Re Astronomical Observatory.
Mr Charles Rooking Carter, formerly of Wellington, made his Will on the sixth day of June, 1896, and I am asked to give an opinion on a section of that Will.
The Will was duly proved, and I understand that two members of the Institute are trustees of this particular part of Mr Carter's Will, and accumulations of the Fund are vested in their names. The part of the Will to which I refer, and on which I am asked to give an opinion, is this:—
“And as to all the residue and remainder (if any) of the said net proceeds of the sale, conversion, and getting-in of my estate as aforesaid, my trustee shall transfer the same to the Governors for the time being of the New Zealand Institute at Wellington, to form the nucleus of a fund for the erection in or near Wellington aforesaid, and the endowment of a professor and staff, of an astronomic observatory fitted with telescope and other suitable instruments for the public use and benefit of the Colony, and in the hope that such fund may be augmented by gifts from private donors, and that the observatory may be subsidised by the Colonial Government; and without imposing any duty or obligation in regard thereto, I would indicate my wish that the telescope may be obtained from the factory of Sir H. Grubb, in Dublin, Ireland.”
The question is what those gentlemen in whom as Governors of the New Zealand Institute the fund is vested ought to do to carry out the trusts of the provision in question. It will be observed that the testator's intention was
that the fund should be transferred to the Governors of the Institute “to form the nucleus of a fund for the erection in or near Wellington aforesaid, and the endowment of a professor and staff, of an astronomic observatory fitted with telescope and other suitable instruments for the public use and benefit of the Colony.” These are the words of the bequest on which the whole question turns. The principle upon which the whole question turns is as to the duty of those trustees with reference to the application of the fund. Originally the amount was approximately £2200, and the accumulations of interest up to the present time have brought the fund up to about £9000.
The real question is as to the method in which the intention of the testator should be carried out. This is a charitable trust, and, accordingly, there is no objection under the rules as to perpetuity to the fund being accumulated for an indefinite period.
It is suggested on the part of some of the Governors of the Institute that, inasmuch as the fund has now accumulated to about £9000, that £9000 should be expended towards the object indicated by the testator, notwithstanding the fact that it is manifestly impossible that the expenditure of the £9000 would be sufficient to carry out the testator's object. The other members of the Board of Governors consider that the fund should be further accumulated and allowed to increase so that it will be sufficient to really carry out the testator's intention.
In my opinion, it is beyond dispute that it is the duty of the Governors in whom the fund is vested to continue to accumulate it until it has reached such a sum as will be sufficient for the purpose of carrying out the testator's intention. It is plain, in accordance with the information before me, that it is impossible to do that with the fund in its present state of accumulation. Accordingly, it is plainly the duty of the trustees to continue to hold the fund subject to the trusts of the testator's Will until the amount has arrived either by the accumulation of interest, or by that method and the addition of other donations to the fund from other sources, at such a sum as will make the testator's intention capable of being carried out. To expend the existing accumulations in partly doing what the testator intended is plainly not right, and, indeed, would, in my opinion, be a breach of trust for which the trustees in whom the fund is vested would be responsible. It is difficult to see how it can be suggested that a partial expenditure of the accumulated fund in the method suggested could be in any way a carrying out of the testator's intention. As I have said before, the testator's intention is what governs, and the trustees would not be justified in proceeding with the erection of an observatory which is probably all that the existing fund would provide for, without also providing for the other part of the testator's intention. It was not the testator's intention to build a trumpery observatory of little or no practical use in some corner of the Dominion, when, as a matter of fact, the fund is intended to be the nucleus or commencement of an accumulated fund sufficiently large to carry out the whole of the testator's intention. On this question I have no doubt whatever, and I am quite unable to advise the expenditure of this fund in anything else than the erection of a complete observatory endowed with a professorship and staff and the necessary instruments in the way provided for by the testator's Will.
I may add that the testator intended the augmentation of his bequest by gifts from private donors. Accordingly, he intended that the fund should remain unexpended until either by the accumulations of interest or by gifts of this character there should be sufficient money available to carry out his object.
I understand it is suggested that “in or near Wellington” is not a suitable locality for the erection of an observatory. It is plain that the trustees of this fund would have no authority to expend this fund for the purpose designated by the testator unless it were within the locality indicated. If it is found eventually that no suitable spot can be designated in or near Wellington where such an observatory can be erected, then it would be necessary, in my opinion, to obtain the sanction of the Court, or legislation, to the erection of an observatory in that other locality.
The trustees, in my view, have no authority to select such a locality of their own motion.
(Signed) C. H. Treadwell
Wellington,,14th September, 1933.