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

PERPETUAL TRUSTEE COMPANY ae

HIGH COURT (1937.

(HIGH COURT OF AUSTRALIA.]

BARBY AND OTHERS . +" ' ¢ . APPELLANTS ;

Drrenpants,

AND

AND ANOTHER ESPONDENTS.

PLaintirFF AND DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Charities—Gift for returned soldiers, their widows and descendants—General charitable

intention—Scheme propounded by testatrix—Impracticability—Cy-prés.

'The testatrix bequeathed her residuary estate to her trustee with a direction to apply the whole of the capital and income thereof "for the relief of neces- sitous returned soldiers and their widows children or grandchildren who may be in necessitous circumstances (that is those only earning the basie wage for the time being or under and not possessed of more than £200) in the manner and in accordance with the scheme following that is to say": then followed a definition of persons eligible to receive benefits under the scheme, and a detailed scheme under which the trustee was to expend the money in the purchase in its name of virgin land, unfenced and unenclosed, in the State of New South Wales and not less than fifty miles from the General Post Office at Sydney, and to let such land at a peppercorn rent to persons within the scheme, who were to covenant to reside upon and work the land. 'There was a provision by which the trustee was empowered to let the premises even to the great-grandchildren of returned soldiers and others eligible under the scheme and even though they were not in necessitous circumstances. Finally, the testatrix directed " my trustee to complete the distribution of the whole of my residuary estate both capital and income " at a certain date " by trans- ferring in fee simple without consideration to each of the then occupant or occupants of the lands so to be purchased under the terms of this my will and