Charitable Trust Status
Cases
Re Howley’s Estate
[1940] IR 109
Gavan Duffy J: The late Very Rev Patrick Canon Howley PP, died on the 6th of April 1937: by his will, dated the 22nd of June 1930, he left all his property to the Bishop and Chapter of Killala for the time being; he directed them to dispose of the yearly income from his “shares,” which I hold to include certain stock, at the annual meeting of the Chapter, to giving specified yearly sums (paragraphs (a) to (e)) to certain persons for life, and by giving (f) “£2 each to the members of the Chapter at their annual meeting each year to say eight masses for the repose of my soul and that of my friends and benefactors,” and by disposing (g) of “the balance of the income each year at the annual meeting of the Chapter on what in their united wisdom they consider the best interests of religion.” I understand that the testator left pure personalty only.
The Most Rev Dr James Naughton, the Bishop of the Diocese of Killala, has alone proved the will, on the true construction of which I hold that the Bishop and his successors and the Chapter of the Diocese as a corporate body were appointed trustees as well as executors. I shall return to the legal effect of this appointment of trustees.
The principal question is whether the gift of residue is void for uncertainty and for remoteness.
I hold the gift to be charitable and valid.
The two chief authorities cited against this view are the decisions of O’Connor MR and the Court of Appeal in Ireland in MacLaughlin v Campbell [1906] 1 IR 588, and the opinion of the Judicial Committee of the Privy Council in England in Dunne v Byrne [1912] AC 407.
In the Irish case a gift “for such Roman Catholic purposes” as trustees deemed fit and proper was held not to be charitable, because the gift was not in terms made for religious purposes and because the purposes thus authorised by the will were much wider than the religious purposes of the Catholic Church; but it was recognised in the Court of Appeal, particularly by Holmes LJ, that a gift for the purposes of the Catholic Church is charitable.
Dunne v Byrne [1912] AC 407 is much nearer the present case; there was a residuary gift by Father Byrne, a Catholic priest, “to the Roman Catholic Archbishop of Brisbane and his successors, to be used and expended wholly or in part as such Archbishop may judge most conducive to the good of religion in this diocese”; the Supreme Court of Queensland had held unanimously that the gift was charitable, upon the overwhelming authorities in support of the rule laid down in In re White [1893] 2 Ch 41 to which I shall recur; the High Court of Australia, by a majority of three to two, reversed this decision, mainly on the ground, rejected in the Privy Council, that the Archbishop might spend part of the money on non-charitable objects. The Judicial Committee held the established rule for construing gifts for religious purposes as prima facie charitable not to apply to a gift which, instead of being made for “religious purposes,” was to he spent as the Archbishop might judge most conducive to the good of religion in the diocese, since a non-charitable purpose might in Catholic eyes be most conducive to the good of religion; the Committee referred, as an instance, to Cocks v Manners 12 Eq 574, where a gift to a community of nuns, established to work out the salvation of the sisters by religious exercises and self-denial, was held not to be a charitable gift in English law, on the ground that private piety in a convent does not tend, directly or indirectly, to edify the public; this dictum (for the bequest was held good as a personal gift for the members of the community) has come to represent established law in England and has sometimes been tacitly accepted here under similar jurisprudence, which constantly resorts for precedent to the vast field of English Judge-made law. I apprehend that the point ought not be taken as having been finally settled for us in England, where the law was determined by the English outlook upon societies for self-sanctification. The assumption that the Irish public finds no edification in cloistered lives, devoted to purely spiritual ends, postulates a close assimilation of the Irish outlook to the English, not obviously warranted by the traditions and mores of the Irish people. I need say no more on the matter here, for it is easy to cite instances (though this was selected as the conspicuous example) of non-charitable expenditure, which may be conducive to the good of religion.
