Re Resch's Will Trusts
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1967 |
| Date | 1967 |
| Year | 1967 |
| Court | Privy Council |
Australia - New South Wales - Charity - Private hospital - Gift of income from residuary estate to the Sisters of Charity for purposes of private hospital - Whether valid charitable bequest. - Charity - Health - Hospital - Bequest for purposes of private hospital run by Sisters of Charity - No evidence of profits for individuals but substantial fees charged - Provision of a certain type of medical care and accommodation - Whether activities of Sisters in regard to their general property a material consideration - Validity. - Charity - Class, gift for limited - Bequest for purposes of private hospital - Substantial fees charged but poor sick not excluded - Whether necessary that trust be limited for relief of poor sick - Test of public benefit - Indirect as well as direct benefit to be taken into account - Whether need existing for services provided by such hospital - Whether valid charitable gift. - Will - Construction - Identical bequests - Bequest in later codicil identical with bequest in unrevoked earlier codicil - Court of construction or probate - Principles applied by court of construction - Existing scheme of benefit - Necessity for clear intention to revoke - Whether bequest cumulative or substitutional. - Will - Revocation - Codicil - Bequest in later codicil identical with bequest in unrevoked earlier codicil - Whether cumulative. - Will - Construction - Personal chattels - Gift of “my … personal jewellery” - Gift to small boy by male testator - Whether testator's deceased wife's jewellery included - Whether limited to testator's own personal jewellery.
By his will dated December 5, 1960, a testator directed his trustee from time to time to pay two-thirds of the income from his residuary estate
“to The Sisters of Charity for a period of 200 years or for so long as they shall conduct St. Vincent's Private Hospital, whichever shall be the shorter period, to be applied for the general purposes of such hospital and upon expiration of the said period of 200 years or upon the Sisters of Charity ceasing to conduct such hospital whichever shall first happen, to pay …” the said income to certain named beneficiaries.
The testator also made three codicils to the will dated May 22, 1962, September 24, 1962, and September 5, 1963, respectively, all of which, together with the will, were admitted to probate notwithstanding that the third codicil in point of time was described as the first codicil.
By the second codicil, dated September 24, 1962, the testator directed his trustee to hold annuities for the benefit of, inter alia, S. G. B., a son of K. B. in the sum of £2,000 per annum during his life. By the third codicil, dated September 5, 1963, the testator gave an annuity of £2,000 per annum for the benefit of S. B., a son of K. B. and the same person as S. G. B.
Lastly, the testator in his will made a bequest to B. B., a boy then aged about two years, of “my cameras, projectors, films and other photographic appliances and my watches (other than my calendar watch), chains, studs and other personal jewellery”.
The Supreme Court of New South Wales in its probate jurisdiction admitted all four documents to probate, and the trustee took out an originating summons raising five questions of construction arising out of the provisions of the testator's will and codicils. Those questions were answered by the Supreme Court as follows: 1 and 2, The gift to St. Vincent's Private Hospital was a valid charitable bequest; 3, the third codicil did not render ineffective the provisions of the first and second codicils; 4, S. B. was entitled to an annuity of four thousand pounds per annum; and 5, all the personal jewellery, the property of the testator, except those items specifically excluded, passed under the gift.
On appeal to the Privy Council it was contended, inter alia, that the purposes for which St. Vincent's Private Hospital was conducted were not charitable, nor were the Sisters of Charity a charitable organisation, and further that the private hospital was not carried on for purposes beneficial to the community because by charging substantial fees as a condition of admission, that section of the community regarded as “the poor” were excluded; that the cumulative effect of inconsistencies between the third codicil and the preceding codicils was to revoke the latter; so that the second annuity was substitutional, not cumulative; and that “my personal jewellery” meant items personal to the testator and did not include all items of personal jewellery that were his property.
Held, (1) that what the Sisters of Charity were empowered to do with regard to their general property was not a material consideration, because in respect of the money received by them from this estate they were bound by the trusts of the will to apply it exclusively for the general purposes of the private hospital (post, p. 1162E–H).
(2) That the general purposes of St. Vincent's Private Hospital, which was not governed by a constitution or set of rules, as they appeared from the evidence, were at the testator's death for the provision of a certain type of medical and nursing care and treatment for which there was a need and for which the general hospital did not provide; that the making of commercial profits was not among those purposes nor did they involve the use of the income for other non-charitable purposes (post, p. 1163D).
Per curiam. A gift for the purposes of a hospital is prima facie a good charitable gift is now clearly established both in Australia and in England.
(3) That it would be a wrong conclusion to draw from the cases that a trust for the provision of medical facilities would necessarily fail to be charitable merely because by reason of expense they could only be made use of by persons of some means, that to provide in response to public need medical treatment otherwise inaccessible but in its nature expensive without any profit motive might well be charitable; the test was essentially one of public benefit and indirect as well as direct benefit entered into account and in the present case the element of public benefit was strongly present, since the evidence here showed that a need existed for the type of accommodation and treatment provided by this hospital and although the charges were not low it could not be said that the poor were excluded, and that the gift to St. Vincent's Private Hospital was accordingly a valid charitable bequest (post, pp. 1164G–1165D, H).
(4) That the identical legacies of two thousand pounds to S. B. contained in the first and third codicils were not cumulative for although the third codicil did not revoke the former codicils the relative indicia to be considered showed that a strongly consistent scheme of benefit for a family had been constructed by the testator and the intentions thus disclosed were sufficient to repel a suggestion that by the third codicil he had intended to disturb that scheme by doubling the individual annuity given to S.B. (post, pp. 1168D, E, 1169E, F).
(5) That the bequest to B. B. of “my personal jewellery” included only the testator's masculine jewellery and excluded valuable jewellery formerly belonging to the testator's wife which she had bequeathed to him; and that the legacy as a whole bore the appearance of a gift of a number of articles of no great value such as a man might appropriately leave to a small boy absolutely and to include articles of a different order and value under the general phrase seemed contrary to the structure of the gift and out of keeping with the benefactions given to the members of that family (post, pp. 1170H–1171B).
A testator, Edmund Richard Emil Resch, died on October 2, 1963, leaving a residuary estate worth approximately A$8,000,000, which he disposed of by his will dated December 5, 1960, and three subsequent codicils dated May 22, 1962, September 24, 1962, and September 5, 1963. The will and codicils had all been drawn by the same solicitor, but the third codicil in point of time was described as a first codicil. Probate of the will and the three codicils was granted to the trustee named in the will, the Perpetual Trustee Co. Ltd., by the Supreme Court of New South Wales in its probate jurisdiction on November 7, 1963; and on July 21, 1964, the trustee took out an originating summons in the Supreme Court of New South Wales for the determination of five questions arising out of the will and codicils. The first and second questions in the summons arose out of the following disposition in the will:
“I direct my trustee … to pay two third parts of the net income of the said residue and of the...
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