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High Court of Australia |
CHURCH PROPERTY TRUSTEES, DIOCESE OF NEWCASTLE v. EBBECK [1960] HCA 88; (1960) 104 CLR 394
Will
High Court of Australia
Dixon C.J.(1), Kitto(2) and Windeyer(3) JJ
CATCHWORDS
Will - Construction - Condition affecting bequest of residue to remaindermen - Life tenant still living - Remainderman's interest forfeited if he and his wife do not profess Protestant Faith at date of life tenant's death - Trustees to be satisfied - Condition precedent or subsequent - Uncertainty - Public policy - Validity of condition.
HEARING
Sydney, 1960, May 26, 27; December 6. 6:12:1960DECISION
December 6.2. The executors and trustees appointed by the testator were his wife, the eldest of his three sons and a solicitor. The solicitor renounced probate, which was granted to the widow and the son. It would follow that unless new trustees are appointed it will be upon the eldest son that the duty will devolve of making a decision under this clause, that is to say, when and if the time to do so comes. But the widow has not died. The question set out by the testator has not arisen for decision. Nevertheless by an originating summons dated 19th August 1958 the widow, suing in her capacity of trustee, sought the determination of questions propounded by the summons involving among other things the validity of the proviso and the indefeasible vesting at the death of the testator of the interest which each son took. It will be noticed that the widow's co-trustee, her son, was not a plaintiff with her in the summons. Doubtless it was considered that his interest as a beneficiary in the question at issue made it right that he should not join as a party in a fiduciary character. He was joined as a defendant. The affidavits contain no explanation of the proceeding. As it stands it is a suit by one trustee who ex hypothesi cannot be concerned in the question at the time when it arises, if it does arise. Yet it is her suit and she brings it for the purpose of obtaining a decision as to the rights of beneficiaries in a future interest in events that although likely to occur have not happened and conceivably may not happen. (at p400)
3. The modern tendency to decide the effect of limitations of future interests before the question arises might be thought to have suffered some set back by the course taken in Davies v. Perpetual Trustee Co. (1959) AC 439; (1959) SR (NSW) 112; 76 WN 279 of allowing an appeal from an order forty years old made concerning a future interest at a time when a somewhat different understanding obtained of the principles upon which that order was based. In any case it is still the general prima facie rule that questions about future interests that will arise in events that have not yet happened and need not necessarily occur are not decided unless beneficiaries are hampered in their practical affairs in some significant respect by the uncertainty or some other positive ground exists for an anticipatory decree or order. There are cases where it is clear enough that eventually a question under a limitation must arise but until the events happen it cannot presently be known who will be interested under the rival interpretations or the contested operation of the limitation. That is a reason for refusing to decide the question until the events happen. But it is not this case. Here the doubt is whether and in what form the problem will arise and where the plaintiff is affected. Where a present right depends upon the decision or there are some other special circumstances to satisfy the court that it is desirable at once to decide on the future rights the court will do so; where every possible party is represented before the court and they are all of age the court may properly decide a future question. Cf. per Jessel M.R. in Curtis v. Sheffield (1882) 21 Ch D 1, at p 3 ; In re Staples; Owen v. Owen (1916) 1 Ch 322 ; cf. Re Sayer (1921) VLR 95 , per Cussen J. (1921) VLR, at p 100 . (at p401)
4. It might not have been difficult for the sons to show that the uncertainty about the operation of the proviso caused them present difficulties which made it right in point of justice to set the question at rest; but it is not their summons. It may be that the plaintiff in her capacity as trustee instituted the suit at their request and in their interest, but the affidavits do not say so; no reason appears from the evidence why the plaintiff raised at this time the questions for determination. A consideration of the claim that the condition is void for uncertainty leads at once to the question whether the distinction between conditions subsequent and conditions precedent is material to the present limitation and if so upon which side of the distinction the condition falls. In its turn that brings into consideration the nature of the limitation to each of the three sons. Is it contingent upon the son surviving his mother or if he predecease her do his executors or administrators take? Obviously the proviso cannot apply to a dead man and, even if his widow does not profess the Protestant faith, she is not his wife. Thus the question if considered as one depending upon certainty or uncertainty may involve more than the validity of the condition and extend to the possibility of a son's share being held undisposed of in case of his predeceasing his mother. Those taking as upon an intestacy were not made parties as such, but as it happens that there are no others but the plaintiff and the three sons who were all joined as defendants, that fortunately is not material. The proceedings were open however to the objection that they raised questions which could not affect the plaintiff whether as trustee or otherwise concerning the future interests of beneficiaries and the effect upon them of events that had not yet occurred and could only occur in the future. But the objection was not raised by or before the primary judge and if it had been raised it would seem likely that one or more of the sons would have assumed a different role in the suit and would have attempted to show why their interests justified an immediate application for the determination of the validity of the proviso. There is no doubt that the parties are sui juris and represent all possible interests. Although the problem is not certain to arise in the future it is very likely to do so. In all the circumstances it seems proper that upon this appeal, where the parties did not raise the objection we should pass it over. (at p402)
