AUCKLAND MUSEUM OF ART.

New Zealand Herald, Volume XXIX, Issue 8982, 13 September 1892, Page 6

AUCKLAND MUSEUM OF ART.

THE MACKELVIE TRUST.

APPLICATION TO DEPART FROM THE TERMS OF THE WILL.

At the Supreme Court yesterday morning an application of very great public interest in connection with the MacKelvie bequest was heard by His Honor, Mr Justice Conolly. The application took the form of an action in which David Limond Murdoch, John Logan Campbell, Thomas Russell, and John Henry Upton, trustees in New Zealand of the will of the late J. T. MacKelvie, appeared as plaintiffs, and Her Majesty's Attorney-General of the Colony of New Zealand, and the Mayor and Councillors of the city of Auckland, as defendants. Mr. C.*E. Button appeared for the plaintiff's, and Mr. T. Cotter represented the defendants.

Mr. Button read a lengthy statement of claim. The first five clauses . dealt at length with the provisions of the will; also with the deaths of Marion Hanna MacKelvie, the testator, Robert Douglas Heani, (one of the executors), and of Albin Martin (one of the trustees); also with the appointment of John Henry Upton as trustee in the place of the said -Albin Martin deceased.

The statement then went on to declare that the executors of the will in proceeding to administer the estate, upon examination of their accounts, estimate! that the sum of £7500, or thereabouts, would comprise the whole of the trust funds immediately available for the Museum of Art. This, however, would be subject to contingent accretions on the determination, or in case of the failure of any of the sums of £7000, £10,000, £10.000, £1500, and £1000, the said sum of £7000 being bound, on the determination of the prior life interest to fall into the residue of the estate of the testator. On or about the sth March, IS9O, the plaintiffs, finding the funds available were inadequate for the establishment and maintenance of the Museum of Art in terms of the will, wrote to the solicitors in England for the executors, informing them that they were considering the feasibility of departing from the instructions of the will directing the acquisition of a site and the construction of a building thereon, it being proposed to deposit the collection in the Auckland Art Gallery, and devote any surplus funds to the purchase of pictures and other works of art. The executors thereupon brought an action in the High Court of Justice, Chancery Division, against the New Zealand trustees. The plaintiffs claimed liberty to transfer the residuary estate then in, or which might thereafter come into their possession to the New Zealand trustees. Upon the hearing of the application on March 16, 1892, the trustees undertook not to apply the funds which might come to their hands otherwise than in accordance with the will, unless as ordered by a Court of competent jurisdiction in Now Zealand, and also to apply to such a Court within six months after the receipt of the funds. The Court then granted the application of the executors. The testator evidently estimated that there would be ample funds coming into the hands of the trustees to enable them to carry out effectively the directions of the will, but owing to the very great depreciation in the value of certain shares in public companies held by the testator, and also to the sale of his properties realising much less than was anticipated at the time of his death, the amount available is not sufficient to enable the trustees to purchase a site and erect a suitable building, without depriving them of the means of purchasing such additions to the articles of vertu as was contemplated by the will. The plaintiffs, therefore, deemed it impolitic to attempt a strict compliance with the terms of the will, and by arrangement with the defendant corporation temporarily deposited the collection in the Auckland Art Gallery. The corporation subsequently agreed to build an annexe for the accommodation of the collection, upon certain conditions agreed upon by the trustees. The agreement was entered into subject to the approval of the Court, and upon that understanding the said annexe has been built, and a deed embodying the terms of the agreement is about to be executed.

The plaintiffs therefore pray : 1. That the Court would apply cypres doctrine of the Court to the trusts of the will and approve of a scheme for the regulation and management of the charity for the Museum of Art on the basis of the proposal hereinbefore referred to so as to enable the plaintiffs to give practical effect to the intention of the testator, although departing somewhat from the actual directions of the trusts of the said will. 2. That such order cr decree may be made in the premises as to the Court may seem meet. Mr. Button stated that the AttorneyGeneral and the City Council had been made parties, and that Mr. Cotter had been appointed by both defendants to 'represent them. Mr. Cotter had put in on behalf of each defendant a statement of defence submitting to the judgment of the Court. He, Mr. Button, was of opinion that in this case the doctrine of cy pre* should be applied. That the Court had jurisdiction was quite clear from two cases decided in New Zealand, one by the Court of Appeal, and the other by the Chief Justice at Wellington. The c;i*es he referred to were the Wellington Education Board v. Harrison and others, and the Corporation of the Sons of the Clergy v. Mo?e. In the former case as in the present the general intention being charity, the Court was not called upon to interfere with the object of the trust, but only as to the mode of carrying it out. His Honor said that he had not the slightest doubt on the question of jurisdiction. In New Zealand the Judge sitting alone had all the powers of the English Courts.

Mr. Button went on to say that Mr. Justice Chitty had stated, that he had no doubt but that the New Zealand Courts would find some means of giving effect to the alterations proposed by the trustees. He also quoted the case of the AttorneyGeneral v. Bunny as to the definition of what were charitable funds. There it wa a laid down that the revenue of the pro vinces of New Zealand came under that head, and it was quite clear that the funds for a museum of the kind in question come under the same head.

His Honor said the matter could hardly be taken further when the Courts had held that the revenues of tho provinces of New Zealand were included in the definition of charitable funds.

Mr. Button also quoted from "Jnrman on Wills" to the following effect: —" If the donor declared his intention in favour of charity, indefinitely, without any specification of objects; or in favour of definite objects wbichhappened to fail from whatever cause; although in such cases the particular mode of application contemplated by the testator is uncertain or impracticable, yet the general purpose being charity, such purpose will, notwithstanding the indefiniteness, illegality, or failure of its immediate objects, be carried into effect." In the present case it was quite clear that the amount was not sufficient to build a creditable museum, and at the same time enlarge the collection. The primary intention was no doubt to bestow a valuable collection upon the city. Some communications on the subject had taken place in the testator's lifetime, and if he had known that only a paltry building could have been erected, he would probably have altered the terras of his will. His Honor : There has been a great fall in. values since 1885, when the will was made out.

Mr. Button : Particularly in shares, and these chares formed a large part of the bequest. He submitted that the judgment should be in favour of. the scheme to be proposed, of which ha would leave a copy with His Honor until Friday. He hoped that the scheme would be approved of. Mr. Cotter stated that, it seemed to him after a careful perusal of the will, knowing the facts as he did, that the Court would be carrying out the intention of the testator in granting the application. At the time when the will was made there was no suitable building for the reception of the collection, the building in Prrnces-street being the only place of this kind then in existence. The collection was undoubtedly worth a building specially for its display, and such a building had been erected at the cost of the city. Therefore if the proposed scheme were adopted, the citizens would gain greater advantages than would be derived from the strict adherence to the terms of the will. The whole fond would be available for the purchase of works of art. The building was a suitable one in every way. The application really was that the

intention of the testator might be carried out, aad he agreed to it on behalf of the defendants.

His Honor: I have no doubt as to the power of the Court in this matter, nor have I any doubt as to the propriety of the doctrine being applied, lhe decree will be as praved, the terms of the scheme to be settled in chambers.

Friday next was fixed for the hearing in chambers. Mr. Cotter stated that the authorities would be only too pleased to show His Honor over the annexe any time before that day.