SMITH TRUST.

Waikato Times, Volume 102, Issue 17223, 5 October 1927, Page 7

SMITH TRUST.

TRUSTEES' DISAGREEMENT. PETITION FOR SETTLEMENT. _ ONE RELIEVED OF OFFICE. RESERVED JUDGMENT DELIVERED. A petition was , presented to. the Supreme Court at the last session in Hamilton seeking the removal of one of the trustees of a fund of £IO,OOO donated to cerlain objects by the late Mr Herbert Smith, of Hamilton, and Mr Justice Herdman, who had to decide who should be relieved of office, has delivered his reserved judgment in the matter. The late Mr Smith died on July 13, 1926, leaving an estate of the value of £140,000 or thereabouts and except . for the sum of £IO,OOO deceased vested the whole of his estate in his brother, Mr C. B. Smith as trustee and appointed him executor of his will. lit his will Mr Herbert Smith set aside the £IO,OOO referred to to provide prizes "for athletic competitions to the youth of New Zealand between the ages of nine and fifteen." He appointed the petitioner (Mr C. B. Smith) and Mr Frederick Archibald do la Mare to be the trustees to administer the fund. The troublesome provision of the will, set out in detail, read as follows: Provisions of Will. "During a lifetime of intermittent illness and Ave years of hospital and serious illness I have given some thought of •matters pathological and have come to the Arm conviction that cure is in the hands of God and not as is frequently alleged, in the hands of the British Medical Association, but prevention is unquestionably in the hands of parents, teachers, doctors -'sovernmenls. Since Mr H. G. Wells published Ids outline of history there is no excuse for any person of average f intelligence not understanding somes thing of the origin and development of the human animal to its present stage. "Understanding this it is easy to deduce a good idea of the means by which this perfection of muscle and brain was evolved by 'ceaseless striving.' It also should be obvious that the means

necessary to maintain and develop the

hody over a period of millions of years cannot now be suddenly discarded and

will be found even more necessary for maintenance and progess, for life must go on or deteriorate and perish. "Therefore in place of giving a sum to a hospital I propose to award prizes for athletic competitions to the youth of New Zealand between the ages of

nine and fifteen, in a manner to induce the greatest possible number of them to become hardy and characterful men and women. These prizes shall be given over a period of seven years, by which time I trust that the Government will have made all sports compulsory, as is the case in the best of the English schools and I bequeath the sum of £IO,OOO for the purposes mentioned to my trustee and to my friend, Mr F. de la Mare of Hamilton, as trustees of such fund. Request them to take such steps as they may consider necessary to effectuate my purpose I authorise and request my said friend to act as secretary of the fund." A further clause in the will suggests to the trustees that they consider the question of concentrating on route inarches or harriers for boys and skipping for girls should they prove practicable, but to assist them in making Uie greatest possible use of the money he offered £25 as a prize for the scheme which would in their opinion benefit the greatest possible number of children. No scheme must have ill any part of it conscious deep breathing, which he considered developed the very dangerous habit of breathing during strain or exertion, but shoulu be confined to short breathing, promoting the fullest development of the nose and respiratory tract, especially between the ages of nine and twelve, and putting that foundation in the young child Which was so vitally necessary to adult health.

Unanimity Not Reached.