5. The governing declaration in the order appealed from has been settled in accordance with the terms of part of the summons but it is in a form by no means self-explanatory or satisfactory. However, it does declare that the interest in remainder of each of the sons "is indefeasibly vested notwithstanding the purported attachment thereto by the will of the testator of certain conditions". This gives effect to the decision of Else-Mitchell J. which was that the proviso amounted to a condition subsequent void for uncertainty. For reasons to which I shall briefly refer later I am not prepared to adopt the view that a condition, be it subsequent or precedent, requiring that a donee shall satisfy trustees that at the time the gift vests in possession he professes the Protestant faith is void for uncertainty; nor for that matter would I be prepared to hold it void for uncertainty if the condition was simply that he must, in fact as distinguished from in the opinion of the trustees, profess the Protestant faith. (at p402)
6. But upon another ground it appears to me that the proviso is void, and that is that it is contrary to public policy. The reasons why I so think depend upon the exact nature of the limitation and the application it would have to the actual situation of the donees and their respective wives. It is better to take the case of one of the two sons who had married Roman Catholics before the testator made his will. It is better to do so because his case shows the clause as directed against what I may call the continuance in combination of the two factors, the marriage and the faith of the wife. It is not a condition breach of which consists in the donee taking some future course of action to which the testator objects. The proviso in effect says to the donee: "Your marriage must be dissolved or your wife must change her religion: otherwise your patrimony will be forfeited. You have until your mother's death to resolve this dilemma." (at p402)
7. It may be conceded that a condition requiring a change of faith on the part of a donee if the condition is framed with sufficient certainty is valid and is not against public policy: cf. In re May; Eggar v. May (1932) 1 Ch 99 . Ramsay v. Trustees Executors and Agency Co. Ltd. [1948] HCA 44; (1948) 77 CLR 321 decides that notwithstanding the decision of Lord Simonds to the contrary in In re Caborne; Hodge v. Smith (1943) Ch 224 a condition the tendency of which is to encourage a party to a marriage to seek or desire to have it dissolved may be good, at all events if the contingency of the encouragement proving effective be not probable or real. That may be accepted though I see no reason to repent my own dissent; indeed I find myself ready to persist in the opinion that when you find that the law has adopted a settled policy, once it is seen that a condition subsequent is framed in opposition to that policy the law does not proceed to examine or weigh the probabilities of the inducement established by the limitation proving or not proving effective either in the given case or by considering the presumed responses of the average reasonable man. (at p403)
8. In the condition contained in the proviso to the gifts in remainder made by the will now before us general terms are used, but the purpose or at all events the effect is specific. It is specific because it applies to a precise situation in which each of two sons already stood and upon which the third was about to enter. It meant that to avoid the forfeiture of the gift the son must, whether by chance or design, obtain a change of the situation so that either his wife changed her religion or ceased to be his wife; and that must be before his mother died. For present purposes the condition that at his mother's death he himself should not be of the Roman Catholic faith may be left out of consideration and so may the fact that the gift in an alternative form takes effect subject to the same proviso in the event which did not happen of the testator's wife predeceasing the testator. It is true that, had that event occurred, assuming the proviso to be valid and not inoperative, it would have been determined at the death of the testator whether the condition was in each case fulfilled; there would have been no interval for recantation of faith or dissolution of marriage. But we are concerned with the form of the proviso which applies to the events that did happen. In a marriage between a Protestant husband and a Roman Catholic wife it makes the continued adherence by the wife to her faith the cause of his forfeiting his very substantial share in his father's estate with the alternative of his disencumbering himself of his wife before his mother dies. Whether designedly or not such a disposition creates an opposition between the wife's religious beliefs and a serious temporal interest of her husband, and doubtless by consequence of her own. If she cannot or will not desert her faith it provides an inducement to him of a pecuniary or proprietary nature the operation of which cannot but be in opposition to the policy of the law, its policy to preserve and maintain marriage. (at p404)
9. Assuming that the donee himself retains his Protestant faith, he and his wife remain conscious that her adherence throughout his mother's life to her own faith stands between him and his inheritance. The husband on his part might be a man of firm mind and of a lofty and generous sentiment, but it would be difficult for many a man in such a situation to prevent his mind on occasions from adverting rather to the advantages of a divorce than the blessings of matrimony, that is to say if ever unhappy differences arose or clouds appeared which unless dispelled might develop such a prospect. In an uneasy marriage a more fruitful apple of discord could hardly be placed upon the domestic board. (at p404)
10. The case is not covered in any one of its aspects by precise authority but the condition when all its aspects are brought under consideration appears to me to be one which upon well-settled principles is obnoxious to the policy of the law and void. (at p404)
