Will – Construction – Charitable Bequest – Fund to be expended for the Good of
Religion – Religious Purposes.
Held, that a residuary bequest ‘to the Roman Catholic Archbishop of Brisbane and his successors to be used and expended wholly or in part as such Archbishop may judge most conducive to the good of religion in this diocese’ is not a good charitable bequest and is void. The expression used by the testator is not identical with the expression ‘for religious purposes.’
Where the purposes of a trust are expressed in plain language, it is not permissible to appeal to the nature of the trustee in order to impart a charitable character.
What the Archbishop might consider to be conducive to ‘the good of religion’ could cover activities that were not charitable in law. It was the width of the subjective view of the Archbishop and the lack of restriction to purely charitable religious activities that were fatal to the charitable status of the gift.
Lord Macnaghten said: ‘The fund is to be applied in such manner as the ‘Archbishop may judge most conducive to the good of religion’ in his diocese. It can hardly be disputed that a thing may be ‘conducive’, and in particular circumstances ‘most conducive’, to the good of religion in a particular diocese or in a particular district without being charitable in the sense which the Court attaches to the word, and indeed without being in itself in any sense religious.’
Lord Macnaghten managed to distinguish the case from the general principle that a gift for religious purposes is a good charitable gift by reasoning: ‘This is not in terms a gift for religious purposes, nor are the words synonymous with that expression. Their Lordships agree with the opinion of the Chief Justice that the expression used by this testator is wider and more indefinite.’
Lord MacNaghten
[1912] AC 407, [1912] UKLawRpAC 16, (1912) 28 TLR 257, [1911-13] All ER 1105, [1912] UKPCHCA 2, (1912) 16 CLR 500, (1912) 18 Argus LR 122
Commonlii, Austlii, Bailii
Australia
Citing:
Appeal from – James Byrne v Robert Dunne 16-Dec-1910
(High Court of Australia) Will – Bequest for religious purposes – Charitable trust – Uncertainty – Gift of residue to Roman Catholic Archbishop and successors – ‘ To be used wholly or ‘ in part as ‘ the donee ‘ may judge most conducive to the good . .
Exemplar – White, In re; White v White ChD 8-Feb-1893
A testator gave his property ‘to the [listed] religious societies, to be divided in equal shares among them,’ the particular objects not being named.
Held: (reversing Kekewich J) A bequest to a religious institution, or for a religious . .
Cited by:
Cited – Bath and North East Somerset Council v HM Attorney General, The Treasury Solicitor (Bona Vacantia) ChD 31-Jul-2002
Land was conveyed to the Council’s predecessor on condition that it be left available for use for sports and similar recreations, and left as an open space. It was now sought to develop the land as a home for a football club. The Council sought . .
Cited – Gilmour v Coats HL 1949
Prayers Alone did not make Convent Charitable
A trust to apply the income of a fund for all or any of the purposes of a community of Roman Catholic Carmelite nuns living in seclusion and spending their lives in prayer, contemplation and penance, was not charitable because it could not be shown . .
Lists of cited by and citing cases may be incomplete.
Trusts, Charity, Wills and Probate
Updated: 17 November 2021; Ref: scu.181218