VALID BEQUESTS

Evening Star, Issue 21824, 13 September 1934, Page 2

VALID BEQUESTS

DESTINATION OF BIG ESTATE INTERESTING WILL DECISION [Per Ukited Pm* Association.] AUCKLAND, September 12. Whether, the bequest made in a clause dealing with the' residue of the estate of the late Catherine Smith, of Auckland, after certain specific legacies left to relatives and'charities' had been provided for, was void for uncertainty or perfectly valid was decided by Mr Justice Herdman in a reserved judgment delivered in the Supreme Mrs Smith died in 1933, leaving a will, the probate of which was granted on September 4 of the same year. The value of her estate for duty purposes was £126,595, and the specific legacies left to relatives and charities amounted in all to £21,300, and sums aggregating £6,500 were set'aside for certain named minors. A clause in the will in, which the testatrix disposed of the residue of her estate directed her trustee, the New Zealand Insurance Company Ltd., to apply the same in making other bequests towards other institutions, societies, or objects established in or about Auckland for charitable, benevolent, educational or religious purposes,, the trustee to benefit such institutions,, societies, or, objects . in {such amounts as it in ■ its absolute discretion deejned advisable. In his judgment Mr Justice Herdman said that upon the question whether the bequest referred to was void for uncertainty or perfectly valid depended the fate of £75,961. No difficulty arose about the words “ charitable, educational, or religious purposes.”. Had - those words stood alone the gift would have been sufficiently certain • and could hot have been questioned. It was the introduction or the word “ benevolent ” which had. made an application to the court necessary. Had the word “benevolent” been absent, the bequest would have been for charitable purposes and valid. Even if the object of the gift had been uncertain it would not have been void, because “ a charitable gift was. never void for uncertainty in its object.” : ' “ In the present case the testatrix may . have intended to create a general charitable. trust or she may have intended a'kind'of hybrid trust, part for charities .and part for another purwhich could {be 1 definitely 'ascertained. ’ The gift to an existing benevolent institution or society in, or about Auckland presents no identification difficulties,”, said Hit Honour. “A benevolent society exists in Auckland. The will, shows; that another benevolent society is established at Onehunga. Are they to be deprived of a chance of succeeding to some part of the large sum left by the testatrix because the gift to benevolent institutions is uncertain? That benevolent societies ; which. are not charitable societies may exist in New Zealand is seen by looking at the Friendly So-

cieties Act, 1908, which provides for the registration of benevolent societies for benevolent or charitable purposes, if the gift cannot be defended upon ground .that I have taken, it cannot be defended at all. It seems to me that in every case in which the trustees propose to exercise the discretion given them, they must be satisfied before they part with the trust funds that they are doing bo to an institution or society which .was in existence at the date of the death of the testatrix, and which was established for a charitable purpose of for a benevolent purposes or for an educational or religious purpose. It is conceded that a charitable institution is not the same kind of thing as a benevolent institution. If they were identical in character I would not be troubled with this case. It is apparent to me that tjie testatrix in dealing with the residue of her estate wished to give her trustee, whose duty it is to disburse it, the widest discretion. That is why she sought to benefit a benevolent institution or a society in addition to institutions and societies which are not benevolent, hut which in the eye of the law carry the hallmark of charity.” His Honour decided that there was a valid charitable bequest.. Costs, are to he paid out of the residue of the estate which was the subject of the action.