Monds v Stackhouse [1948] HCA 47

High Court of Australia Latham C.J. Dixon and McTiernan JJ. Monds v Stackhouse [1948] HCA 47

ORDER Order of Supreme Court varied by omitting from the answer to the second question the words In doing so to the words similar character inclusive, by omitting the answer to the fifth question and answering the said question as follows:—No: the plaintiff should hold and retain the said property until further order of the Supreme Court, by omitting the answer to the sixth question and answering the said question as follows:—Not unless it is found impracticable to carry into execution the trust expressed in the gift mentioned in question 1, or unless it is found that a surplus of such proceeds remains in the hands of the said corporation after such trust has been fully executed, and by adding that all parties shall be at liberty to apply. Appeal otherwise dismissed. Costs of all parties of appeal to be paid out of residue, those of trustees as between solicitor and client.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 23 Latham C.J.

This is an appeal from a decision of the Supreme Court of Tasmania (Morris C.J.) in proceedings by originating summons in which it was held that the following disposition contained in the will of the late Albert William Monds was a good charitable gift:—"I give devise and bequeath all the residue of my real and personal estate whatsoever and wheresoever to my trustees upon trust to convert the same into money and to pay thereout my just debts funeral and testamentary expenses and the deceased persons estate duties both State and Federal on the whole of my estate to the exoneration of the gifts hereinbefore made by me and after payment thereof to pay the net residue of the proceeds of such conversion to the Corporation of the City of Launceston to be held by the said Corporation as a nucleus of a fund to provide a suitable hall or theatre for the holding of concerts to provide music for the citizens of the City and for the production of drama entertainments and the holdings of meetings of a cultural or educational value and I direct that the Corporation of the said City of Launceston in disposing of the said moneys shall be the sole judge as to whether the objects to which they are applying this bequest are within the terms of the gift I being confident that the Corporation will use this money to the best advantage and apply the same in accordance with my wishes so far as the circumstances at the time enable them and I further declare that in my opinion the best place for the erection of such a hall or theatre is the King's Park Paterson Street Launceston aforesaid and it is my desire without fettering the discretion of the Corporation that any such theatre or hall should be erected thereon."