The University ofQueensland Law Journal Vol. 14, No.2

Trusts for the Maintenance ofParticular Animals

Philip Jamieson*

175

I bequeath to my trustees the sum of $.... upon trust to invest thesame and to apply the income therefrom for the upkeep andmaintenance ofmy [dog or other animal, describing it] for the periodof twenty years from the date of my death if my said [dog] shall solong live and after the death ofmy said [dog] or after the expirationof the said period of twenty years whichever shall first happen thesaid sum shallfall into andformpart ofmy residuary estate. l

How valid is a trust for the maintenance of particular, designatedanimals?

The orthodox view is that a valid trust requires a beneficiary ­"somebody, in whose favour the Court can decree performance".2Where no person, capable of enforcing the obligations of the trust,is pointed out as its object, there must be someone, though not theobject of the trust, to whom the law gives the same right of suit as ifhe were its object. Only the Crown, as parens patriae, enjoys such aright and only in respect of such trusts as are, in a legal sense,charitable. Inherent in their charitable status is the notion that it isin the public interest that they should be enforced.

A trust which lacks this element of public benefit cannot merelybenefit some purpose, but must specify someone as the object ofthe trust for whose benefit it is to be executed. If there is no publicbenefit to be derived from its execution, there is no reason why theState should lend its aid to seeing that the purpose is carried out. 3

Equally, being merely a trust for the benefit of purposes, and notof persons, there is nobody in whose favour the court can decreeperformance.

As such, the general principle is that such non-charitable purposetrusts are void. They are trusts of imperfect obligation, imperfect inthat they lack a beneficiary capable of enforcing the obligations

*B.A., LL.B. (Hons.) (U. of Q.), Specialist Tutor in Law, University ofQueensland.

1. The Australian Encyclopaedia of Forms and Precedents (2nd ed. 1978) Vol. 16at 466.

2. Morice v. Bishop ofDurham (1804) 9 Yes. 399 at 404-405, affirmed on appeal(1805) 10 Yes. 522. See also Bowman v Secular Society, Limited (1917] A.C.406 at 441; Re Chardon (1928] Ch. 464; Re Wood [1949] Ch. 498 at 501; ReAstor's Settlement Trusts [1952] 1 All E.R. 1067; Re Denley's Trust Deed [1968]3 All E.R. 65. In Australia, the "beneficiary principle" has been applied inN.S.W. in Public Trustee v. Nolan (1943) 43 S.R. (N.S.W.) 169 at 172. See alsoRoman Catholic Archbishop ofMelbourne v. Lawlor (1934) 51 C.L.R. 1 at 30,per Dixon J.; Re Hamilton-Grey (1938) 38 S.R. (N.S.W.) 262; A-G (N.S. W.) v.Perpetual Trustee Co. Ltd. (1940) 63 C.L.R. 209 at 223, per Dixon and EvattJJ.; Re Cain (1950] V.L.R. 382 at 389-390; Re Spehr [1965] V.R. 770; ReElmore [1968] V.R. 390; A-G (N.S. W.) v. Donnelly (1957-1958) 98 C.L.R. 538at 579, per Kitto J. and on appeal to the Privy Council as Leahy v. A-G(N.S. W.) [1959] A.C. 457 at 478-479.

3. E.g., training poodles to dance: Re Hummeltenberg [1923] 1 Ch. 237 at 242, perRussell J.

176 P. Jamieson

and, being non-charitable in nature, no right rests in the Attorney­General to enforce those obligations. The disposition is ineffective:the property remains undisposed of and passes to the residuaryestate or, if there is none, to those entitled under an intestacy.

