Attorney-General (NSW) v Donnelly [1958] HCA 1

Apel

a. (Beh 3 "QaR re ap

H.C. or A. 1957-1958. Ww Sypnry, 1957,

Nov. 21, 22,

Onl MeTlernan,

Webb ana Kitto JJ.

HIGH COURT (1957-1958.

[HIGH COURT OF AUSTRALIA.]

HER MAJESTY'S ATTORNEY-GENERAL

IN AND FOR THE STATE OF NEW APPELLANT ; SOUTH WALES . 5 i

AND

DONNELLY AND OTHERS . é . Respondents.

LEAHY AND OTHERS . s : 4 APPELLANTS ;

AND

DONNELLY AND OTHERS . . ' . RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Will—Constitution—Grazing property—Trust for orders of nuns—To be selected by

trustees—" Orders" —Term of canon law—Congregations of sisters—Whether included in objects of trust—Trust for provision of amenities in convents—To be selected by trustees—Active orders—Contemplative orders—Charitable and non- charitable purposes—Validity of trusts—Oonveyancing Act 1919-1954 (N.S.W.), fe BIR;

Section 37D of the Conveyancing Act 1919-1954 (N.S.W.) provides :— " (1) No trust shall be held to be invalid by reason that some non-charitable and invalid purpose as well as some charitable purpose is or could be deemed to be included in any of the purposes to or for which an application of the trust funds or any part thereof is by such trust directed or allowed. (2) Any such trust shall be construed and given effect to in the same manner in all respects as if no application of the trust funds or of any part thereof to or for any such non-charitable and invalid purpose had been or could be deemed to have been so directed or allowed."

'A testator devised a grazing property to trustees by cl. 3 of his will " upon trust for such Order of Nuns of the Catholic Church or the Christian Brothers as my said Executors and Trustees shall select and I again direct that the

98 C.L.R.] OF AUSTRALIA.

selection of the Order of Nuns or Brothers as the case may be to benefit under this clause . . . shall be in the sole and absolute discretion of my said Execu- tors and Trustees". By cl. 5 he disposed of his residuary estate to his trustees "upon trust to use the income as well as the capital to arise from any sale thereof in the provision of amenities in such Convents as my said Executors and Trus- tees shall select either by way of building a new Convent where they think necessary or the alteration of or addition to existing buildings occupied as a Convent or in the provision of furnishings in any such Convent or Conyents ". The clause went on to provide (inter alia) for a complete discretion in the trustees as to the order or orders of nuns who should benefit thereunder. 'The evidence established that the canon law of the Roman Catholic Church dis- tinguishes between order of nuns and congregations of sisters, reserving the first title for organisations which take solemn vows and the second for those which take simple vows, but this distinction is not generally known to the