Barby v Perpetual Trustee Company (Limited) [1937] HCA 64

Barby v Perpetual Trustee Company (Limited) [1937] HCA 64

The will shows a general charitable intention to benefit necessitous returned soldiers and their widows, children and grandchildren. The specific scheme for settling them on land is but a means to further that intention, not the exclusive purpose. The trust is a valid charitable trust, and if the detailed scheme is...

Source-derived case information.

Parties
Appellants: Barby and others; Trustee/respondent: Perpetual Trustee Company (Ltd.); Respondent: Attorney-General for New South Wales
Jurisdiction
Australia
Procedural Posture
Appeal / High Court Appeal From Supreme Court of New South Wales
Outcome
Appeal dismissed
Legal Topics
Charitable Trusts, Cy Près Doctrine, Construction of Wills
Equity Charities Law Wills and Estates Charitable Trusts Cy Près Doctrine Construction of Wills

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Parties

Barby and others

Appellants

Perpetual Trustee Company (Ltd.)

Trustee/respondent

Attorney-General for New South Wales

Respondent

Procedural Posture

Appeal / High Court Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether the trust for the relief of necessitous returned soldiers and their dependants is a valid charitable trust
  2. 2 Whether the will displays a general charitable intention to justify application cy-prés if the scheme proves impracticable
  3. 3 Whether the ultimate disposition of land under the scheme is part of a charitable purpose

Ratio Decidendi

The will shows a general charitable intention to benefit necessitous returned soldiers and their widows, children and grandchildren. The specific scheme for settling them on land is but a means to further that intention, not the exclusive purpose. The trust is a valid charitable trust, and if the detailed scheme is impracticable, the court may apply the estate cy-prés to further the general charitable intention.

Court Disposition

Appeal dismissed

Orders

  • Order of Supreme Court affirmed with a variation to insert 'the whole of' the income and capital of the residuary estate where referenced
  • Attorney-General and trustee to have their costs out of the estate as between solicitor and client