Schellenberger v Trustees Executors & Agency Co Ltd [1952] HCA 69

High Court of Australia Dixon C.J. McTiernan and Fullagar JJ. Schellenberger v Trustees Executors & Agency Co Ltd [1952] HCA 69

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 12 Dixon C.J., McTiernan and Fullagar JJ.

This is an appeal from a decision of Coppel A.J. in chambers on an originating summons relating to the will of Emile Henry Shelley deceased.

The testator, who was a resident of Bunyip, a small country town in Victoria, made his will on 15th November 1941, and died on 8th January 1944. By his will he appointed the respondent company to be the executor and trustee thereof, and he devised and bequeathed the whole of his estate both real and personal to the company upon trust for his wife for her life. After her death he gave a sum of £1,000 to the trustees of the Bunyip Mechanics' Institute for the purposes of the Institute, and a sum of £1,000 to the trustees of the Bunyip Agricultural Society for the purposes of the Society. The will proceeded:—"And as to all other my estate to be known as the Emile Henry Shelley Trust in trust as to capital and income to be administered by my trustee as it in its absolute discretion shall decide for the beautification and advancement of the township of Bunyip aforesaid And my trustee may seek the advice of Frank Shelford Hodge, John Alfred Cock and George Brown Calderwood all of Bunyip aforesaid or the survivor or survivors of them.". The will concluded with a discretionary power of sale expressed to be given for the purpose of enabling the trustee to carry out the provisions of the will.

The testator's widow died on 3rd June 1950. All debts, and the two legacies of £1,000, have been paid, and the respondent company has in its hands property of the value of about £9,600. The main question raised by the originating summons was as to the validity of the trust for the "beautification and advancement" of the township of Bunyip. It was argued for the next of kin of the testator that the trust was void for uncertainty. It was argued for the Attorney-General of Victoria that it was a charitable trust and valid. Coppel A.J. held that the trust was a good charitable trust, and against that decision the next of kin appeal.