However, in a limited, though well-recognized, number of in­stances, the courts have recognized such trusts as valid. Thisrecognition was first given in connection with trusts for the creationof tombs or monuments. 4 In two early decisions, Mellick v. Presi­dent and Guardians of the AsylumS and Adnam v. Cole, 6 trusts forsuch purposes were assumed without argument to be valid if notcharitable. These cases were subsequently cited in argument inTrimmer v. DanbY,7 where Kindersley V.C. held a bequest of £1000by a noted artist for the erection of a monument to himself in St.Paul's Cathedral to be valid. Although his Honour acknowledgedthat he did not "suppose that there would be anyone who couldcompel the executors to carry out this bequest and raise the monu­ment", 8 he considered that, if the residuary legatees or the trusteesinsisted upon the trust being executed, the Court could be bound tosee it carried out.

Basing his decision on the analogy of these "tomb" cases and onan earlier decision in Mitford v. Reynolds,9 North J. in Re Dean10

extended this recognition to trusts for the benefit of specifiedanimals, upholding as valid a trust for the maintenance of thetestator's horses and hounds for a period of 50 years, if any of theanimals should so long live. Notwithstanding that the trust, beingmerely "for the benefit of the particular animals and not for thebenefit of animals' generally", was not charitable, 11 his Honourheld that the trustees were at liberty to carry out its terms.Although, there was no cestui que trust who could enforce thetrust, he did not assent to the view that "the Court will notrecognize a trust unless it is capable of being enforced bysomeone."12

In an earlier decision in Pettingall v. Pettingall, 13 a bequest of£50 a year to an executor for the maintenance of the testator'sfavourite black mare had been admitted by counsel to be valid, anddirections had been sought as to the disposition of the surplus in-

4. See, e.g., trusts for the erection and/or maintenance of tombs: Re Hooper[1932] 1 Ch. 38; Re Vaughan (1886) 33 Ch.D. 187; or monuments: Mussett v.Bingle [1876] W.N. 170. See also Re Rickard, Rickard v. Robson (1862) 31Beav. 244, 31 L.J. Ch. 897; Hoare v. Osborne (1866) L.R. 1 Eq. 585.

5. (1821) Jac. 180.6. (1843) 6 Beav. 353.7. (1856) 25 L.J. (N.S.) Ch. 424.8. Id.427,9. (1848) 16 Sim. 105; 60 E.R. 182; where a gift of residue to charity "after deduc­

ting the annual amount that will be necessary to defray the keep of my horses"was held valid. Although the validity of the trust for animals does not appear tohave been argued, the final order made provision for it.

10. (1889) 41 Ch.D. 552.11. See also Re Howard, Oakley v. Alridge (1908) Times, 30th October (suggests

that such trusts are not charitable because no public benefit is discernible from atrust to care for particular, designated animals).

12. Supra n. 10 at 556.13. (1842) 11 L.J. Ch. 176.

Trustsfor the Maintenance ofParticular Animals 177

come. Knight Bruce V.C. held that the sum should be paid annuallyto the executor during the life of the mare, although subject to hisgiving an undertaking that he would maintain the mare properlyand the indication that, if he failed to do so, the beneficiaries couldapply to the Court to reconsider the arrangement.

Another case which concerned animals, but from a somewhatdifferent standpoint, was Re Thompson. 14 A legacy was bequeathedto be applied by the legatee in such manner as he in his absolutediscretion should think fit towards the promotion and furtheranceof fox-hunting. The residue of the testator's estate was bequeathedto Trinity Hall in the University of Cambridge. The College arguedthat the bequest was invalid and, citing Morice v. Bishop ofDurham,15 for the first time, so far as appears from the reports ofany of the cases so far discussed, took the point that such a trustwas invalid on the ground that there was no one in whose favourthe court could decree performance. Clauson J. concluded that,although the gift was not charitable, its object had been definedsufficiently clearly and was of a nature that effect could be given it.His Honour ordered that the legacy be paid to the legatee, but(following Pellingall v. Pellingall) required he give an undertakingto apply it towards the object expressed in the testator's will, withliberty to the residuary legatees to apply to the Court if the legacywere not so applied.

