LANGUAGE OF WILL

Evening Post, Volume CXVI, Issue 70, 20 September 1933, Page 11

LANGUAGE OF WILL

TESTATOR'S BEQUEST

QUESTION OF VALIDITY

ARGUMENT ON APPEAL

The whole of yesterday and part of today were occupied in the Court of Appeal with the hearing of legal argument in the case raising the question whether words used in the will of the late Gaius Brewer, of Wellington, constitute a good charitable gift. In disposing of his property the testator, in his will, directed his trustees, on tho death of his widow, to expend the residue of his estate "in their absolute and unfettered discretion in gifts to be employed (in the service of my Lord and Muster) and/or in relieving at any time any pious person or persons in need whom they may wish to assist. In a Supreme Court judgment delivered by Mr. Justice MacGregor, his Honour held tho gift to be void for uncertainty. The legal argument heard -yesterday aiid today was on an appeal by the Crown, as protector of charities,, from j this decision. Judgment was reserved. The appeal was heard by the Chief Justice (Sir Michael Myers), Mr. Justice Beed, Mr. Justice Ostler, and Mr. Justice Smith. The Solicitor-General (Mr. A. Fair, XC) and Mr. T. P. Cleary appeared for the Crown; Mr. H. B. Biss for the respondent trustees, Percy John Bydder and Henry Wells Bowden; Mr. J. -*• Stewart for Mrs. Brewer (the.widow) and Mrs. Moorman, mccc of the .testator- and Mr. S. A. Wiren for Joseph Brewer, brother of the testator. In opening Ms argument yesterday afternoon Mr. Wireh said that from what had been said P™*"™l?.* 116,;^ pression might bo gained that his client was the cause.of all the trouble m the case. That was not so. The trustees themselves were in doubt, and it was they who brought the matter before the Court in the first place. His client was served and he was instructed to- look after his interests in the matter. The first point he wished to make was to refute the suggestion that the law required the Court to lean one way or the other in deciding whether or not the gift in the case was a charitable trust. While, the Court might be benevolent once there was a charity, it was submitted that the Court was not going to bo benevolent to constitute a_ charity. ' His next point,was that if the trustees could employ any part of Mr. Brewer's estate for a purpose which was not charitable in the legal sense, then the whole case must fail. He, understood that to be conceded in the Court below, but the Solicitor-General how apparently argued to the contrary. WORDING OF THE WILL. . Dealing with the. wording of the will, Mr. Wiren said that the use of the brackets enclosing tho words "in the service of my Lord and Master" would seem to suggest that the words were regarded as of minor importance. They were open to the interpretation that they were rather an expression of desiro than a part of the trust. The next point he wished to draw attention to was one to which Mr. Justice Ostler had referred, namely, the words "in gifts to be employed.". On tho plain language of the will the trustees themselves did not expend the money. They made gifts, arid it was the* donees who actually used the money, and it was submitted that over the donees the Court and the trustees had no Control once tho money was given to them. That, he thought, distinguished the case from anything that had been cited previously. The third point he wished to make on the wording of the will was in regard to the words "in, their absolute and unfettered discretion." Mr. Wiren submitted that these words were intended to apply primarily, at any rate, to the first branch of; the \ gift, because in the second part were found the words "at any time whom they may wish to assist," which gave complete discretion with Tegard to gifts in th© second class. TRUSTS FOR RELIGIOUS PURPOSES. It had been contended, continued.Mr. Wiren, that a trust for religious purposes without. anything more was a good ■ charitable trust. He 'submitted that it had been established that the Courts wanted the words to be identical in meaning with religious purposes before they would give them that meaning. It was submitted, too,, that it was now well established1 that religious purposes were charitable only if they tended towards the instruction or edification of the public. A further submission was that in any event the trust must be one the Courts can control, or, if necessary, execute;

After hearing Mr. Fair in reply, the Chief Justice said the Court would reserve its decision. ,