Kempthorne v Kempthorne [1957] FJLawRp 6; [1956-1957] 5 FLR 39 (29 March 1957)

[1956-1957] 5 FLR 39

IN THE SUPREME COURT OF FIJI

Civil Jurisdiction

Action No. 192 of 1956

Between:

LEONARD STANLEY KEMPTHORNE,
WILLIAM EDMUND WILLOUGHBY-TOTTENHAM,
GEORGE KINGSLEY ROTH,
HAROLD CRANE,
CHARLES LEONARD NORMAN BENTLEY
Plaintiffs

All of Suva in Fiji the Trustees for the Colony of Fiji of the Church of England as Trustees of the Will of John Campbell deceased in respect of the deceased's Estate in Fiji.

AND

LEONARD STANLEY KEMPTHORNE,
WILLIAM EDMUND WILLOUGHBY-TOTTENHAM,
GEORGE KINGSLEY ROTH,
HAROLD CRANE,
CHARLES LEONARD NORMAN BENTLEY
Defendants

All of Suva in Fiji the Trustees for the Colony of Fiji of the Church of England and LEONARD STANLEY KEMPTHORNE of Suva aforesaid Bishop in Polynesia.

THE ATTORNEY-GENERAL

Mortmain Acts-whether operative in Fiji.

This case is reported solely for the point which arose as to whether the Charitable Uses Act 1735 9 Geo. 2 Chap. 36, (and what are known as the Mortmain Acts), applied in Fiji.

Held.-The Mortmain Acts do not apply in Fiji (obiter of Major C.J. in Twitchell v. Floyd & Ors. 3 FLR 78 not followed).

Cases referred to:-

Jex v. McKinney & Ors. [1889] UKLawRpAC 1; [1889] 14 AC 77

Twitchell v. Floyd & Ors 3 FLR 78.

A . D. Leys for the plaintiffs.

D. M. N. McFarlane for defendants 1-5.

J. N. Falvey for defendant 6.

Attorney-General in person.

HAMMETT, J. [29th March, 1957]-

This is an Originating Summons seeking approval for a scheme for the future management and administration of the Fiji Estates of the late John Campbell deceased.

The deceased died on 22nd January, 1886 and his Estate has been the subject of previous applications to the Court.

By his Will, dated 8th January, 1886, the deceased left his Fiji Estates to trustees upon trust to use £10,000 out of the proceeds of sale thereof which for convenience I will call "The Bishopric Endowment Fund", for the purpose of founding, establishing and endowing a Church of England Bishopric of Fiji. In the event of the proceeds of sale of the Fiji Estates being less than £10,000 then the whole of the proceeds were to be devoted to this purpose.

Probate of this Will was granted in New South Wales on 11th March, 1886, and it was resealed by this Court on 24th April, 1888.

The Fiji Estates of the deceased at the date of his death were worth less than £10,000 and have never been sold.

In 1904 the Supreme Court of New South Wales declared that this gift was a valid charitable bequest.

In 1908 there was established a Church of England Bishopric of Polynesia.

In 1909, the matter came before the Supreme Court of Fiji sub nomine "Twitchell v. Floyd & Ors." 3 Fiji Law Reports page 78. Applying the cy-pres doctrine it was held that to supply the needs of the Bishop in Polynesia in so far as those needs arise in Fiji in connection with the administration of his Bishopric was a suitable and proper object in accordance with the testator's clear intention to which the gift of £10,000 could properly be devoted.

In 1913 this Court approved a scheme for the regulation and management of the Bishopric Endowment Fund, which provided, inter alia, that the income should be paid to the Bishop in Polynesia, to be used in the manner approved by the Court subject to further application to the Court in the event of the Diocese being sub-divided or the income exceeding £500 per annum.

The income now exceeds the sum of £500 per annum and application is therefore made for the approval by the Court of a further scheme for the future administration of this Charitable Trust.

In the meantime the value of the whole Estate has increased to a sum exceeding £10,000. The capital in excess of £10,000 did not belong to the Bishopric Endowment Fund but to the residuary legatees under the Will. The beneficial interests of these residuary legatees have now however been acquired by gift and purchase by the Trustees of the Church of England in Fiji as follows:-

(i) By Gift:

7/27ths of the excess over £10,000 for the same purposes as the Bishopric Endowment Fund.

(ii) By Purchase:

20/27ths of the excess over £10,000 for the general purposes of the Church of England in Fiji.

