III—Judgment.

In the Supreme Court of New Zealand, Wellington District.

The Bishop of Wellington v. The Solicitor-General.

This is an action brought by the Plaintiffs alleging themselves to be the present Trustees of 500 acres of land at Porirua, granted by the Crown in 1850 to the Bishop of New Zealand and his page 10 successors in trust for the use and maintenance of a School mentioned in the recital to the Grant so long as religious education, industrial training and instruction in the English language shall be given to the youth "educated therein or maintained thereat." The Grant recites that a school is about to be established at Porirua under the superintendence of the Right Reverend George Augustus, Lord Bishop of New Zealand, for the education of children of subjects of the Queen of all races and of children of other poor and destitute persons inhabitants of Islands in the Pacific Ocean. It also recites that it would promote the objects of the said institution to set apart a certain piece of land in the neighbourhood thereof (that is of the intended school) for the use and towards the maintenance and support of the same and that the land had by deed from the Natives been coded for the support of the said school.

It appears doubtful whether a school answering at all to the proposed school as described in the recital to the Grant was ever established. It would appear that many years ago a schoolmaster was placed at Porirua for the Natives by the Bishop but was not long maintained there, the reason being that the attendance of Maori children was irregular and the number small. Whether this was before the grant or after does not appear. At any rate for very many years the land has been let at a rent—the accumulation of rents received and invested amounts to £6,480. The Plaintiffs allege that the accumulated fund and the 500 acres of land let at £200 a year are insufficient to establish and carry on such a school as is contemplated by the trusts in the Grant: but that the principal obstacle to the proper maintenance of such a school is the small number of Maori children residing in the neighbourhood.

The Trustees therefore desire to obtain from this Court its sanction to a modification of the trusts and to that end ask that a scheme they propose be adopted; the principal feature of that scheme is that instead of a school being established and maintained either at Porirua or elsewhere the accumulated funds and the rents in the future be applied in granting Exhibitions to Maoris and others to be held at one or other of several existing schools connected with the Church of England and in which there is, as alleged, some technical instruction and instruction in English.

The Solicitor-General is made defendant to this action.

In the defence filed in his name he contends that the endowment reverts to the Crown.

page 11

At the argument Counsel for the Solicitor-General applied to amend the defence by raising the question as to the validity of the Grant. I refused the application; it was contended, however, that without the amendment the question was raised in the case. I thought It was not and so decided. It is true that no Statute or Ordinance or provision in any Governor's instructions could be mentioned authorising the Grant, but it seemed to me that such a question could not be raised in a defence to a suit notwithstanding that the Solicitor-General was the Defendant.

As to the question of reverter to the Crown the terms of the grant do certainly raise a considerable doubt whether a general intention of charity is shown so as that the doctrine of my Pres could be applied if there was a failure of the particular object. It is to be observed that the terms of the grant are that the gift is for the use &c. of the school "so long as "religious education etc. shall be given to the youth educated and maintained thereat. The Grant is not in terms for the use etc. of a school or the specified school at which religious education shall be given: and the question is whether either because the specified school never did comply with the requirements of the gift or if it ever did that it has long ceased to exist at all, and therefore the gift has reverted to the Crown, the real donor. In Attorney-General v. Pyle 1 Atk 435 the case was that A devized a freehold messuage at a place to the Charity School there and directed the rents and profits to be applied for the benefit of the said school "so long as it shall continue to be endowed with charity" and the Lord Chancellor Hardwicke observed that "where a sum of money is given to a charity so long as it shall continue to be endowed with charity, it is only given quousque and when it ceases, if it is a gift of real estate it shall fall into the inheritance for the benefit of the heir, if personal into the residuum," 1 do not think however that the true construction of the Grant is that if the particular charity—a school at Porirua was not established, but a school was established somewhere else in the same District, and in all other respects carrying out the objects of the charity that the gift would fail and the land revert. I think that it may be inferred that the general object was charitable—a school for the religious education and industrial training of children of youth especially of youth of the Maorirrce If therefore it hud been made to appear that a school of the description found in the Grant could not reasonably in the altered circumstances of the Colony and the Maori people be established I should have concluded that a case had been made out for the application of the doctrine of Cy-Pres and that a scheme should be adopted for the future. Upon the evidence at present adduced I am not satisfied that a school corresponding with the description found in the page 12 Grant cannot now be established and carried on with advantage to the community. It seems to me clear that the Trustees are right in their objection to the scheme proposed by the Solicitor-General. An object (I am inclined to think the principal object) undoubtedly was that there should be" religious "education, and that as the Bishop of the Church of England was the Trustee, the intention was that the religious education should at any rate be of such a character as he could approve of. I do not at all infer that the School was intended to be confined to persons professing to be members of the Church of England. If in the end it should appear that there has been such a change in circumstances that the Court finds it permissible to adopt a scheme authorising some change in the mode of carrying out the intention such scheme might provide with regard to the religious instruction to he given. I cannot however doubt that the intention was to endow a Church of England School; but nevertheless a school open to others: this was effected in the scheme approved of in A.G. v. Clifton 32 Beavan 596 a case cited by Sir R. Stout, and in many other cases. I understand but do not approve of the leading idea of the scheme produced by the plaintiffs—the Trustees, The notion is that primary education is sufficiently provided for by the State and that it would not be a wise application of the funds of the charity to apply them in providing for teaching what is as efficiently taught at the common schools; but I do not think that it would be a proper appiication of the funds of the charity to expend them in the maintenance of youths at a Church of England Grammar School though there might be some slight instruction in some mechanical art there obtainable. I think that what is necessary is a training school for children of both sexes of the poorer class—of such children who have progressed to some substantial extent at the common schools or their equivalent, and are then prepared to take full advantage of some industrial training either, for instance, in farming operations or farming and some other art or arts. To carry out this idea the charity would have to be to some extent modified, for it would not be necessary to make instruction in English a principal feature.

At any rate I am not satisfied that with an endowment equal to ten thousand pounds a very useful school cannot be established and maintained in this District capable of training a sufficient number of young people in some industrial art, sufficient in number to make the school economically a wise application of the funds.

I therefore decline to adopt either of the schemes proposed and reserve the matter for further consideration if then it is made page 13 manifest more certainly than I think it has at present that the idea of a school at Porirua should be abandoned and that some modification of the charity is necessary then a new scheme can be proposed and dealt with.

The next step taken by the Trustee was to file a fresh scheme.

There are two Reserves held by Trustees on the same Trusts as the Porirua Reserve, excepting that they are for the benefit of a College to be erected in the Wairarapa Valley. The law points decided by Sir James Prendergast, C.J., equally apply to the Crown Grants of these two Reserves. Moneys had also been accumulated from rents and investments appertaining to them, but (as in the Porirua case) not sufficient to permit of the Trustees erecting a College and maintaining students, They have however purchased a farm of 120 acres with buildings suitable for such a College or school as is contemplated by the above judgment.

The Plaintiffs (some of whom are Trustees common to both sets of Trusts) considered that if they could strengthen their evidence and convince the Court of the impossibility of carrying out their Trusts at Porirua a scheme which provided for the appropriation of the revenues to maintaining scholars at the Wairarapa institution would be as nearly as possible in accord with the Trusts of the different Grants.

The Trustees of the Wairarapa Reserves gave their consent and the Plaintiffs filed the following amended scheme.