BEQUEST TO CHARITY

Hawke's Bay Tribune, Volume XXIV, Issue 232, 13 September 1934, Page 9

BEQUEST TO CHARITY

Dispute in Supreme Court WILL DECLARED VALID By Telegraph—Press Association. AUCKLAND, September 12. Whether a bequest made in a clause dealing with the residue of the estate of the late Catherine Smith, of Auckland 1 , 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 Supremo Court. Mrs Smith died in 1933 leaving a will, probate of which was granted on September 4of 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 £6500 were set aside for certain named minors.

The clause in the will in which the testatrix disposed of the residue of her estate directed her trustee, the New Zealand‘lnsurance 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 in its absolute discretion deemed advisable.

In his judgment Mr Justice Herdman said that upon the question of whether tho bequest referred to was void for uncertainty or perfectly valid depended the fate of £75,961. No difficulty arose about the words “charitable, edu cational or religious purposes.” Had these words stood alone, the gift would have been sufficiently certain and could not have been questioned. USE OF WORD “BENEVOLENT.” It was the introduction of the word “benevolent” which hnd made an ap plication 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.” Jn 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 tor charities and part tor another purpose wliicb could be definitely ascertained. “A gift to an existing benevolcm institution or society in or about Auckland presents no identification difficulties,” said His Honour. “A benevolo* t society exists in Auckland and another benevolent society is established

nt Onehunga. Are they to be deprived of tho chance of succeeding to soma 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 the registration of benevolent societiea for benevolent or charitable purposes. IN EXISTENCE AT DEATH. “If the gift cannot be defended upon the ground that I have taken, it cannot be defended at all. It seems te 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 a benevolent purpose, 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 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. Thai is why she sought to benefit a benevolent institution or society in addition to institutions and societies which ara not benevolent, but 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 be paid out of the residue of the estate, which was the subject of the action.