AV |I4MR'D O' FARRELI AND OTHERS hick / EERPSTUAL TRUSTE: COMPANY LIMITED AND OMTIRS This is an appeal from the judgment of Harvey C.J. Bq. pronounced as long ago as the Zrd April 1925. It relates to a difficult set of provisions in the will of a testator who endeavoured to propound a detailed scheme for supporting officers, whom he called " lducational Experts ", in certain dioceses of the Roman a9) Catholic Church¢¢ _in New South Wales. At the request of the partiss, the appeal has been allowed to stand out of the list until 'the present in order that they might overcome by some agreement A the difficulties which have arisen in carrying out the scheme. fhis,however, has been found impossible, and we are now ealled upon to place a construction upon the provisions of the will. The first and most important question is whether the suns of money which the testator directs to be expended by articles I,7,8, and 9 of the will are in each case to be applied exclusively in or towards the payment of the salary, or salaries, of the educational experts. We egree with Harvey 0.J. thinking that this question must be answered in the affirmative. In the case of articles I and 7 , the terms in which the provisions are expressed are explicit, and allow of no e§cape from { i { ' ejek the conclusion: that' thé 'money must be so applied in salary and cannot be devoted to any other purpose. In the case of article 9 the language is not so explicit ,but the words "for such ich occur at the end of the article," clear that the sums which fall within % applied to the same object. Article S& ,however, contains no such definite expression. We cannot doubt,however,that the limitation upon the totsl amount to be received by 2 Diocese refers to the sum made up of the amounts applied under articles I or 7 and article 6& and wheh this is considered with the fact that only those dioceses which have made appointments of experts are to take, together With the context in which article 8 occurs , we think there can be do doubt o" the meaning of article 8, and that the ed in th surplus income to which it refers "ust be app. lini We are unable to at article 9 " the income to which such Diocese " entitled " the importance given to it by the appellant's counsel. Ye think it is merely a compendious reference to the benefit the Diocese takes by receiving a subvention to the salary of an expert. Wé do not say that the trustees must personally.pay the experts' salaries, but unless the trustees take a receipt and undertaking pursuant to article II, they are "not releived from-the resvonsibility of ascertaining that the money is in conformity with the testator's directions. The next question is vhether tne incom rising in any given year must be expended in thet year upon 5s ary payable for that year. A preliminery doubt may arise 2s to what period of twelve months is co the expre on " per annun " in articles 9, but. we agree witn the view upon which the decree of Harvey C.J. lq. proceads vig 3- that the period must be calculated from the date of the Consideration of the testator's death and its terms of the articles and of their operation has,however, satisfied us that the decree needs some modification in its rigid discriminat- ion between the income of different years. We think it is clear that the income of each year must be ascertained separately for the n the purpose of arriving at a surplus exceeding £400 per annum meaning of article %, and exceeding £000 within the meaning of article &. Dut when th: lable under srticle a sua is ave the wiole of tne sua referred in the payment of salary or-salaries for the year in which that income arose. Indeed the very words which introduce articles 7 and 6 " in the event of the money available exceeding £400 ( or 2800 pea. " require a computation {eh nover could be ct completely made before the end cf the year, and perhaps in some " 4VEN, tion until hint nat incone has avisen under thes! icles to enable the to apply it towards the paynent of the salery of ea ¢- © an educational expert, although the salary way be due after ck close of the car in which the income was earned. Ca other hand, do not think that income,which arose before the year in which the first educational expert was appointed, applied in payment of salary. Such income is derived before the scheme begins to operate and,unless accumulated pursuant to article 56 ' under article I0. ard to the amount of income derived from the all Dioceses have now appointed there will be ing 2600 yer ennun Io ow article/stior we have not overlooked the question d be applied in such an event. That question is, w iod saould be as we thin taken for ascertaining the surplus ? income earned in one year can be applied in the next, it may be said that there is no basis of time for considering whether there .is a surplus of income over £600 per annun for each Diocese. is We think this/an error. It is only necessary, in such an event, to consider whether in fact during 2 ar inore than 2600 for each Diocese with an expert has been available and has been distributed as required by articles 8 and 9 without regard to the question whether the income was all earned in that year, or some of it had been earned in a previous year. It is perhaps | necessary to add that upon the terms of articles & and 9 it is | plain that no Diocese can benefit under these articles, unless, before the year in which that benefit is distributed,it has appointed an . : IT. The modifications. which we think necessary rn : ' educational expert. to make in the decree in order to give effect to' these views will appear from the formal judgment to be pronounced.' The remaining question of importance which we are required realates to the qualification which to determine upon this appeal Lo article every such, whether embers of the teaching orders of the Sisters of 5t Joseph, the Sisters of ierey and the Christian Brothers are to be regarded words. Ss laywomen and laymen not use these expressions in their correct We think the testator " laywomen " can ecclesiastical meaning, if an ecclesiastical solecisi be considered as anything bu It Seerce of Harvey C.J. in lig varied as follows :- substitute for (A)(I) in the Lecree the following 2- (A)(I) chet it is the duty of the trustees to ascertain whether in each such year there is available (a) a sua not exceeding #400 under article I of the said will (b) 9 further sum exceeding the said sua of 2400 and not exceeding _sum exceeding «6800 under article 8 thereof and that, save in so far if at all as the apglication of any part of such sums is governed by the provisions of article IO thereéf, the purpose for which such sums must be applied is limite? to the payment of the whole or mt part of the salary of a duly appointed educational expert or experts. de In A (2) in the decree make the following amendments :- efter the words "in respect of which " strike out the words " for " such year salary is payable to an educatiohal expert " Gy substitutes 4 an edueationel before the end of the year ia. which such net income arose beon duly 2 pointed ". out tne words "" in ell " and substitute " in any year gumienging since the testetor's death commencing os af -resaid ". Strike out tne words " is payable only...... not payable " and substitute " must be applied to the purfose of paying the whole or "part of the salary of a duly apyointed educational expert or "experts and if and in so far as it cannot be so applied " Ee = eo ke the followi In (B) in the decree m ig amendments :- Strike out the words " for such year¥ salery is " educational expert " and substitute "en cduest "before the end of the year in which such net income arose been " duly appointer " strike out the words " in eli " and substitute " in auy " year since the tes Strixe out the words "is and substitute "aust be applied to the purpose of yhole or part of the salary cf a duly inted sdueotional expert or ed be "experts and if and in so far as it cannot be so appl client. estate ecn solicitor ar