The need for these applications would not have arisen had the Executors of the Estate some years ago wound up the Estate and transferred the deceased's entire estate in Fiji in specie to the Trustees of the Bishopric Endowment Fund since it is clear that in those days it was worth considerably less than £10,000 in value. The reason why that was not done would appear to be the belief that the Charitable Uses Act 1735, 9 Geo. 2 Cap. 36 and what are known as the Mortmain Acts applied in Fiji and that such a devise or conveyance would be contrary thereto. This matter was referred to by Major C.J., by way of obiter, in his Judgment in Twitchell v. Floyd & Ors. 3 Fiji Law Reports 78 where he expressed the view that the Charitable Uses Act 1735 applied to Fiji.

The applicability to Fiji of Imperial Laws is contained in the Supreme Court Ordinance (Cap. 2) sections 35 and 37 the material parts of which read:-

Section 35:

"The Common Law, the Rules of Equity and the Statutes of general application which were in force in England at the date when the Colony obtained a local Legislature, that is to say, on the second day of January, 1875, shall be in force within the Colony subject to the provisions of section 37 of this Ordinance."

Section 37:

"All Imperial Laws extended to the Colony by this or any future Ordinance shall be in force therein so far only as the circumstances of the Colony and its inhabitants and the limits of the Colonial jurisdiction permit and subject to any existing or future Ordinances of the Colonial Legislature, etc."

Section 37 is substantially the same as section 29 of Ordinance No. XIV of British Honduras the material part of which reads as follows:-

"Wherever by this Ordinance, or any other Act or Ordinance, it is declared that any Imperial laws shall extend to the Colony, such laws shall be deemed to extend thereto so far only as the jurisdiction of the Court and local circumstances permit, and subject to any existing or future Acts or Ordinances of the Colonial Legislature, etc."

The construction of this section was considered by the Judicial Committee of the Privy Council in the case of Jex v. McKinney & Ors. [1889] 14 Appeal Cases 77 in which the applicability to British Honduras of the Charitable Uses Act 1735 was in issue.

It was then held that although that Act was included in the description of laws introduced by local Ordinances its provisions did not satisfy the prescribed condition of applicability to the Colony and it was not therefore in force in British Honduras. In my opinion similar considerations apply in the case of Fiji.

The learned Acting Attorney-General and the several learned counsel appearing for the parties to this Originating Summons have all expressed the view that what are commonly known as the Mortmain Acts do not apply in Fiji. That also is my opinion. The contrary view of Major C.J., in Twitchell v. Floyd was only expressed by way of obiter and the Privy Council decision in Jex v. McKinney & Ors. [1889] 14 Appeal Cases 77 was not considered during the course of that case.

There appears to me to be no reason therefore why the whole of the deceased's Fiji Estates should not have been conveyed to the Trustees of the Bishopric Endowment Fund in specie at a time when they were worth less than £10,000 in value, instead of the estates continuing to be held on trust for sale.

This would of course have been the simplest way of dealing with the matter now, but for the fact that the Fiji Estates of the deceased are now worth more than £10,000.

As stated above, 20/27ths of the interests of the Residuary legatees in that part of the Fiji Estates which exceeds £10,000 in value have been acquired by purchase by the Trustees of the Church of England in Fiji for their general purposes. They are however willing to co-operate in a new scheme whereby the interests they have thus acquired by purchase shall be held on the same trusts as the Bishopric Endowment Fund provided their general purposes fund is reimbursed its outlay of capital.

All interested parties are agreed that a conveyance in specie would be the most convenient basis of a new scheme for the future administration of the Trust and consent to such a scheme.

I therefore direct that the whole of the Fiji Estates of the late John Campbell deceased be conveyed in specie to the Trustees of the Church of England in Fiji to hold the same or the proceeds of sale thereof on the same Trusts as the Bishopric Endowment Fund. The corpus of the fund must of course be retained intact but I direct that the whole of the income which has been accumulated and the future income by used for the following purposes:-

(a) To reimburse to the general purposes fund of the Trustees of the Church of England in Fiji the capital outlay made in acquiring by gift and purchase the interests of the residuary legatees and the taxed costs of tracing them and all other incidental expenses connected therewith.

(b) To pay the taxed costs of all parties to these proceedings.

(c) To use the balance of the accumulated income and all future income for supplying the needs of the Bishop in Polynesia so far as these needs arise in Fiji and other wise for the support and advancement of the Bishopric of Polynesia so far as the same extends to and includes Fiji in such manner and form as the trustees may from time to time think fit.

The Estate of the late John Campbell deceased should then be wound up.

I direct that a new scheme be prepared on these lines, subject to further application to the Court in the event of the Diocese of Polynesia being subdivided at some later date.