It has been commented that this decision is probably an "un­justified extension"16 of the solution reached in Pellingall v. Pel­lingall, the judge "perhaps being over-influenced by the fact thatthe executors and trustees could hold the property subject to anundertaking to apply it to the named object, with the residuary bene­ficiary being given leave to apply to the court upon the trustees fail­ing in their duty."1 7 It has been suggested that it is doubtfulwhether it can be safely followed today in view of the recent caselaw. 1s

However, the decisions so far discussed are all remarkable forthe fact that in none did the judge deciding it treat it as an exceptionto the general principle that there must be someone in whose favourthe court can decree performance, but decided it in spite of thatprinciple. It has been noted "that (these cases) deal with subjectsnear to the hearts of Englishmen - their graves, horses and dogs,and fox-hunting - and therefore would presumably, in an Englishcourt, be regarded as deserving of exceptional treatment."19

Because of a paucity of Australian authority on this question,English decisions continue to have strong persuasive authority.However, the existence of such exceptions to the general"beneficiary principle" has been adverted to in Australian courts on

14. [1934] Ch. 342.15. (1804) 9 Yes. 399; (1805) 10 Yes. 522.16. D.B. Parker and A.R. Mellows, The Modern Law of Trusts (5th ed. 1983) at

177.17. Underhill's Law relating to Trusts and Trustees (J 3th ed. 1979 by D. J. Hayton)

at 67.18. Ope cit. supra n. 16 at 177.19. R.M. Eggleston, "Purpose Trusts", (1939-1941) II Res Judicatae 118 at 120.

178 P. Jamieson

several occasions. As early as 1880, in Wiseman v. Kildah,20 a trustfor the erection of a monument was upheld as valid, and in both ReTurner, Queensland Trustees Ltd. v. Turner21 and Re Pearce,22it was held that a valid trust was created by the direction to thetrustees under the will to devote a specified sum of money towardsthe erection of a tombstone and the provision of a suitable railingaround the grave. However, though the direction was valid, theduty being of imperfect obligation, was unenforceable: the executrixwas at liberty to spend either the specified sum or any smaller sumas she should think proper, for the obligation to spend the wholesum was one incapable of enforcement.23

It is suggested, though, that these decisions are "hardly an appli­cation of the exception since even in the absence of the direction theexecutrix would have had power to do what the testatrixdirected."24 Even where there is no express provision in a will forthe erection of a tombstone over the testator's grave, his executorsmay spend a reasonable sum of money, having regard to his estateand circumstances in life, in erecting such.25

In Re Carson, Carson v. The Presbyterian Church of Queens­land,26 Townley J. stated that he took "the relevant principle of lawto be that a gift for maintaining or repairing a monument or tomb­stone as a memorial ... of the donor cannot be supported as acharitable gift,27 but it may be valid as a private trust if it does notinfringe the rule against perpetuities."28 His Honour, however,held that the gift in question, being for the maintenance of a grave,tended to a perpetuity and, as such, did not constitute a valid trust.Similarly, in Pooley v. The Royal Alexandra Hospital forChildren,29 Long Innes J., while recognizing that a "gift forbuilding a monument or tomb, not forming part of the fabric orornament of a church may be valid as a private trust, if not involv­ing a perpetuity", 30 held that a trust for the erection of a monumentto the memory of the testatrix's dead son failed since the intentionwas that it should be a perpetual monument.

Reference to the existence of such "'anomalous exceptions to thegeneral principle"31 in Australian courts has not been confined tothe "tomb" cases alone. In Public Trustee v. Nolan,32 Roger J. held

20. (1880) 6 V.L.R. (E) 78 at 80, per Molesworth J.21. [1942] St.R.Qd. 223 (F.C.).22. [1946] S.A.S.R. 118.23. [d. 123, per Abbott J.24. H.A.J. Ford and W.A. Lee, Principles of the Law of Trusts (1st ed. 1983) at

175 fn.25. See e.g., Chesterman v. Mitchell (1924) 24 S.R. (N.S.W.) 108 at 111-112, per

Harvey J. (applying Grunden v. Nissen [1911] V.L.R. 97 at 105, per A'BeckettJ.; confirmed by the Victorian Full Court on appeal [1911] V.L.R. 267).

