“BENEVOLENT” BEQUEST

Greymouth Evening Star, 13 September 1934, Page 12

“BENEVOLENT” BEQUEST

JUDGE UPHOLDS WILL. [PER PRESS ASSOCIATION.] AUCKLAND, September 12. . Whether a bequest made in the clause dealing with the' residue of the estate of the late Catherine Smith, of Auckland, after certain specific legacies left to relations 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 Court. 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 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 testatrix disposed of the residue of her estate directed her trustee, N.Z. Insce. Co. 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, and in such amounts as it is in its absolute discretion deemed advisable.-

In his judgment, Mr Justice Herdman .said, that upon the question of whether the bequest referred to was void for uncertainty, or perfectly valid, depended the fate of £75,961. There was no difficulty about the words “charitable, educational or religious purposes.” Had these words stood alone, the gift would have been sufficiently certain and could not have been questioned. It was the introduction of 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 object.” In the present case, 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 purpose, which could be definitely ascertained. “A gift to an existing benevolent institution or society, in or about Auckland, presents no identification difficulties,” said His ‘Honor. “A benevolent society exists in Auckland, and another benevolent society is established in Onehunga. Are they to be deprived of the 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 Societies Act, 1908, which provides for registration of benevolent societies for benevolent or charitable purposes. If the gift cannot be defended upon the 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 trust funds, that they are doing so 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, or for an educational or religious purpose. It is conceded that a charitable institution is not the same kind or 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 the 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 society in addition to institutions and societies Which are not benevolent, but which in the eye of the law, carry the hallmark of charity.” His Honor decided that there was a valid charitable bequest. Costs are to be paid out of the residue of the estate which was the subject of the action.