Lord Buckmaster:-
The difficulty in this case lies in determining the exact values to he given to a series of words which follow each other in the bequest of the testator's residuary estate.
The appellant contends that these words constitute a valid charitable gift and, as representing the public, the Attorney General for the Dominion of New Zealand has brought this appeal from the judgment of the Court of Appeal of New Zealand, where by a majority of four judges to one it was decided that the gift was void and that the residue passed to the next of kin, who are represented by the third and fourth respondents.
The will containing the bequest, dated 12th September 1914, is that of Edward William Knowles who died on 23rd April 1915, domiciled at Napier in the said Dominion; by its terms the first three respondents were appointed executors and trustees, and by them the will was duly proved on 13th May 1915. The material part of the clause in question is in these word :
" I direct and declare that the residue of the residuary trust funds (into which shall fall all bequests and legacies that may have lapsed) shall be held by my trastees in trust for such charitable benevolent religious and educational institutions, societies, associations and objects as they in their uncontrolled discretion shall select and I leave it entirely to the dscretion of my trustees to decide upon the amounts to be given and paid to any such institutions, societies, associations, and objects and also at their discretion to decide whether to make periodical payments or one single payment to any such institutions, societies, associations or objects."
It is obvious that the real obstacle that lies in the appellant's path is due to the word "benevolent". In accordance with a well-established series of authorities, beginning at least as early as James v. Allen [1817] 3 Mer. 17, a gift for benevolent purposes is bad, because such purposes go beyond the legal definition of charities a word which, in the construction of wills has always possessed a limited and technical meaning. It is far too late to question the soundness of these authorities at the present day. It may well be that in the minds of people unversed in the subtlety of legal phrases ''benevolent" "and charitable" are equivalent terms. But in the Courts the meaning of ''charitable" has been influenced by the preamble to the statute 43 Eliz. c-4 and charitable purposes have been regarded as those which that statute enumerates, or which by analogy are deemed within its spirit and intendment : see Morice v. Bishop of Durham 9 Ves. 399. From this it follows that a gift for charitable or benevolent purposes is void for uncertainty because it is impossible to divide the gift between the two objects or to determine to which it should be given and consequently the good cannot be separated from the bad and the gift fails : see In re Jarman's Estate 8 Ch. D. 584, and Ellis v. Selby [1836] 1 My. and Cr. 286. If, therefore, the words of the gift in the present case are to be read disjunctively and the word " benevolent" in New Zeland has, for legal purposes the same meaning as that which it possesses here, the gift in the present instance would be bad. But the appellant contends that neither of these conditions is involved in the true interpretation of the words. He says first, that the word "charitable" governs or at least explains all the words that follow, and that, as religious and educational purposes are proper subjects of charitable bequests the introduction of the words "religions and educational" shows that all the words following" charitable "are covered by its mantle, and that consequently, "benevolent" objects must be read as though it meant such benevolent objects as are in their nature the proper subject of a charitable gift. This argument derives some force from the fact that there is no need for defining two classes of charities, such as religious and educational, when they are all included in the first word of the bequest. But the terms of the investment clause in the will really destroy the effect of this contention, for there the testator directs his moneys to be invested by depositing them " with any firm, bank, company or corporation or public body or institution commercial, municipal, religious, charitable, educational or otherwise" and in their Lordships' opinion this shows that the meaning of the word ''charitable " in the testator's mind was something that did not embrace religious or educational purposes, and that it ought rather to be regarded as elemosynary, an interpretation which at once prevents tautology and gives a sensible meaning to each of the words.
So construed, however, the gift must fail, subject to the appellant's argument as to the meaning in New Zealand of the word "benevolent" for it is, in their Lordships' opinion, impossible to use the word "and" as a link intended to join all the words together and make the gift available only for such institutions or objects as satisfied each one of the conditions represented by each of the separate words. Apart from the fact that such a restriction would all but render the gift inoperative, it is plain from the use of the word ''and" in the phrase "institutions, Societies, associations and objects" which occurs twice in immediate succession to the words in question that "and" must be regarded as "or". In the case of Williams v. Kershaw 4, Cl. and F. 111, where a gift to " benevolent charitable and religious purposes " was held bad by Lord Cottenham the same principle of construction must have been applied, and it is, in their Lordships' opinion impossible to distinguish the principle upon which that case was decided from the principle that ought to govern the present dispute.
There remains the consideration of the true meaning to be attached in this will to the word "benevolent" owing to the fact that it is used in a New Zealand Will by a testator having a New Zealand domicil. It is of course, quite possible that an English word might be used in New Zealand with a meaning different from that which it possesses here and it may well be that ''benevolent institutions and organizations " are for the reasons pointed out by Stout, C.J. charitable institutions in New Zealand according to the strict meaning of the phrase. Indeed, if; seems so to have been regarded in the case of Clarke v. Attorney General 33. N. Z. L. R. 936, and also in the State of Victoria in Moule v. Attorney- General 20. Vict. L. R. 314. But, even upon this assumption the appellant's difficulties are not removed for this reasoning would not endow the word "benevolent" with the same signification when it is as it must be in the present will attached to the word objects and their Lordships cannot accept the appellant's argument that if benevolent institutions and benevolent associations in New Zealand are properly regarded as charitable this involves the conclusion that benevolent objects, where the adjective has no such local limitation of meaning are necessarily charitable also.
Their Lordships consequently are of opinion that the judgment of the Court of Appeal was correct, and that this appeal should be dismissed.
The trustees will have their costs as between solicitor and client out of the estate. As to the cost of the real litigant parties their Lordships think that in the circumstances of this case the Attorney-General ought not to pay the costs of this appeal but on the other hand they do not think that he ought to receive his costs out of the estate. As to the other respondents, it is possible that it will make no difference in the ultimate incidence of the expense whether their costs are included in the order or no ; but it may simplify matters of administration if a formal order be made that their costs as between solicitor and client should come out of the estate and their Lordships will humbly advise His Majesty accordingly.
Appeal dismissed.