Attorney-General (NSW) v Metcalfe [1904] HCA 14; (1904) 1 CLR 421 (28 June 1904)

HIGH COURT OF AUSTRALIA

His Majesty's Attorney-General in and for the State of New South Wales Appellant; and Bridget Metcalfe, Richard Thomas Watkins, William Watkins, Matilda Moloney, Michael Hogan, and Denis O'Kennedy Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

28 June 1904

Griffith, C.J., Barton and O'Connor, JJ.

Gordon, K.C., and Maughan, for the appellant.

Lingen and Mann, for the respondents other than Denis O'Kennedy.

Sheppard, for the respondent O'Kennedy.

Lingen, in reply.

Gordon, K.C., in reply,

Griffith, C.J.

The question that arises in this case is entirely one of construction of a will made by a widow. The material words are as follows: [His Honor then read the material portion of the will as reported above, and proceeded.]

It was conceded that, the gift of the land, with directions to sell and dispose of the same, and to expend the moneys derived from the sale upon certain specific objects, being followed by a gift of all the personal property to the same person for his own use and benefit, there was sufficient to show that with respect to the land a trust was created to carry out the objects specified. The question arises upon the words "to expend the moneys derived from such sale or sales in and towards Church or convent purposes at Cowra aforesaid, or for any other purpose or purposes that in his discretion he may think best"; whether those words create a good and valid gift for charitable purposes. The plaintiffs represent the next-of-kin, who claim that, the real property being given upon limitations and for objects uncertain there is an intestacy as to that property, and that the executor therefore holds it in trust to be distributed amongst them and the other next-of-kin. The Attorney-General has intervened, and claims that there has been a good charitable devise of the real property under the will. It is not disputed that if property is given upon trust to be expended on charitable or other purposes, and it is left wholly to the discretion of the trustee to decide what those other purposes shall be, the gift fails. The question, therefore, is whether these words "other purposes" in the will are to be read literally, or are to be qualified by the interpolation of some such word as "like" or "religious," so as to restrict them to purposes of a character similar to those actually specified, as if the words had been "for other like purposes," or "for other religious purposes." At one time, no doubt, the rule of ejusdem generis was somewhat liberally applied, so as to construe general words as being cut down by the use of antecedent specific words. But in the more modern cases, such as Anderson v. Anderson, (1895) 1 Q.B., 749, and others of the same class, there has been a contrary tendency, and in general the rule has been adopted of giving the words their natural construction. Looking at these words simply as they stand, we ask ourselves: What conclusion would an ordinary person come to as to the intention of the testatrix, upon reading the words "to expend the moneys ... in and towards Church or convent purposes at Cowra ... or for any other purpose or purposes that in his discretion he may think best?" Surely the natural idea suggested by those words is that the testatrix had absolute confidence in the Reverend Father O'Kennedy, and wished to entrust him with the disposition of this fund, to apply it in whatever way might seem to him proper. In In re MacDuff; MacDuff v. MacDuff, (1896) 2 Ch., 451, Lindley, L.J., said (p. 467): "Now, turning to this particular case, can we fairly get out of these words any direction that this £10,000 is to be applied, and applied only, to such purposes as the law can say are charitable? My answer is No, the words are too general, and too indefinite." Nor can we see in this will any implied direction that the fund in question is to be applied to charitable purposes only. It cannot, therefore, be held that there is a good gift of the real property for charitable purposes. The purposes are not sufficiently indicated, the words used being too general and indefinite, and the gift therefore fails. I should not have said so much but for respect for the learned counsel who argued the matter, and for the public who appeared by the Attorney-General. Otherwise we should have been quite content to rely upon the judgment of the learned Judge in the Court below, and the reasons given by him, in which we entirely concur, except, perhaps, as to his suggestion "that different minds might come to a different conclusion in this matter." In that we do not quite agree with him. We think that there is only one possible construction to be put upon the words of the will.

As to the costs, this being the only point at issue in the suit, the question arises whether the costs of the unsuccessful parties should come out of the fund. No doubt there is a general rule that, if an appellant is unsuccessful, primâ facie he must pay his own costs, and there is also the rule that, generally speaking, an unsuccessful defendant does not get his costs. But to this rule there are exceptions; for instance, in a case where the costs are incurred in a proceeding which is proper and incidental to the administration of the estate. The question, therefore, is, Was this proceeding proper and incidental to the administration? Now, it is clear that the learned Judge below suggested an appeal. Moreover, this may be fairly said that, as by the failure of this gift the next-of-kin have become entitled to property which would not otherwise have come to them, and was not intended by the testatrix to come to them, it is to them somewhat in the nature of a windfall. To order that these costs should come out of the estate would, in effect, having regard to the terms of the will, be to order them to be paid by the executor out of his own pocket, which would be manifestly unfair. We think, on the whole, that the costs of the appellant and of the respondent executor should come out of the proceeds of the land. These matters were expressly left open by the learned Judge below. In other respects the decision will be affirmed.

Judgment varied by directing that the costs of the Attorney-General here and below and the respondent O'Kennedy's costs of the appeal be paid out of the proceeds of the land.

Judgment, so varied, affirmed.

Solicitor, for the appellant, The Crown Solicitor of New South Wales.

Solicitor, for the respondents other than Denis O'Kennedy, D. T. Gilcreest, by Russell & Russell.

Solicitor, for the respondent Denis O'Kennedy, Curtiss & Barry.