11. It remains to state briefly why I am not prepared to adopt the view that the condition is void as a condition subsequent. I am not inclined to dispute the characterization of the proviso as a condition subsequent, but I do not regard that as very important in considering the validity of the proviso expressed as it is and operating as it would if valid. If the matter arose for decision I would say, I believe, that the gift in remainder to the sons is better construed as a gift to each of them of the interest vested in him (that is, of course, subject to the operation of the proviso were it valid) and passing to his executors and administrators even if he die before his mother. I think the reference to his professing the Protestant faith should not be read as implying that he must be alive at his mother's death but rather as applying if he is alive at that event. On that view there is no difficulty in treating the proviso as intended to defeat a vested interest, which if not defeated, would devolve upon the executors or administrators. It is upon this interpretation of the provision that I am prepared to treat the condition as creating a condition subsequent rather than a condition precedent. The form and language of the proviso is of course that of a condition subsequent defeating an otherwise continuing interest, but if the true interpretation of the limitation had resulted in its being necessary that the son should survive his mother and profess the Protestant faith, it would have been more in accordance with that interpretation to treat it as a contingent gift dependent on both contingencies. But treating the proviso as expressing a condition subsequent in that way, I fail to see that the meaning is affected or the propriety of holding the condition uncertain is increased. It is none the less a condition operating only at a defined point, namely the termination of the life estate, and once for all, a condition that must be complied with before an estate or interest vested already in interest vests in possession or enjoyment. There is no room in such a limitation for the application of the usual reasons given for requiring certainty in the definition of conduct or occurrences which will work a forfeiture of an otherwise continuing estate or interest although a similar lack of definition of a like condition precedent would not prevent the acquisition, attachment, commencement or "vesting" of the estate or interest. (at p405)
12. But however that may be, it seems to me that notwithstanding the great lengths to which the decided cases have lately gone in destroying on the ground of uncertainty conditions requiring adherence to a particular religious belief, faith or church, it is unreal to maintain that a condition that the donee in remainder must profess the Protestant religion at the time when the particular estate determines is void for uncertainty. The unreality becomes even more striking when the true meaning of the condition is seen to be that the trustees shall be satisfied that the donee professes the Protestant religion. It is the trustees' satisfaction that forms the condition and not the fact of professing the Protestant faith, be the fact defined sufficiently for the purposes of every kind of condition subsequent or not. One need not doubt that if the thing about which a trustee or other named person is to be satisfied is defined or described in terms leaving it uncertain about what it is he is to be satisfied, then the condition will still be bad. Such a case was In re Jones; Midland Bank Executor and Trustee Co. Ltd. v. Jones (1953) Ch 125 . But where the objection is that matters of degree are involved or that cases can be imagined in which the application of the criterion would involve doubt or difficulty that must be resolved by judgment, in such a case the distinction may be decisive. This, I think, is made clear by what Jenkins J. said in In re Coxen; McCallum v. Coxen (1948) Ch 747, at pp 761, 762 . (at p405)
13. It is not my purpose to enter fully into the great distinction between this case and Clayton v. Ramsden (1943) AC 320 ; In re Blaiberg; Blaiberg and Public Trustee v. De Andia Yrarrazaval and Blaiberg (1940) Ch 385 ; In re Donn; Donn v. Moses (1944) Ch 8 ; In re Moss's Trusts (1945) 1 All ER 207 ; Re Wolffe's Will Trusts (1953) 2 All ER 697 and Re Tarnpolsk (dec'd) (1958) 3 All ER 479 . Fullagar J. in In re Harris (dec'd) (1950) VLR 182 has discussed the earlier of them and there is a further discussion by Sholl J. in In re Kearney (dec'd) (1957) VR 56 . My decision does not depend upon the question and it is enough for me to say that whatever difficulties there may be in determining whether a beneficiary qualifies as being of the Jewish religion or of Jewish race, I see no reason why there should be any like difficulty in dealing with the problem which vexed the testator in the case of his three sons and his three daughters-in-law, namely of determining whether a son had ceased to profess the Protestant faith or whether a daughter-in-law had come to do so. In so stating the question I do not overlook the possibility of unexpected events occurring so that the actual wife of a son at the death of his mother might not be the wife to whom he was married at the testator's death. Nor have I overlooked the many applications of the word "protestant", or the fact, to state it in the language of the Oxford Dictionary, s.v. "protestant", that "in more recent times the name has been disfavoured or disowned by many Anglicans". But we are not engaged in an exercise to show how "absolute" we are and to defeat the testator's intentions on the principle that he must speak by the card or equivocation will undo him, but in an attempt to ascertain his intentions and to apply them according to law. As I see it his intention is clear enough and gives rise to no difficulty in its application; but his intention is contrary to the policy of the law and should fail on that ground. (at p406)
14. For these reasons I think the appeal should be dismissed. (at p406)
KITTO J. The learned primary judge has decided that the proviso creates a condition subsequent, and that it is void for uncertainty. I agree that the condition is subsequent, for I think its meaning is that the interest of each of the named sons in the trust fund is vested subject to forfeiture if, at the death of the widow, he (if he be then alive) and his then wife (if he be then married) do not both "profess the Protestant faith". (at p406)