26. [1956] St.R.Qd. 466.27. See, e.g. Re Spehr, supra n. 2, where Gowans J. held that the erection and

upkeep of monuments over the graves of the testator's ancestors and the erec­tion of a cairn to commemorate their deeds was not charitable.

28. Supra n. 26 at 474.29. (1932) 32 S.R. (N.S.W.) 459.30. [d. 463.31. Public Trustee v. Nolan, supra n. 2, per Roper J.32. (1943) 43 S.R. (N.S.W.) 169.

Trusts for the Maintenance ofParticular Animals 179

that a trust for the erection of a carillon on Sydney Harbour wasneither charitable nor within the class of "anomalous exceptions tothe general principle", which he concluded were "to be restricted totrusts for the erection of monuments and (subject to there being noperpetuity involved) for the maintenance of animals or of monu­ments or graves."33 Similar dicta are to be found in the judgmentsof Kitto J. in A-G (NSW) v. Donnelly,34 Smith J. in Re Producers'Defence Fund,35 and Else-Mitchell J. in Perpetual Trustee Co. Ltd.v. John Fairfax & Sons Pty. Ltd.,36 in each of which their Honoursrefer to "the line of cases relating to trusts created by will for theerection or maintenance of tombs or memorials or for the mainte­nance of particular animals."37

In view of these occasional judicial references to the existence ofsuch non-charitable purpose trusts for the benefit of particular,designated animals, it is necessary to consider upon what basis suchtrusts have been held to constitute an exception to the general prin­ciple that there nlust be someone in whose favour the court maydecree performance.

In Re Thompson, 38 Clauson J. suggested that, in these cases,"the object of the gift has been defined with sufficient clearness andis of a nature to which effect can be given." However, this may mis­apprehend the "beneficiary principle". Though the object has beendefined with sufficient certainty that the court can see expost factowhether or not the trust has been performed, the trust "must be ofsuch a nature that the Court itself can direct the execution in caseswhere the trustee refuses to act, or in cases where there is no trusteefor the time being."39 In dealing with non-charitable "animal"trusts, the court has been unable to do more than merely direct thepayment of the fund to the trustees with liberty to apply should itbe misapplied.

Alternatively, various academic writers40 have suggested, and in

33. Id. 172.34. Supra n. 2.35. [1954] V.L.R. 246 at 255.36. (1959) 76 W.N. (N.S.W.) 226 at 228.37. Supra n. 35.38. Supra, n. 14 at 344.39. Supra n. 19 at 121. Note that trusts for charitable purposes overcome this dif­

ficulty through the power of the court to direct a scheme, where the terms of thetrust are indefinite, in proceedings to which the Attorney-General is a party andin whose favour, therefore, the court can decree performance.

40. See Ames, "The Failure of the 'Tilden Trust' ", (1892) 5 Harv.L.Rev. 389; Scott,"Control of Property by the Dead", (1917) 65 U. of Pa. L. Rev. 527 at 537;Hart, "Some Reflections on Re Chardon", (1937) 53 L.Q.R. 24 at 33-35; G.L.Williams, "The Three Certainties", (1940) 4 Mod.L.R. 20; Scott, "Trusts forCharitable and Benevolent Purposes", (1945) 58 Harv.L.Rev. 548; Note (1949)65 L.Q.R. 304; Note (1952) 68 L.Q.R. 449; Marshall, "The Failure of the AstorTrust", [1953] Current Legal Problems 151; Sheridan, "Trusts for Non-Chari­table Purposes", (1953) 17 Convey (N. S.) 46 and "Purpose Trusts and Powers",(1958) 4 Univ. W.A. Ann. L. Rev. 235; Leigh, "Trusts of ImperfectObligation", (1955) 18 Mod.L.R. 120; Marshall, "Trusts and Powers", (1957) 35Can. B. Rev. 1060; J.H.C. Morris and W.B. Leach, The Rule Against Perpe­tuities (2nd ed. 1962) at 319-321; H.A.J. Ford, "Dispositions for Purposes", inP.D. Finn (ed.), Essays in Equity (lst. ed., 1985) at 159 (especially at 178, sug­gesting that legislation to this effect would be beneficial). For a contrary view,see Eggleston, supra n. 19 at 123.