“Charity” is in law an artificial conception, which during some 300 years, under the guidance of pedantic technicians, seems to have strayed rather far from the intelligent realm of plain common sense; thus, the textbooks tell us that charity in the eyes of the law includes a bequest for a “Home for Lost Dogs,” as an institution for domestic animals must benefit the human race which they serve, and a legacy to further “Conservative principles,” if combined with zeal for mental and moral improvement – so catholic is juristic charity – though it must draw the line at the spiritual exercises of a convent or the plans of an Archbishop conducing to the good of religion in his own diocese; such are the vagaries of Judge-made law. There are decisions extant in the charitable domain which suggest that in Ireland, so far as we still have a comparatively free hand, we must proceed with great circumspection where “charity” is concerned.
In my opinion, the final decision in Dunne v Byrne [1912] AC 407 was a deliberate attempt to curb a growing tendency in English law to benignity, perhaps excessive benignity, where gifts of a religious character were concerned.
The wording of the gift here must be carefully noted; it is to be applied every year in the best interests of religion, as determined by the united wisdom of a Bishop and Chapter of the Catholic Church; the testator thus calls for a solemn decision, year by year for ever, by an official body, eminently qualified to make it, as my examination will show presently.
Since the time of Lord Eldon gifts in the most general terms for the promotion of religion have been recognised as charitable in law; the principle, as it was put by a strong Court (Lindley, Bowen and AL Smith, LJJ) in In re White [1893] 2 Ch 41 at p 52, is that “a bequest to a religious institution, or for a religious purpose, is prima facie a bequest for a ‘charitable’ purpose, and that the law applicable to ‘charitable’ bequests, as distinguished from the law applicable to ordinary bequests, ought to be applied to a bequest to a religious institution, or for a religious purpose”; this passage is adopted by Lord Hanworth MR in In re Bain, Public Trustee v Ross [1930] 1 Ch 224, at p 231.
In this country the principle was applied more than a century ago by Lord Manners in Powerscourt v Powerscourt 1 Moll 616, and it is recognised in recent times by O’Connor MR, Barton J, and Ross J in Arnott v Arnott [1906] 1 IR 127, at p 134, In re Salter [1911] 1 IR 289, at p 796, and Rickerby v Nicholson [1912] 1 IR 343, at p 347, respectively.
If Canon Howley had left his residue to be applied in the best interests of religion, I doubt if any one would have had the hardihood to contend that the bequest was not charitable, because the words, “religious purposes” did not appear; but, if his phraseology be taken to have the same meaning as Father Byrne’s, I recognise that the reasoning in Dunne v Byrne [1912] AC 407, applied in In re Jackson [1930] 2 Ch 389, concludes that he contrived to take his bounty out of the charitable category by the malign effect of his confidence in his trustees; and, further, that it makes so effective a distinction between this way of helping the Church and a gift for “religious purposes” that a Court must presume charity in the latter case and reject it in the former. I should be sorry to have to decide the issue on so narrow a dividing line, if any there be here, though I am by no means disposed to minimise the importance of scrupulous attention to the precise words in which a will is expressed. There are no cestuis que trustent here, and the residuary gift of income, if not charitable, is clearly too indefinite to stand, since a man may not ask his trustees to make his will for him after he is dead.
I prefer another approach, with the high authority behind it of O’Connor J (unreported) in the High Court of Australia, in Dunne v Byrne [1912] AC 407. Here the mandate to perpetual trustees points the way; see the older case law examined by Powell J in Moore v The Pope Benedict XV [1919] 1 IR 316. In In re Davidson [1909] 1 Ch 567 where a power to give to objects non-charitable defeated a bequest to the Archbishop of Westminster, Cozens-Hardy MR (at p 569) says that, while a Court cannot hold a trust charitable merely because the trustee has a religious office, he does not doubt that “if you find in a will words indicating that a distribution is to be made by persons in succession as holders of a particular religious or charitable office, that goes far to establish – and, it maybe, goes sufficiently far to establish – the fact that the whole gift is charitable.” In my opinion, that is this case and the charitable gift is established by the nature of the perpetual office or offices attributed by the testator to the trustees who are “in their united wisdom” to allot the yearly balance of income in “what they consider the best interests of religion.” The precise destination of the balance is left to them and we have here, in my opinion, an excellent example of a case “where,” to quote Greene MR in In re Ashton [1938] 1 Ch 482, at p 495, “the purpose named takes its colour from the character of the trustee.” I am satisfied that the testator had religious purposes in view and that these trustees would rightly regard any other as a breach of a sacred trust.