2. But that the condition is void for uncertainty I cannot agree. It is contended that no clear and definite test is provided by which the trustees may decide, when the appropriate time comes, whether the forfeiture takes effect. There might well be much force in this contention if it appeared that the expression "profess the Protestant faith" was used in a sense which assumed the existence of an ascertainable catalogue of beliefs known collectively as the Protestant faith. There is, of course, no such catalogue; it is notorious that there are wide differences on matters of religious doctrine among many who according to ordinary usage are to be described as Protestants. But for this very reason it must be wrong, prima facie, to constue a condition that a legatee shall profess the Protestant faith as intended to refer to a definite corpus of beliefs identifiable under that description. The more reasonable construction, and the construction which in my opinion the condition bears in the present case, is that which treats the condition as requiring only that the propositus shall hold himself out as belonging to what may be described, following the Oxford English Dictionary, as the general body of Christians descended from the churches or bodies which repudiated the papal authority and separated or were severed from the Roman communion in the Reformation of the sixteenth century. He must, in other words, ostensibly adhere to or ally himself as regards religious belief with one or more of the churches or other religious bodies which compose Western Christianity, other than the Roman Catholic Church and the Old Catholic Church: see Webster's New International Dictionary, s.v. "protestant". In my opinion, the condition is not void for uncertainty. (at p407)
3. A second ground of invalidity has been suggested, namely that the condition is contrary to public policy because, although not on its face intended to subvert the public good (if it were, the evident intention would be enough to undo it: Fearon v. Earl of Aylesford (1884) 14 QBD 792, at p 808 ) it nevertheless has a tendency to do so. This is a ground which looks to the general tendency of the disposition, and not to a likelihood which may exist in a particular case by reason of the character or personality of any of the individuals concerned: Egerton v. Brownlow [1853] EngR 885; (1853) 4 HLC 1, at p 196 [1853] EngR 885; (10 ER 359, at p 437) ; In re Wallace; Champion v. Wallace (1920) 2 Ch 274 . The general tendency of the disposition is to be decided as a matter of law, and the law does not regard a disposition as having a tendency against the public good because it offers an inducement to a change of religious adherence: Hodgson v. Halford (1879) 11 Ch D 959 ; Clayton v. Ramsden (1943) AC 320, at p 332 . Whether the public interest is harmed or helped by the defection of a Roman Catholic from the faith of his or her church is a question upon which the law does not assume to pronounce. (at p407)
4. What general tendency inimical to the public good is there in the condition we have to consider, as applied to the case of a son of the testator married to a woman who does not profess the Protestant faith? Surely not a tendency to induce murder; that would be a fantastic suggestion: Fender v. St. John-Mildmay (1938) AC 1, at p 16 . A tendency, then, to bring about a dissolution of marriage, by inducing the husband either to take advantage of a cause of divorce given by his wife of which otherwise he would not have availed himself, or to commit or pretend to commit a matrimonial offence and then persuade his wife to divorce him? Of course it is conceivable that one of the sons mentioned in the will might be so swayed by cupidity as to adopt some such course, with the object of ridding himself of a non-Protestant wife whom he found so steadfast in her faith, or in her rejection of faith, as to stand an unyielding obstacle to his avarice. But a possibility that some individuals might be found who would respond so disgracefully to the existence of the condition is not enough. Alderson B. may have been guilty of a slight overstatement when he said in Egerton v. Brownlow [1853] EngR 885; (1853) 4 HLC 1 (10 ER 359) : "The truth is, that an active imagination may find a bad tendency arising out of every transaction between imperfect mortals; and to use this as a criterion for determination, would make every case depend on the arbitrary caprice of an acute Judge" (1853) 4 HLC, at p 109 (10 ER, at p 403) . But he was on good ground when he asked himself, in reference to a suggested illegal tendency, "Is, then, this in the ordinary course of the business of human life?" (1853) 4 HLC, at p 109 (10 ER, at p 403) . The test is to be found, differently expressed but in effect the same, in a passage in the speech of Lord Atkin in Fender v. St. John-Mildmay (1938) AC 1, at p 13 , which Latham C.J. quoted and Starke J. relied upon in Ramsay v. Trustees Executors and Agency Co. Ltd. [1948] HCA 44; (1948) 77 CLR 321, at pp 326, 330 . Adapting his Lordship's words, it may be said that a condition of a gift has no such tendency to public mischief as will make it void, unless the donee will generally, in a majority of cases, or at any rate in a considerable number of cases, be exposed to a real temptation, by reason of the condition, to take a course harmful to the public good, and will be likely to yield to the temptation, Applying that test, I am of opinion that none of the possibilities I have mentioned justifies the conclusion that the condition in question has such a general tendency to the public ill that it should be held to conflict with the policy of the law. (at p408)
