CHANGE IN BEQUEST.

Otago Witness, Issue 3993, 23 September 1930, Page 51

CHANGE IN BEQUEST.

APPLICATION BY KNOX CHURCH.

SCHEME APPROVED BY COURT.

Judgment was given by Mr Justice Kennedy in tbe Supreme Court in the case in which an application was made on behalf of Knox Church for permission to use a sum of money bequeathed by Robert Glendining for the purchase of an organ instead of a peal of bells. At the hearing of the case Mr J C. Stephens appeared for Knox Ohurch and Mr C. J. Payne for the trustees. His Honor’s judgment was as follows: Robert Glendining, of Dunedin, met? chant, died on June 23, 1917, leaving a will in which he bequeathed “ the sum of £lOOO to Knox Church Deacons’ Court, Incorporated, for the purpose of providing a peal of bells for the church.” That body was of the opinion that it was both impracticable and inexpedient to apply the trust fund ior the purpose of providing a peal of bells, because the church tower was not of sufficient size or strength to house the peal, and a new tower was objected to on the grounds—firstly, that it would spoil the architectural beauty of the building and, secondly, that the cost would not be justified, and could not be faced for a long period of years. The cost of a suitable peal of bells was estimated at £32OG, and the structural alterations and additions were estimated to cost £3900, towards which there was available only the legacy of £lOOO and its accumulations amounting in all to £lBOO. It was said that the peal of bells, when erected, would be in a thickly populated area and in close proximity to a public hospital, and might be regarded as a nuisance. There was evidence on record to that effect. Hie Deacons' Court accordingly proposed a scheme under which the sum available would be applied towards payment in part of the cost of an organ to be installed in the church. This organ -was to cost not less than £4500. It was proposed that this cost should be defrayed as follows, namely, by the application of the trust fund of £lBOO. by the payment of £1590 already collected and by the payment of £4lO already promised and by a further payment of £7OO to be subscribed.

. The Religious, Charitable, and Educational Trusts Act, 1908, as amended bv the Religious. Charitable, and Educational Trusts Amendment Act, 1928, provides, inter alia, that where it becomes impracticable or inexpedient to carry out the trust upon which any property held for particular purposes of a charitable naturs is held, or the amount available proves inadequate to carry out the original charitable purpose, the property so held may be disposed of for some other charitable purpose in the manner and subject to the provisions of the Act. Provision is made under the Act for the preparation of a scheme, and by section 20, it is provided that if a judge of the Supreme Court is satisfied that the scheme proposed is proper and not contrary to law, public policy, or good morals, he shall make an order approving of the scheme with or without any modification or variation as he thinks fit.

It is clear, that the original purpose, namely, the furnishing of a peal of bells for the church, was a charitable purpose within the meaning of section 15 of the principal Act as amended, for a charitable purpose, there referred to, includes not only the special purposes set out in section 14 of the principal Act, but also includes every other purpose which in accordance with the law of England is a charitable purpose; the Religious, Charitable, and Educational Trusts Amendment Act, 1928, section 3. The furnishing of a church with a peal of bells is a good charitable trust according to the law of England: see Turner v. Ogden (1787), 1 Cox, Eq. Cas. 316 and re Palatine Estate Charity (1888), 39 Ch. Dv. 54, 59. So, likewise, is the furnishing of a church with an organ: Atty. Gen. v. Oakaver (1736), 1 Vesey, Sen., 536. There is no doubt that the trust fund is at present inadequate to provide a peal of bells, and I have come to the conclusion, on the evidence, which was uncontradieted because no person appeared to oppose the approval of the scheme, and the only parties represented appeared to consent, that, although this is not a clear case, it is inexpedient to carry out the original charitable purpose. The Deacon’s Court of Knox Church (Incorporated) expressly undertook, if the scheme -were approved, to install an organ of the value of not less than £4500, to place an order for such an organ immediately the scheme was approved, and to raise by subscription the said sum of £7OO, or any larger sum required in the event of a more expensive organ being obtained, within 12 months from the date on which the scheme was approved. An order is made approving of the scheme. It will contain, as set out in the draft order lodged, reference to these undertakings by the petitioner.