Nicholls v Public Trustee (SA) [1945] HCA 32

POP FOwv I tas FoL./9s0 GSR /4F

86 HIGH COURT

(HIGH COURT OF AUSTRALIA.]

In rE CUMING.

NICHOLLS FE ° > é } d A APPELLANT ; APPLICANT, ;

AND

PUBLIC TRUSTEE (SOUTH a R AND ANOTHER . . sieiect RESPONDENTS,

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

H. ©. or A, Will—Conditional gift—Condition precedent—Renunciation of Roman Catholic fa

1945. —Uncertainty—Validity of condition—Public policy—Interference with parénta Ww duty—Infant legatee—Infant legatee married—Law of Property Act, 1936 (S. ADELAIDE, (No. 2328 of 1936), s. 23. Sept. 19, 20.

A testatrix, subject to a life interest, left half of her residuary estate u]

Sypyey, trust for her grand-daughter " provided she shall have renounced the Ron

Nov. 19. Catholic religion within three calendar months of my decease." 'The g Latham cz, @aughter, who had married during the life of the testatrix, professed and had

Starke and not renounced the Roman Catholic faith, She did not attain the age of twenty-

was capable of performance by an unequivocal and sincere declaration: (3) It was not void for impossibility, because the beneficiary, though under tw 'one years of age, was competent to renounce her religion ; dictum of J. in In re May ( (1932) 1 Ch, 99, at p. 106) applied: (4) As the benefic was a married woman, it was not void as contrary to public policy as an interference with the parental right to bring up a child in a particular fail

Decision of the Supreme Court of South Australia (Napier C.J.): InreCun (1943) S.A.S.R. 336, affirmed.

72 C.L.R.] OF AUSTRALIA.

Appeat from the Supreme Court of South Australia,

By her last will and testament, Phebe Smith Cuming appointed the Public Trustee of Adelaide sole executor and trustee of her will. She left the residue of her estate to her trustee upon trust for invest- ment and for payment of the income therefrom (so far as material) as to one-half share to her daughter Joyce Torrens Backshall for life. She then directed her trustee as follows : " Upon the decease of the said Joyce Torrens Backshall as to one half of the capital sum Tepresenting my residuary estate upon trust for my grandchild Bridget Irene Backshall provided she shall have renounced the Roman Catholie religion within three calendar months of my decease and failing such renunciation as aforesaid then as to such one half of the capital sum as aforesaid upon trust for the Protestant Children's Home at Magill in the said State for the general funds of such Home." The testatrix died on 27th December 1941 and was survived by the daughter and the grand-daughter named in the will. The Public Trustee duly proved the will. At the date of the death of the testatrix, the grand-daughter Bridget Irene Backshall had married one Nicholls. She did not attain her majority until 28th March 1942, one day after the lapse of three calendar months from the death of the testatrix. It was common ground that she professed the Roman Catholic faith, and she had not renounced that religion.