180 P. Jamieson

at least one Victorian decision41 it has even been held, thatalthough "a disposition of property upon trust for a non-charitablepurpose is invalid in so far as it seeks to create a trust, it is never­theless effective to create, and to confer upon the persons nomi­nated as trustees, a power to apply the property for the purposesspecified, provided that the power does not infringe the rule againstperpetuities".42

However, foremost amongst the objections to this theory is thata valid power cannot be deduced from what is intended to be atrust. 43 In A-G (N.S. W.) v. Donnelly,44 Kitto J. suggested that "theanomalous line of cases relating to the mainte~ance of animals andtombs ... may need to be reconsidered in the light of the clearstatement (to this effect) of the (English) Court of Appeal" inI.R.C. v. Broadway Cottages Trust. 45 The theory that such trustsmight survive as powers was specifically rejected by the EnglishCourt of Appeal in Re Endacott.46

In Perpetual Trustee Co. Ltd. v. John Fairfax & Sons Pty.Ltd. ,47 Else-Mitchell J. concluded in obiter that such "trusts of im­perfect obligation" were "merely (unenforceable) testamentarydirections which a trustee may follow within the limits set by therule against perpetuities without being liable for breach of trust atthe suit of a beneficiary such as a residuary legatee or a remainder­man".

They are at base merely "concessions to human weakness or sen­timent"48 and as such must be regarded as an "anomalous and ex­ceptional"49 class of cases which will not be extended50 and which isin no way destructive of the principle laid down in Morice v. BishopofDurham 51 that there must be someone in whose favour the courtcould decree performance. They have been described as "merely oc-

41. Re Producers' Defence Fund, supra n. 35 at 252. Smith J. assumed for the pur­poses of the case that this view was correct.

42. Id.255.43. I.R.C. v. Broadway Cottages Trust [1955] Ch. 20 at 36, per Jenkins L.J.; Re

Shaw [1957] 1 W.L.R. 729 at 746, per Harman J; Re Endacott [1959] 3 All E.R.562 at 568. This principle is not affected by McPhail v. Doulton [1971] A.C.424. See also, e.g. Ope cit. supra n. 16 at 180 cf. Morris and Leach, Ope cit. supran. 40. In Australian cases in which trusts for non-charitable purposes have beenheld invalid (apart from Re Producer's Defence Fund, supra n. 35), courts havenot adverted to the possibility of the invalid trust taking effect as a mere power:Pooley v. Royal Alexandra Hospital, supra n. 29; Perpetual Trustee Co. Ltd. V.

Melville (1938) 38 S.R. (N.S.W.) 262; Public Trustee v. Nolan, supra n. 2;Union Trustee Co. of Australia Ltd. V. Church of England Property Trust(1946) 46 S.R. (N.S.W.) 298; Re Elmore, supra n. 2; Tidex V. Trustees Ex­ecutors and Agency Co. Ltd. [1971] 2 N°.S.W.L.R. 453 at 456.

44. Supra n. 2.45. Supra n. 43.46. Ibid. See also, e.g. Perpetual Trustee Co. Ltd. V. John Fairfax & Sons Ply.

Ltd., supra n.36 at 228.47. Ibid.48. Re Astor's Settlement Trusts, supra n. 2 at 1074, per Roxburgh J.; Re Pro­

ducers' Defence Fund, supra n. 35 cf. Lindsay's Executorv. Forsyth [1940] S.C.568 at 571-2.

49. Ibid. See also, e.g. Public Trustee V. Nolan, supra n. 2.50. Re Astor~Settlement Trusts, Ibid; Re Endacott, supra n. 43 at 568, 571; Public

Trustee v. Nolan, Ibid.51. Supra n. 15.