In his judgment Mr Justice Herdman states that the trustees have had many conferences ahout the disposition and administration of this trust fund, and have utterly failed to reach unanimity. More than a year has passed since the testator died and no prizes have been awarded in accordance with the testator's directions. The trust provision declares that the prizes are to be awarded over a period of seven •v-ears but whether the period of seven years is to be computed from the date of testator's death, or the date upon which a commencement to allocate prizes begins, the will does not state It would seem-that not only do the trustees interpret the testator's wishes differently, but, even when a proposal for the expenditure of money emanating from one trustee is clearly within the ambit of the trust, the other trustee will not or cannot agree and so an impasse is created and the trust remains inoperative. As argument upon the petition progressed it became SUious that the differences be-. tween the two gentlemen nominated. •■< lry Mr Smith to give effect to his ' wishes have become so irreconcilable hat it is difficult to see how with both of them in control the trust can be a TdiS C ion is given by the clause »i.«itin«* the trustee and that discretion r ust be exercised/ but when it comes 5 deciding how or for whose benefit the discretion shall be exercised two men meet who obstinately refuse to Tnvk in harmony. Each possesses definitely settled views about the disSn of the fund and so resolutely P n hose: views held that, in the opin£2 of boul one or the other must unpleasant task of deciding - *n shall be relieved of office devolves * nn me " proceeds Mr Justice HerdupoD -There seems to be no doubt Sit'in circumstances such as I have • I ready indicated, a trustee can and Ed be removed. There is nothing S „ firm an inability to agree; but m Stime the trust is at a standstill. mCa I sense this is a non-contentious 111 ° ne Ne tier trustee takes any excaS?: nn tr the form which the present cel,U °,rlin- have taken and they both P roce . cdl S, f,ii that one or the other •i° in , , l Amoved Further, they both shaU J ? Sit in the interests of concede that u thom ghftll ' lhG ?££ e Si am Quite satisfied that he remove" bolh to *\ a "! c U animated by the best trustees ai with hig . jilLirna io motives, m* brother's character Knowledge Uml his views as and ,v? administration of the trust to thf, ad Xi'cd 'On the other hand, ould ,^MaS'backed with the views =* dC mbrr of men interested in cdu0f t a n" dnks that his plans best ac- • cation, U? ,n * revealed, intentions of cord w»* h the i thc testator. . > A of Trust." rnn+4aU inS. the judgment slates that ~.JfifSe trlist involves the giving of (Continued in next column.)

prizes it js silent as to what form they shall take. The testators suggestions for exercise furnish a key to his thoughts. Mr Justice Ilerdman says " I should think that for the purpose of benefiting the greatest possible number of children in New Zealand between the ages of nine and, fifteen, the testator had in mind the giving of rewards to a team or group of children which has been successful in some competition, or to some individual in some athletic contest in which a number of children took part. " In paragraph ten of the petition Mr Smith states what he believes to be the difference between himself and Mr dc la Mare. He says that the latter is " of opinion that the trustees should aim at giving cash grants to schools for construction of playing fields, school baths and similar purposes, whereas your petitioner is of opinion •that the desire of the deceased is that the prizes should be mainly given to the individual by way of team prizes Mr de la Mare does not admit this

, is his settled view." | The trust did not authorise the expenditure of money for the training of I school teachers, as appeared to be Mr , de la Mare's view, nor would money ' spent in the direction of providing J swimming baths for a school be within : a trust which provided for the giving ! of prizes to children between certain i ages. He could not help thinking in I'giving a decision, proceeded Mr Justice | Hcrdman's judgment, that he should ! recollect that Mr Smith was a brother !of the author of the trust, that i apart from this trust he was left in I sub-charge of an estate of consider- | able value, and that so highly did he ! stand in the estimation of the testator ! that the latter did not hesitate to entrust him with the sole management I of his affairs for some years before ' he died. More than that, the petitioner 1 had special opportunities for discovi ering what his brother had in mind ! about the physical training of children.

!Y!r ds la Mare Removed

Mr de la Mare's plans for the expenditure of the trust funds might be admirable; so might Mr Smith's. He must assume that neither trustee contemplated breaking the provisions of the trust. No properly defined scheme had been submitted by cither of the trustees. He had their views, but no concrete scheme. He had some doubt as to whether the correct procedure had been followed in bringing the matter before Court, but as the parties concurred m the course taken and as in oLher cases involving the appointment of a .newtrustee, proceedings by way of petition had been instituted in New Zealand without objection, he should not require the parties to bring the matter before the Court in another form, lie would therefore order than Mr dc ja Mare be removed from the office of trustee and he would appoint a successor to the office left vacant when names had been submitted to aim by the remaining trustee. In the meanlime the question of costs would be reserved.