5. It is suggested that the desire of a Protestant husband to take a testamentary benefit and the loyalty of his non-Protestant wife to her principles on matters of religion may so directly conflict that matrimonial harmony will be endangered and perhaps destroyed. It must of course be recognized, for it is notorious, that differences in religious faith are apt to produce unhappy friction between married people, not seldom weakening, and sometimes even breaking the bonds of home and mutual devotion. It is not difficult to believe that in some cases the offer of a legacy to one spouse on condition that the other will renounce an existing religious adherence may lead to discord between them. But whether it will, and to what extent it will, must depend in every case on the strength of their mutual affection, on their personalities, on the degree of intensity which already characterizes their feelings towards one another in relation to religious things, and on other circumstances such as the financial position in which they will find themselves if the legacy be lost. What generalization would it be right to make on such a matter? In my opinion, none. In particular, I am not prepared to affirm that in the generality of cases, in "the ordinary course of the business of human life", the condition would be likely to produce such a degree of ill-feeling between husband and wife that one or both would probably so act as to break up their marriage or break up their home. In my opinion no less affirmation would suffice to justify a decision that the condition offends against the policy of the law. The first question, as Lord Macmillan would say, must always be - what is the principle of public policy which would be infringed by the upholding of the condition? (cf. Beresford v. Royal Insurance Co. (1938) AC 586, at p 603 ). The general principle that the institution of marriage is sacrosanct, and in particular that neither husband nor wife should be given an inducement to divorce or separation, no court, I imagine, would hesitate to maintain. But there is not, I think, any principle of law which is offended by the creation of a potential cause of dissension between spouses, unless the dissension would be likely to result in divorce or separation. Once go beyond that, and it becomes difficult to see where or on what principle a line is to be drawn. Is it to be held obnoxious to the law that a gift to a wife should be conditional upon her husband taking her to live in a new place for which he may have no liking, or upon his giving up participation in his favourite sport, or upon his ceasing to smoke cigars? If the answer be offered that it is all a question of degree and that the law frowns only when the condition relates to something about which people's feelings are apt to be strong, so that the dissension it may cause will be likely to jeopardize the peace of the home, I feel obliged to seek firm ground by going back to basic principle. Granted that some conditions may have in them the seeds of domestic discord - so, for the matter of that, may testamentary benefactions themselves - the question must always be, as I understand the authorities, whether there is, generally speaking, a likelihood that the discord not only will arise but will lead one of the spouses to seek an end to their marriage or to their living together. (at p410)
6. I may take as illustrating the point the case of In re Fry; Reynolds v. Denne (1945) Ch 348 , where a gift by will to a married woman on condition of her taking and continuing to bear the testator's surname was held void for several reasons, including the reason that it was contrary to public policy. Vaisey J., who decided the case, spoke of the embarrassments and inconveniences which were likely to arise from a wife's having a surname different from her husband's, and held that the condition was calculated to produce consequences so undesirable that it ought to be regarded as inoperative on public grounds. I doubt whether any case goes further on this branch of the law; and two observations may be made upon it. The first is that at least one can see in the condition some tendency to cause husband and wife to take diverging paths in life: not only might disagreements arise between them, but if the wife should insist on complying with the condition the result might well be, in the end, a separation. Assuming that the decision was correct, that, in my opinion, must be its justification. (at p410)
7. The second observation is suggested by a sentence near the end of the judgment: "The precedent books show that the right form of a name-clause where the beneficiary is or may become a married woman is to place the obligation not upon her alone but upon her husband as well" (1945) Ch, at p 354 . A condition observing this injunction might well, in its application to particular spouses, cause quite acrimonious disputes; yet Vaisey J. saw in that no invalidating circumstance. What impressed his Lordship was that such a condition would call for unity and not diversity of action on the part of the spouses. And the same may be said here. To impose a condition on a gift that an existing religious cleavage between husband and wife shall be bridged by an altered profession of faith on the part of one of them may be to cause discord and unhappiness if that one is unwilling to fulfil the condition; but fulfilment of it must tend to enhance domestic concord. (at p410)
8. By this condition, a husband, even though impatient and exasperated by what he might consider his wife's stubbornness, is given no inducement to separation. It might, no doubt, occur to him that a divorce would provide one way of getting his hands on the money; but as I have indicated, I find myself unable to accept, as a general proposition, that in most cases, or even in a considerable number of cases, the pecuniary advantage thus bestowed upon dissolution of the marriage would appeal to the husband so strongly that, notwithstanding all considerations of opposite tendency, he would be likely to feel a real temptation to seek an end to his marriage, and to yield to it for the sake of the lucre. (at p411)
9. In my opinion, the condition in the present case is not contrary to law, and the appeal should be allowed. (at p411)
WINDEYER J. The will contains these words: "the devise and bequest to each of my sons shall be on the condition that he and his wife shall at the date of the death of my said wife . . . profess the Protestant faith". It was contended that this condition is void either for uncertainty or as being contrary to public policy. (at p411)
2. On the first question much argument was directed to whether the condition was precedent or subsequent. It is annexed to gifts in remainder to named persons. If a son of the testator should predecease his mother, the life tenant, his executors would take, and the condition could then have no operation; but if he survives his mother, his interest will not take effect in possession, and will be forfeited unless at the date of her death he professes the Protestant faith and his wife, if he be then married, does so too. Such a provision is, I consider, a condition subsequent. But here the distinction is of little importance in relation to the need for certainty. The share is forfeited unless at a particular point of time the beneficiary has the qualification that the testator demanded. That is all. No greater certainty of meaning seems to be necessary than would suffice if the same requirement were a condition precedent. (at p411)