Trusts/or the Maintenance 0/Particular Animals 181

casions when Homer has nodded", which ought not to be followed"except where the one is exactly like another."52

Although such trusts appear to constitute an exception to the"beneficiary principle", their validity is limited in two importantrespects.

First, it is clear that they must not endure for a period longerthan that prescribed by the rule against perpetuities (although insome of the "animal cases", this question seems to have been passedover).53 This is not an application of the rule against perpetuitiesfor it is not concerned with questions of remoteness of vesting.Rather, it is a rule which restricts the duration of such trusts to therelevant perpetuity period, a requirement for their validity whichthe courts have established to give effect to the policy that capitalnot be rendered unexpendable for an unreasonably long time. 54That policy could not be implemented by an application simply ofthe rule against perpetuities for, under such a trust, there is no per­son in whom an interest can vest with respect to whom it could thenbe asked if that vesting was too remote.

The maximum period for which a non-charitable purpose trustcan be limited to endure is the same as that allowed for the vestingof interests - a life in being plus twenty-one years (although Vic­toria, Queensland and Western Australia have· statutorily providedas an alternative to this period that the trust instrument may specifyas the period a number of years not exceeding eighty).55 Expres­sions in the trust instrument such as "so long as the law ... permit­ted"56 or "so long as they can legally do SO"57 have been held torestrict the duration of the trust to a life in being plus twenty-oneyear period,58 although in some cases this has been contemplated tobe merely a period of twenty-one years. 59 Such a limitation willnot, however, be read by the court as implicit merely in order tosave the gift.60

In measuring lives, it has been held that it is to be a human lifewhich is to be taken as the measure, and in so far as North J. in ReDean61 suggested that the lives of animals be used, his decision hasbeen considered to be incorrect. 62 However, since animals willoften live for a time much shorter than the perpetuity period, it issuggested that it would be convenient and appropriate that, if aperiod is not stipulated in the trust instrument, the usual life expec­tancy of the animal in question should be considered. If it falls

52. Re Endacott, supra n. 43 at 571, per Harman L.J.53. See, e.g., Re Dean, supra n. 10; Pettingall v. Pettingall, supra n. 13.54. Re Cain [1950] V.L.R. 382 at 391, per Dean J. See also Ope cit. supra no. 24 at

309; Morris and Leach, Ope cit. supra n. 40 at 321-7.55. Perpetuities and Accumulations Act 1968 (Vic.), s.5; Property Law Act 1974

(Qld.), s.209; Property Law Act 1969 (W.A.), s. 101.56. Pirbright v. Salwey [1896] W.N. 86.57. Re Hooper [1932] 1 Ch. 38.58. Note that in Re Dean, supra n. 10, a period of 50 years was upheld.59. Supra notes 56 and 57.60. Re Compton [1946] 1 All E.R. 117; Re Kelly, Cleary v. James [1932] I.R. 255.61. Supra n. 10.62. Re Kelly, Cleary v. James, supra n. 60 at 260-1, per Meredith J. See further,

e.g., Mitford v. Reynolds, supra n. 9; Morris and Leach, Ope cit. supra n. 40 at322-3.

182 P. Jamieson

short of the twenty-one year period, the trust should not fail. 63 InRe Haines,64 judicial notice was taken of the life expectancy of acat being approximately sixteen years and, as such, less than the lifein being and twenty-one period. However, it is clear that the safestapproach is simply to limit the duration of the trust within theperpetuity period in the first place.

Secondly, though held to be valid, such trusts can be upheld onlyto a limited extent. Although it is lawful for the trustee to carry theterms of the trust into effect, there is no one who can compel him todo SO.6S He may perform if he wishes, for the court will not forbidthe performance of the trust if the trustee desires to perform it, buthe cannot be compelled to perform if he is unwilling to do so. How­ever, if he expresses his willingness to carry out the trust, but thenfails to do so, the trust does not merely take effect as a gift to himbeneficially.66 Rather, the trustee holds the property on a resultingtrust for the settlor's estate; the residuary legatee (or next of kin)can apply to the court for a direction that it should be paid tohim.67

