr. Gibbs as an active and able citizen, it was generally felt thruoghout the district that something Was wrong, and there was much dissatisfaction. However, the Nelson City Council evidently felt that they could not take this lying down, and on 28th March of this year Councillor Moffatt asked the Mayor publicly if he had been approached on the matter of the appointment. The Mayor's answer was in the negative. The same councillor moved a resolution, whicli was carried unanimously, asking the board why the Mayor was not appointed. The Mayor refrained from voting. • • • PEOPLES' OR TRUSTEES' REPRESENTATTVES? The Town Clerk of Nelson, by direction of the council, wrote to the trustees asking why the Mayor of Nelson was not appointed to the vacancy on the board caused by the death of Mr. J. C. Harley, who held the seat by virtue of being Mayor of Nelson at the date of the testator's death.

The trustees replied that they had acted in consonance with the judgment of the Full Court; that no succession of trustees was provided lor in the will; and that "the trustees having cosidered the duties imposed oh them by the trust, the qualifications o£ persons fitted for the discharge of the duties and the interests of the beneficiaries, who are the people of New Zealand, did, in the proper exercise of their discretion, make an appointment in accordance with the law provided in the Trustees Act, 1908."

The council replied maintaining that the trustees, "in not appointing the Mayor to the vacancy, have not acted in accord with the spirit of Mr. yawthron's will, especially as there was nothing in the judgment of the Full Court to prevent their doing so." The trustees, in reply, stated that they had "nothing further to add to their former communication."

The Nelson City Council forwarded the correspondence to Mr. H. Atmore, M-P. for Nelson, and asked him to bring the matter under the notice of the Government, with the view of having effect given to the suggestions of the council and the evident intention of Mr. Cawthron.

During the foregoing correspondence great public interest was manifested, and- the Waimea County Council, realising the importance of all the issues raised, unanimously endorsed the City Council's action and communicated with the members for Nelson, Buller, and Motueka on the matter. ATTOBNEY-GENEBAL'S STATE- / MENT. j The whole matter was brought under the notice of the Prime Minister by the member for Nelson, but as he was then about to leave the Dominion to attend the Imperial Conference, Mr. Massey asked Sir Francis Bell, ActingPrime Minister, to deal with it. After full inquiries by both the' SolicitorGeneral and by Sir Francis Bell (Attor-ney-General and Acting-Prime nfinister), the following considered statement of the position was forwarded to Mr. Atmovo:—

" I have made inquiries as I promised you, and find that thers is a decision of tlio Supreme Coiur.t reported iv .the

Gazette Law Reports, 1916,' at page 607, following a previous decision on the same point of another Judge in the same volume,-262, that the appointment c I trustees is an appointment of persons who held the offices mentioned at the time of his death, and that there is no succession to the trust for the officials who may thereafter hold the offices named, and that, therefore, for instance, the Mayor of Nelson continued to be a trustee after he ceased to be Mayor, and that if he resigned his trust, any other person could be appointed in his place. Both Denniston, J., in the case at page 262, and Stout, C.J., at page 607, suggested that an Act of Parliament was necessary to enable a body of trustees consisting of persons for the time b*! mg holding particular offices to be constituted. The decision at page 607, delivered by Stout, C.J., is that of the full Court, consisting of five Judges, and 1 think there is sufficient ground created by the suggestions of the Court to justify tne Government in promoting a Bill .n Parliament to give effect to the testators obvious intention that the trust should be held by persons holding the offices mentioned in the will, the point as to the Legislative Councillor being met by the observation of Dennistan, J., that that was such a difficulty as could bo remedied by statute. "I do not think, however, that the Government ought to move in the matter except 1 at the instance of the public bodies whose presidents would be trustees in accordance with the testator's intention. If you, as member for Nelson, with the Mayor of Nelson, and the chairman of the Nelson Harbour Board all joined in a request to the Government that it may be provided by statute that the officials holding these offices should be trustees by virtue of their several offices. I will take the matter into very serious consideration and bring it before the Government for decision. I think that there should be resolutions by the City Council of Nelson, the Harbour Board, and the Waimea County Council in addition to the jount request above referred to. "Ordinarily the Government does not intervene in the affairs of a privatelycreated trust unless the trust'is being mal-administered, in which case the duty of the Crown in respect of all charities is brought into action. The point now is not maladministration, but departure from the plain intention of the testator, a departure necessitated by the law which hequires in general definite succession to the ownership of property and such definite succession can be assured only by statute in a case where the officials named for the trust are not themselves corporations. You are at liberty to make any use whatever you please of this letter, but you will understand that the Government could have no reason to propose to Parliament an intervention in the constitution of the trust unless the authorities (and especially the local authorities) concerned considered it desirable in the public interest that they should be directly represented on the board of trustees." NELSON COUNCIL'S APPROVAL.

At a meeting pf the Nelson City Council last evening a resolution was unanimously adopted thanking the Prime Minister and the Acting-Prime Minisise to promote legislation for the purpose of giving effect to the late Mr Cawthron s obvious intention that the trust should be held by persons (including the member of the Legislative Council) holding for tha time being the offices mentioned by the testator in his will A motion, was also passed thanking Mr. H. Atmore, M.P., for his assistance.