The Chairman of the A.I.F. Canteens Fund Trust being the trust administering the McCaughey bequest has forwarded me the following minute for advice:

The trustees of this Fund, who at the request of the executors of the estate of the late Sir Samuel McCaughey, have undertaken the administration of that portion of the bequest devoted to the assistance of ex-soldiers and the widows and children of soldiers who were killed or died of wounds in the recent war, would esteem the favour of your advice.

Difficulties have arisen in regard to the interpretation of the words in the will 'killed or died of wounds'.

It will be observed that some time since the question was referred for the consideration of yourself and that of the Crown Solicitor. The trustees reopened the subject recently by further reference to the Crown Solicitor whose opinion is now enclosed. Mr Castles advises, before his opinion is acted upon, the advice of the Solicitor-General should be obtained.

If a restricted meaning is placed upon the wording of the will, many children will be excluded from the benefits available under the bequest, notwithstanding that their soldier fathers grievously suffered injuries ending in death as the direct result of their war service.

In illustration those may be mentioned who endured the suffering involved by exposure in the trenches on the Somme in the exceptionally severe winter of 1916. Again it would exclude the children of many who died from 'shell-shock' a term which includes excessive war strain as well as injuries incurred by shell explosion, and further the very distressing, and at times fatal, effects of malaria and other diseases may be mentioned.

The trustees consider that undoubtedly it was not the intention of Sir Samuel McCaughey to make such invidious distinctions, and this is supported by the apparently wider scope in which the wording of the will refers to 'relief or assistance of the members of the Australian Military or Naval Expeditionary Forces who should have served abroad in the war against Germany and her allies'.

It seems unreasonable to conclude that whilst such assistance was contemplated to such soldiers when they safely returned (which assistance would include their wives and children) that their widows and children should be excluded from benefits if instead of returning safely, the breadwinners had died in the service of their country.

Any reference to the courts would, it appears, be necessary in regard to specific cases and not in respect to general interpretation. If that is the case, as the different injuries causing death would obviously be of great variety, such a procedure would be very cumbersome, and would involve considerable delay and expense.The trustees are very hopeful that your advice may enable them to place an interpretation upon the words in question which would give full effect to the evident generous intentions of Sir Samuel McCaughey.

I have perused the Crown Solicitor's opinion herein (No. 462 of 21 November 1921), and given careful consideration to the matter.

The case on which that opinion was given did not state the relevant provisions of the will quite accurately.

The objects of the trust with which the Canteens Fund Trust is concerned are (according to a copy of the will now submitted to me) 'the relief or assistance of members of the Australian Military and Naval Expeditionary Forces who shall have served or shall serve on active service abroad in the war now being waged against Germany and her allies or of the widows and children of any such members who may be killed or die of wounds received in such war'.

The will bears date 1 February 1918.

The two classes of beneficiaries are members of the Forces who served on active service abroad in the war, and the widows and children of members who may be killed or die of wounds received in the war.

The suggestion of the Chairman of the Fund is that a restricted interpretation of the words [emphasised] would exclude the children of many dead soldiers, and would thus defeat the intention of the testator as indicated by the will itself; seeing that the absence of limitations in the case of surviving members cannot be reasonably reconciled with a limited selection in the case of widows and children of deceased soldiers.

Of course the intention of the testator is the thing to be ascertained.

It is well established that, without some clear expression of intention on the part of a testator, the court does not attribute to him a capricious intention, or a whimsical or harsh result to his dispositions, where the words of his will can be read otherwise (Halsbury, Vol. 28, p. 669, para. 1283).

But it is also well established that where the words are unambiguous in the context, the sense given them by the context cannot be departed from, or a different meaning given them, because they lead to consequences which are generally considered capricious, unjust, or unreasonable. 'A testator has a right to be capricious if he chooses', and the court will not rewrite the plain terms of a will to make it conform to any theory of what the testator probably meant (Halsbury, Vol. 28, p. 669, para. 1282, and cases there cited).

The testator in this case has used the plain words 'may be killed or die of wounds received in the war', and in my opinion those words cannot be extended beyond their natural meaning in the context.

The question then is: What is that meaning?

There are two categories:

1. members who were killed in the war;
2. members who die of wounds received in the war.

To take the second category first-I think that death from wounds can reasonably be given a wide interpretation, to include any kind of physical injury inflicted by enemy agency, or by the accidental miscarrying of something intended to cause injury to the enemy. This would include gassing, and I think shell-shock, when death was the result from either.

But 1 do not think that it would include death from disease, or exposure, or from the hardships attending on active service. I do not think it possible to stretch the meaning of the words used so as to regard death from pneumonia, or typhoid, as death from wounds received.

Next, take the words 'killed in the war'. The word 'killed', by itself, is distinctly capable of more than one interpretation, as-

1. limited to death inflicted by a personal agency;
2. extended to include death by accidental violence; or
3. still further extended to include death from any cause.

See Oxford Dictionary, sub tit. 'kill':

To put to death; to deprive of life; to slay, slaughter. In early use implying personal agency and the use of a weapon; later, extended to any means or cause which puts an end to life, as an accident, over-work, grief, drink, a disease, etc.

'Killed' in this context clearly includes all cases of death caused by any form of enemy agency. I think it also clearly includes death from accidental injury received in the war, e.g. from our own missiles intended for the enemy.

After careful consideration, I also think it extends to include death in the war caused by any agency-e.g. disease, exposure, or hardship connected with war service. The only thing in the context which might tell against this construction is the following phrase: 'or died of wounds received'. It might be argued that these words were surplusage if 'killed' had so extended a meaning. But that is not so. 'Killed in the war' implies death during the war; whereas 'died from wounds received in the war' includes death after the war from wounds received in the war. Looking at the whole context, I think that the word 'killed' should receive the widest construction.

On the above construction-which I think is reasonable and can be supported-the words of the will would still not cover every case of the death of a member on active service during the war, nor every case of death after the war as a result of active service.

For instance, I think 'killed in the war' would not cover the death from causes wholly unconnected with the war (e.g. the death from accident in the street or the hunting field of a soldier on leave, outside the area of hostilities).

And 'die from wounds received in the war' would not include death after the war as a result of some happening during the war which was not a wound as construed above.

However unfortunate such exceptions may seem, they follow from the words used by the testator.

Clause 24 of the will is as follows:

I declare that my Trustees shall have the fullest powers of determining whether any moneys are to be treated as capital or income and generally of determining all matters as to which any doubt difficulty or question may arise under or in relation to the execution of the trusts or powers of my Will and that every determination of my Trustees in relation to any of the matters aforesaid whether made upon a question formally or actually raised or implied in any of the acts or proceedings of my Trustees in relation to the premises shall bind all parties interested under my Will and shall not be objected to or questioned upon any ground whatsoever.

I do not think that this clause enables the trustees to give binding determinations as to who are beneficiaries under the will, or ousts the jurisdiction of the courts to determine such matters.I would point out, however, that my advice on the construction of the will is not necessarily a full protection to the trustees, and I would suggest their careful consideration whether it would not be advisable to obtain the direction of the court in a few specific cases selected to bring up the points on which decision is desired.

[Vol. 18, p. 289]