If the trustee declines from the first to assume the responsibilitiesof the trust, Clauson J. in Re Thompson68 gives some indicationthat the court might then hold the bequest to be ineffective andsimply direct that the property pass to the residuary legatee. In avalid trust of perfect obligation, whether private or charitable, themaxim "equity never wants for a trustee" will always ensure that atrustee will be found, even if ultimately by appointment by thecourt. Whether this maxim applies equally to trusts of imperfectobligation is uncertain. 69

In McPhail v. Doulton,70 Lord Wilberforce concluded that thecourt if called upon to execute a trust power:

will do so in the manner best calculated to give effect to the settlor's ortestator's intentions. It may do so by appointing new trustees or byauthorising or directing representative persons of the class of bene­ficiaries to propose a scheme of distribution, or even should the properbasis of distribution appear by itself, directing the trustees so todistribute.

As the "beneficiary principle" is not satisfied by showing that acourt could see ex post facto whether or not a trust has been per­formed, but requires that the trust must be of such a nature that thecourt itself can direct its execution in cases where the trustee refuses

63. See, e.g., this view in op. cit.supran.16at 180-81.64. (1952) Times, 7th November.65. See generally, e.g., Re Astor's Settlement Trusts, supra n. 2 at 1071-4.66. Cf. Pettinga// v. Pettinga//, supra n. 13, where Knight Bruce V.C. held that if

there was any surplus after the trust purpose had been carried out, on the con­struction of the will, it was to be enjoyed by the executor beneficially. The deci­sion is perhaps best regarded as having been decided on the construction of theparticular words used in the will by the testator: J .G. Riddall, The Law ofTrusts (1st ed. 1977) at 104.

67. Re Thompson, supra n. 14.68. Ibid.69. E.g., J.G. Riddall, Ope cit. supran. 66.70. [1971] A.C. 424.

Trustsfor the Maintenance ofParticular Animals 183

to act, or in cases where there is no trustee for the time being,7!McPhail v. Doulton may now be authority for approving a schemeeven for a non-charitable purpose trust. 72

The position of trusts for the maintenance of particular, desig­nated animals is far from certain in the present condition of theauthorities. In other jurisdictions, legislation has been enactedclarifying their validity. In Sri Lanka, for example, the Trusts Or­dinance 1917 provides that a trust must have a beneficiary who, byreason of s.9, must be a person, It would appear that this wouldspecifically prevent trusts for non-charitable purposes, includingthose for the maintenance of particular animals, being valid. 73 NoAustralian State has yet included the certainties of a trust amongstthe provisions of its trust legislation.

In Canada, legislation in Ontario, Alberta and British Columbiadeems all non-charitable purpose trusts with "specific" objects to bepowers, valid for a period not exceeding twenty-one years. 74 At theend of this period, if income or capital remains, those persons whowould have been entitled to the trust property, if the trust had beeninvalid, become entitled to it. Similarly, in the United States, theRestatement of the Law of Trusts provides that, although no en­forceable trust is created where property is transferred in trust for aspecific non-charitable purpose, the transferee has power to applythe property to that purpose, unless that application is to be madeat a time beyond the period of the rule against perpetuities or thepurpose is capricious.75 No similar legislation clarifying the posi­tion of such trusts exists in any of the Australian States. A testatorwho wishes to provide for the maintenance of particular, desig­nated animals (invariably, in respect of a pet following his death)might, therefore, be well advised to seek to fulfil that desire byother means.

Although a valid power is not to be spelt out of an invalid trust,there would appear to be no objection to drafting the purpose as apower instead of a trust, giving the property to the ultimate bene­ficiary subject to a power in a third party to apply the property tothe non-charitable purpose for the duration of the perpetuityperiod.76 However, this method cannot ensure that the property

71. Supra n. 19 at 121.72. Ope cit. supra n. 24 at 172 fn., where the authors ask if this interpretation may

be valid.73. E.g., see G.W. Keeton and L.A. Sheridan, The Comparative Law of Trusts in

the Commonwealth and the Irish Republic (1st ed. 1976) at 241.74. Perpetuities Act, R.S.O. 1980, c.374, s.16(1); Perpetuities Act, R.S.A. 1980, c.

