Congregational Union (NSW) v Thistlethwayte [1952] HCA 48

High Court of Australia Dixon C.J. McTiernan, Williams, Fullagar and Kitto JJ. Congregational Union (NSW) v Thistlethwayte [1952] HCA 48

ORDER The order of the Court was that the decretal order of the Supreme Court be varied as follows:—

1. By deleting therefrom the following words:—"And this Court doth further declare that the direction in the will of the testator ninthly as to the balance of the said income that until such time as the distribution of the final balance of income from the testator's said estate should come into force as in the testator's said will provided the trustees of the said will shall expend any part or the whole of such balance of income from year to year in improving and developing the Gordon estate referred to in the said will by erecting suitable tenantable buildings thereon or otherwise as they in their discretion may think fit or they may in their discretion invest for the general purpose of the said will such balance of income or any part thereof from year to year instead of expending the same is not valid or effective and this Court doth further declare that the said balance of income is held by the trustees in so far as the said balance of income is derived from the estate of the testator upon a resulting trust to the estate of the testator and in so far as the said balance of income is derived from the estate of the testatrix upon a resulting trust to the estate of the testatrix" and by substituting therefor a declaration in the words following:—"And this Court doth further declare that the direction in the will of the testator ninthly as to the balance of the said income that until such time as the distribution of the final balance of income from the testator's said estate should come into force as in the testator's said will provided the trustees of the said will shall expend any part or the whole of such balance of income from year to year in improving and developing the Gordon estate referred to in the said will by erecting suitable tenantable buildings thereon or otherwise as they in their discretion may think fit or they may in their discretion invest for the general purposes of the said will such balance or income or any part thereof from year to year instead of expending the same is valid and effective but that the power conferred by the following words of the testator's will, namely "or they may in their discretion invest for the general purposes of this my will such balance of income or any part thereof from year to year instead of so expending the same" could not be exercised beyond the period of twenty-one years from the death of the said testator and that as to the accumulations of income for subsequent years in the hands of the trustees there is an intestacy".