Armenian General Benevolent Union v Union Trustee Co of Australia Ltd [1952] HCA 47

High Court of Australia Dixon C.J. McTiernan, Williams, Webb and Kitto JJ. Armenian General Benevolent Union v Union Trustee Co of Australia Ltd [1952] HCA 47

ORDER Appeal allowed. Answers to the questions asked in the originating summons and the direction for an inquiry as to the next-of-kin in the order of Sholl J. set aside and in lieu thereof order that the questions be answered as follows: 1. Yes; 2. The children in need of assistance of fathers of the Armenian race who died on active service with the Russian army in the recent world war against Germany or Japan and who were under twenty-one years of age at the date of the testator's death. Such persons will remain orphans so long as they continue in need of assistance whether they have attained the age of twenty-one or not; 3 and 4. Subject to payment of the annuities and to the performance of the trust in favour of orphans the Armenian General Benevolent Union is beneficially entitled to the whole of the residuary estate of the testator; 5. The plaintiff should, when requested, pay and transfer the whole residuary estate of the testator and the income thereof to the Union. The receipt of the secretary or treasurer of the Union shall be a sufficient discharge to the plaintiff for such assets and income. Costs of all parties of the appeal as between solicitor and client to be paid out of the residuary estate of the testator.

Cur. adv. vult.

The following written judgments were delivered.

Aug. 21 Dixon C.J. and McTiernan J.

This appeal concerns the interpretation of an ill-considered will by which an elderly Armenian attempted to dispose of his property. The will was made on 28th June 1946 and the testator died four months later. He was domiciled in Victoria and expressed a desire that his will should be construed according to the law of that State. One curious feature of the document is that, while he appointed the respondent trustee company the executor and trustee of his will, he gave directions for the payment to a body in New York, which he described as his permanent trustee, of the whole of the net income of his estate and the transfer to it of corpus, should the body so desire. This body is the Armenian General Benevolent Union, an association incorporated under the law of Switzerland but having its principal administrative seat in New York. The testator devised and bequeathed his property to the plaintiff trustee company. After providing for debts testamentary expenses and death duties he declared trusts for the payment out of the income of £7 a month to a sister, and after her death to a niece, and of £5 a month to a brother, who has since died. After a provision for a stone for his late wife's grave he directed that the whole of the net income be paid at least yearly to the Armenian General Benevolent Union (thereinafter called his permanent trustee) which permanent trustee, said the will, should make the monthly payment as provided in the will "and use the balance of any of the said income for the benefit of the orphans whose fathers fought with the Russian Army against Germany and Japan in the World War which ended last year" scil. 1945.