P-4, s.20(1); Perpetuity Act, R.S.B.C. 1979, c. 321, s.21(1). See further, e.g.,Woodv. R. [1977] 6 W.W.R. 273 (sub. nom. ReRussell; Woodv. R) 1 E.T.R.285 (Alta.).

75. Restatement of the Law of Trusts (2d) §124. See further, e.g., Re Searight'sEstate, 87 Ohio App. 417, 95 N.E. 2d 779 (1950) (dog); Gold v. Price, 24 N.C.App. 660, 211 S.E. 2d 803 (1975) (grave).

76. E.g., see Re Douglas (1887) 35 Ch.D. 472. In Re Wootton [1968] 1 W.L.R. 681at 688, Pennycuick J. suggested that if George Bernard Shaw's trust for thereform of the English alphabet (which had been held invalid in Re Shaw, supran. 43) could have been read as a power, it would have been valid. For a moredetailed discussion, see Ford, supra n. 40 at 161-162.

184 P. Jamieson

will be applied by the donee of the power towards the specified pur­pose.

Where there is a gift to one charity followed by a gift over toanother charity upon an event which may occur outside the perpet­uity period, the gift over will still be valid. 77 A testator might takeadvantage of this rule in making provision for the maintenance of aparticular animal by giving a sum of money to a charity on the con­dition that, should it fail to maintain the animal, the sum shall goover to the second charity. Alternatively, a testator might simplymake to an individual an absolute gift of the animal, together withother property, on condition subsequent that if the animal isneglected the property shall revert or go over. 78 The imposition ofsuch conditions or the creation of conditional limitations mightwith reasonable certainty better ensure the fulfilment of thetestator's wishes. 7 9

At present, the simplest alternative may be to form a companywith the desired non-charitable objects. Gifts could then be madeto the company either by will or inter-vivos. 80

Various suggestions have been made urging that all trusts fornon-charitable purposes should be valid. 81 Equally strong, how­ever, has been authority to the contrary and, notwithstanding theantiquity of the "anomalous and exceptional" cases, their positionremains uncertain. A testator who wishes to make provision for themaintenance of particular, designated animals might well considerseeking to fulfil that desire by alternative means.

77. Christ's Hospital v. Grainger (1849) 1 Mac. and G. 460, 41 E.R. 1343; Re Tyler[1891] 3 Ch. 252; Royal College of Surgeons ofEngland v National ProvincialBank Ltd. [1952] A.C. 631. cf. Re Dalziel [1943] Ch. 277. These decisions havebeen criticized, e.g. see Roman Catholic Archbishop of Melbourne v. Lawlor,supra n. 2 at 19; R.S.P.C.A. v. Benevolent Society of N.S. W. (1960) 102C.L.R. 629 at 641. However, the reforming legislation (supra n. 55) expresslydeclares that "the rule against perpetuities shall not apply to a gift from onecharity to another": s. 16(2), Vic.; s.219(2), Qld.; s.III(2), W.A.

78. G.E. Bogert and D.H. Oaks, Cases and Text on the Law of Trusts (5th ed.1978) at 117. cf. Betts v Snyder, 341 Pa. 465,19 A. 2d 82 (1941) (a gift of landin fee simple with a gift over to a charitable corporation if the donee failed tosupport the testator's favourite horse. The gift over failed under the Ruleagainst Perpetuities).

79. Supra n. 19 at 124.80. Report of the Goodman Committee on Charity Law and Voluntary Organiza­

tions (1976), para. 24. See Parker and Mellows, Ope cit. supra n. 16 at 180;Ford, supra n. 40 at 162-169.

81. E.g., Report of the Goodman Committee on Charity Law and VoluntaryOrganizations (1976). See also Ford, Id. at 159 (especially at 173-176, 178 for adetailed discussion of issues of standing to enforce the trust).