3. As I understood the argument that the condition was uncertain it was that the word "Protestant" has no precise and determinate meaning; and that "the Protestant faith" is not a definite body of doctrine; so that it is impossible to say whether a person does or does not profess the Protestant faith. Many cases were referred to in which, in the last twenty years especially, uncertainty has been found lurking in phrases like this. But all those cases, certainly all that are binding upon us, are on examination distinguishable. We would, I think, be shutting our eyes to the world around us and ignoring the ordinary use of words in Australia if we were to hold that, because of what was said in some of those cases, the words of this will do not clearly express a definite requirement that the testator had in mind. He wanted his property to go to his sons after their mother's death if they and their wives were then Protestants. He cast upon his trustees the duty of determining whether they then professed the Protestant faith. No lawyer can say that the word "Protestant" cannot have a meaning for legal purposes. It is used in many statutes, including the Act of Settlement. It is used too in the Bill of Rights, with its meaning there expanded by the requirement of the declaration contained in the Test Act. Of the corresponding provision that the Sovereign must not be married to a Papist, which Burnet claimed was his work, Lord Macauley wrote: "He had little reason to boast; for a more wretched specimen of legislative workmanship will not easily be found. In the first place no test is prescribed. Whether the consort of a Sovereign has taken the oath of supremacy, has signed the declaration against transubstantiation, has communicated according to the ritual of the Church of England, are very simple issues of fact. But whether the consort of a sovereign is or not a Papist is a question about which people may argue forever. What is a Papist? The word is not a word of definite signification either in law or in theology". Argument addressed to us on the meaning of the word "Protestant" followed a somewhat similar line. But in my view an expression that since 1701 has been certain enough for limiting the succession to the throne of England is certain enough for disposing of the estate of a resident of East Maitland in New South Wales to-day. If it be necessary to elaborate the word "Protestant" as used in Australia to describe certain religions, I take it to mean primarily those churches of Western Christendom that severed connexion with Rome at the time of the Reformation - principally those of the Lutheran, Reformed (that is Calvinistic) and Anglican communions and disciplines - and their various offshoots. Far-fetched questions arising out of schisms later in time than the Reformation do not make the meaning uncertain. If it should become necessary, which is most unlikely, to know what would be the effect of a son of the testator being married to an Old Catholic or Jansenist, for example, the question could, I think, be determined. Still less, I think, can anything turn upon esoteric doctrine, or upon mere nomenclature, as for example, that some members of the Church of England prefer not to be called Protestants or that Irvingite congregations adopt the name Catholic and Apostolic Church. Dialectical considerations of that kind do not unsettle the meaning of the will. Nor is it to the point that outside the Western Churches there are great bodies of Christians who are neither Roman Catholics nor Protestants, not only in the Orthodox Church, but among some of the lesser churches in Syria and the Levant, including those that maintain monophysite doctrine. Some of them might still, in Gibbon's phrase, "equally disappoint the prejudices of a Papist or a Protestant". It is, I imagine, in the last degree unlikely that one of the testator's sons will at his mother's death be married to an adherent of the Orthodox Church or of one of the Uniate Eastern Churches. But if so, the trustee of the will would have to determine, and could determine, whether or not, in the particular case, his wife professed the Protestant faith within the meaning of that expression as used by the testator. If a description is not itself inherently uncertain and has an objective meaning, but its application to cases upon the periphery of its denotation could give rise to difficulty or debate, then committing the decision to some specified person may make its validity the more sure. The Court then has only to ascertain what decision the nominated person has in good faith come to on a question of fact of which he was made the judge. (at p413)
4. But, it was said, the testator did not require his sons and their wives to be Protestants but to "profess the Protestant faith". This seems to me too refined a distinction on which to find the condition uncertain. So far as a profession of faith is required, it is for the trustee to determine whether it has been made. To profess the Protestant faith here means, I think, to declare unequivocally allegiance or adherence to a particular Protestant church. Alternatively, a general statement of acceptance of Protestant Christianity, coupled with a specific repudiation of Roman Catholicism would, I think, suffice. Neither the Court nor anyone else can for the purpose of deciding a right to testamentary benefits test the inner convictions of a beneficiary nor seek to ascertain the depth of his or her belief. That would be an impossible task. Moreover, persons who count themselves and are counted as members of a religious denomination are seldom skilled in theology or deeply versed in doctrinal distinctions. Their "beliefs" are the tenets of their Church, simply because they are its tenets. Its forms of worship and its rites may mean much for them and evoke their loyalty without the details of its doctrine commanding their intellectual assent, or even their close attention. It may be that for many people, again to quote Gibbon : "the volumes of controversy are overspread with cobwebs; the doctrine of a Protestant church is far removed from the knowledge or belief of its private members". But that is true of many faiths. And, in my view, still less is it to the point to argue that, in a theological sense, there is not one specific body of doctrine or dogma that can be called the Protestant faith. These considerations are really remote from the construction of this will: and all the more so because, as has been said, "the simple word Faith . . . conveys quite different meanings to the Catholic and the Protestant and evokes dissimilar associations" (The Christian Dilemma by Dr. Van De Pol translated 1952, p. 32). What the testator wanted was that his sons and their wives should be Protestants. I think that this condition he imposed upon his beneficiaries was not uncertain. But is a condition demanding that a beneficiary and his or her spouse be adherent to a particular religion a condition that the law allows? That is the next question. (at p414)
5. Speaking generally, a man may leave his property by will as he wishes and to whom he wishes. He may, if he wishes, provide that his property shall go only to persons of a particular religion. He may stipulate that a prospective beneficiary will be disqualified unless he renounce a particular faith (In re Cuming; Nicholls v. Public Trustee (S.A.) [1945] HCA 32; (1945) 72 CLR 86 ). There is, as far as I am aware, no more objection in law to giving a man a legacy or making a payment to him on condition that he leave one religious congregation and join another than there is to buying the allegiance of a football player for a particular club if no breach of contract be involved. Furthermore, a testator may disqualify from participation as a beneficiary anyone who should marry a spouse of a particular religion, or not marry a spouse of a particular religion. Such stipulations are common enough; and, until the modern tendency of courts to examine them critically to see whether they contain any imprecision or uncertainty, they have been commonly upheld. But this case goes further. It is one thing to say that a man can benefit only if he be himself of a particular faith or marries someone of that faith. It is a different thing to say that a man, being married, can only inherit if his wife change her faith : and that is what this testator has tried to secure. In form the condition is one imposed upon the husband; he must at the date his mother dies be either an unmarried Protestant or a Protestant having a Protestant wife. But how is he to perform the condition? To use the words of Stuart V.C. in Wilkinson v. Wilkinson (1871) LR 12 Eq 604 , "Upon the construction of the language it is extremely difficult to say how the condition is to be performed. The testatrix knew that the plaintiff was married and that her ceasing to reside at Skipton could not depend upon herself, but upon her husband. That being so, what is the value of such a condition? It is a condition imposed upon a person who is not the person that must really perform it" (1871) LR 12 Eq, at p 608 . The circumstances of that case differed from this; but the Vice-Chancellor's words are significant and they lead to the query : is this condition against public policy, that is to say against the policy of the law? (at p415)
6. I am not unmindful of warnings that have been given, warnings that are more remarkable for variety of metaphor than serviceable as guides. Public policy we know is "a very unruly horse" (1824) 2 Bing, at p 252 (130 ER, at p 303) ; it is also "a treacherous ground for legal decision" (1902) AC, at p 500 ; "a very unstable and dangerous foundation on which to build until made safe by decision" (1902) AC, at p 507 ; "slippery ground" (1938) AC, at p 12 ; "a vague and unsatisfactory term and calculated to lead to uncertainty and error when applied to the decision of legal rights" (1853) 4 HLC, at p 123 (10 ER, at p 408) ; and much else. And I am aware too that those who base their decisions upon consideration of public policy are likely to be reproached with "arbitrary caprice" or reminded that "the doctrine should only be invoked in clear cases in which the harm to the public is substantially incontestable and does not depend upon the idiosyncratic inferences of a few judicial minds", as Lord Aitkin expressed it in Fender v. St. John-Mildmay (1938) AC, at p 12 . But I hope it is not a mere idiosyncracy of mine to think that planting seeds of discontent and discord between spouses is contrary to the policy of the law. The law provides, it is true, for the dissolution of marriage as a remedy for proved breaches of the obligation of marriage. But provisions enabling divorce merely emphasize that stability of marriage is the general policy of the law. And that stability must depend upon marriages being in general supported by harmony and sustained by happiness. In my view the policy of the law is not merely that marriages should not break up by divorce or separation. It is rather that the consortium of matrimony and all that that means, should not be interfered with, hampered or embarrassed - the expressions are Lord Aitkin's in Fender v. St. John-Mildmay (1938) AC, at p 16 . I adopt too his suggestion that "the moral ideal and the legal obligation are expressed in the promise to love and to cherish" - an expression of matrimonial duty not the worse in law because it is derived from the Book of Common Prayer. Has the condition that the testator here has sought to impose upon his gift to his sons a real and significant tendency to hamper and embarrass spouses in the performance of this duty? We are not concerned with the character of the particular individuals concerned in this case. We are concerned only with what is the likely influence and practical result, speaking generally, of such a disposition. We are not concerned that, as Lord Lyndhurst recognized in Egerton v. Brownlow (1853) 4 HLC, at p 162 (10 ER, at p 424) , "there may be exceptions, honourable exceptions, to such an influence". Many noteworthy expressions of the general principle to be applied can be culled from what was said by the judges in that case. But it is to be remembered that in applying those principles their Lordships did not accept the advice of the majority of the judges and reversed the decreee of Lord Cottenham, the Lord Chancellor. I shall quote one passage from Lord Brougham's speech : "The tendency is alone to be considered, and unless the possibility is so remote as to justify us in affirming that there is no tendency at all, the point is conceded. Gifts, bequests, conditions, contracts are illegal from their tendency to promote unlawful acts, without regard to the amount of the inducement held out, or interest created, the position of the parties, or any other circumstances which go to affect the probability of the unlawful act being done". (1853) 4 HLC, at p 174 (10 ER, at p 428) . This utterance, made in the course of a speech characteristically powerful and rhetorical, may be over emphatic. But it does not, I think, depart from the principles that run through the speeches of the other members of the House. How in the light of these principles does the condition we have to consider stand? The phrase "unlawful acts" is not restricted in this context to acts that the law condemns and the doing of which entails direct legal consequences. Its meaning can comprehend, it seems to me, things that are directly subversive of the integrity of a relationship that it is the policy of the law to maintain. Is that the position here? I accept, of course, and without hesitation, the decision of the majority of this Court in Ramsay v. Trustees Executors and Agency Co. Ltd. [1948] HCA 44; (1948) 77 CLR 321 in relation to the facts of that case. But it was a very different case from this. (at p416)
7. I do not assume that the necessary tendency of a condition such as that now in question is to provide an incentive to divorce or prevent the reconciliation of differences after grounds for divorce exist. It is not, in my view, merely fanciful to suppose that it might in some cases do so: but that that alone would not be a ground for denying it validity I do not dispute. In many of the more important cases in which dispositions and transactions have been held invalid because against public policy there have been differences of judicial opinion. Because that is so, and because the opinion that I have formed of this matter differs from that of my brother Kitto, I have hesitated lest my opinion involve the assertion of some new head of public policy. But I do not think that it does, for I agree, with respect, with the Chief Justice that to hold the condition here void is consonant with principle. And, although the topic is different, it is of some significance that in In re Kersey (1952) WN (E) 541 , Danckwerts J. held void a name and arms clause that required a married woman to change her surname. He said that "It was very undesirable that a wife should have to bring pressure upon her husband to change his name in order that she might not be deprived of an estate to which she had succeeded"; and that he "could not conceive anything more likely to cause differences between husband and wife than a clause containing the provision of this character". Because it was likely to cause differences between husband and wife it was invalid (cf. In re Neeld dec'd; Carpenter v. Inigo-Jones (1960) Ch 455 ). (at p417)
8. The condition with which we are concerned is not, in my view, to be judged as if it were of the same order as other conditions that can be supposed, as for example that a spouse give up smoking or resign from a race club. Doubtless such demands, or indeed any conditional gift might lead to matrimonial discord. But they seem to me to operate in circumstances very different from those that surround religious convictions and loyalties. It is not merely that for many people these evoke feelings of greater intensity and depth. It is also that they are often closely woven into the very fabric of marriage. To many people marriage is a sacrament: and for still more, for whom it is not strictly in a theological sense a sacrament, it is hallowed and sanctified. The vice of the situation that this condition creates does not, I think, arise from the possibility of cupidity on the part of the husband overmastering affection and considerate loyalty. It arises rather from the conflict of emotions, loyalties and duties that it creates for the wife. She must decide before a given date whether to adhere to her faith and thus cause her husband to lose his patrimony, or in the interests of her husband and their children to renounce her faith. It is not, I think, fanciful to regard such a situation as containing the seeds of unhappy differences and not the less so if the spouses be good and conscientious people. I cannot accept the view that a will, such as this, is likely to promote family harmony because it provides a pecuniary inducement for the wife to adopt her husband's religion. Suppose that under the wills of different testators, a Protestant wife is given a legacy if her Catholic husband should become a Protestant, and the husband given a legacy if the wife should become a Catholic: the situation has possibilities for a casuist or a novelist: but, in my view, a lawyer should demolish it at once by saying that the conditions were void. (at p417)
9. The advancement of religion is the policy of the law and the proper subject of a good charitable trust. The law in Australia has no preferences concerning religions. It is, however, interested in the preservation of matrimony. Marriages between Protestants and Catholics, if neither spouse is ready to embrace the faith of the other, may, it is well-known, prove precarious unless there be much goodwill and tolerance. Persons in that position ought, I consider, to be free from interferences by pressure or persuasion, by either the living or the dead, in a matter that properly concerns only themselves. In short while the testator could have lawfully required that his beneficiaries, his sons, be Protestants, his attempt at testamentary proselytizing their wives makes the whole condition invalid. I do not think the condition can be severed and treated as validly directing only that the sons should be Protestants. That is not what the testator directed. The condition is thus ineffectual in law, and those concerned may disregard it entirely if they wish. (at p418)
10. Although this suit appears to be premature, I agree that, for the reasons the Chief Justice has given, it is proper that we entertain the appeal. And, notwithstanding my respect for the opposing view, I think we should dismiss the appeal. (at p418)
ORDER
Appeal dismissed. - The costs of all parties of the appeal to be paid out of the estate, the costs of the plaintiff being taxed as between solicitor and client.
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