The next question concerns the validity of the gift of £2 each to the members of the Chapter at their annual meeting for masses. This bequest “for the repose of my soul and that of my friends and benefactors” is, in the language of other days, “a gift to God”; it is a gift of which the paramount intention is beyond all doubt the celebration of mass for the souls and not the honoraria to priests, unknown indeed (after a few years) to the testator and not closely connected with him. The character of the Most Holy Sacrifice in the conviction of a Catholic and a dignitary of the Church, like the testator, puts the celebration of mass on a plane so far above the alms to be celebrant that no comparison of their relative importance in the eyes of the testator is thinkable; I have no evidence on this head, nor do I think I need any, because the Catholic teaching on the mass is known to the Common Law; see O’Hanlon v Logue [1906] 1 IR 247, at pp 265, 274 per Palles CB. A lawyer can ascertain the Catholic position readily from the evidence of the Bishop of Cork in Attorney-General v Delaney IR 10 CL 104, and there is, I think, a practice of assuming the acquiescence of all parties in that authoritative exposition, where a Catholic testator has left money for masses, because it is felt that to ask for explicit acceptance, when there is no hint of any contest on the matter, would be mere formalism. I see no objection to this assumption, to facilitate that ascertainment of facts familiar to the Common Law, which we are all supposed to know.
But the gift (or gifts) for masses, though charitable, may nevertheless fail, if too remote; see In re Stratheden [1894] 3 Ch 265. And it is well settled that gifts of income may offend the rule against perpetuities, although the capital be vested in trustees. If the testator made separate gifts for masses for every year, those gifts may be valid for twenty-one years from his death and void thereafter; I am prepared to hold the mass gifts on that hypothesis to be good for twenty-one years, since each gift in the series is quite independent of the other gifts and each of the gifts thus held valid must take effect within twenty-one years; see Gray, 3rd edn, Ch XI and Appendix H, for a convincing exposition of the logic of this view, sometimes overlooked in the past, when a whole series of gifts has been held void.
I do however, find a difficulty in ascertaining whether the will makes one gift for masses, and one gift of the balance of income every year, or several. The tot homines argument for a number of mass gifts is obvious. On the other hand, the scheme of the will is to give the whole property outright to the executor-trustees, whose first duty is to keep it intact; it is to be kept intact for ever and they are not intended ever to distribute anything but its yearly produce; as to that, the disposal of the income every year is introduced by a single governing clause: “They will dispose of the yearly income accruing from the shares at the annual meeting of the Chapter as follows”; they are to dispose of one thing, the yearly income, by providing first for five distinct life annuities, then for masses, and finally for the application of the residue to religious ends. Of course the residue will grow, as the annuitants die, but, large or small, it remains the residue dedicated to religion. The life annuities are given in five paragraphs, in these words (all but one): “They will give a yearly income of £ – to AB during his (her) lifetime”; but only a highly technical construction would hold the annuitants to get each a separate gift every year; each of them gets, I think, an annuity for life as a single gift. If so, it is perhaps a little more difficult to treat the provision for masses in the next paragraph of the will, though the celebrants vary from time to time, or the provision in the final paragraph for applying the residue of the income yearly in divers ways to religion, as really constituting so many separate gifts; each of the seven disposing paragraphs, or rather sub-paragraphs, is governed by the same single introductory direction for the disposal of the yearly income. On the whole, I think that I adopt a construction more consistent with the governing direction and more in harmony with the five separate single gifts of an annuity by reading the bestowal of money for masses in a number of £2 units as being intended really to make one general gift for masses for souls, a single gift of eighty masses a year for ever, that is, eight masses to be said by each member of the Chapter, which on the evidence numbers ten; since this is a charitable gift, the trustees must, in my judgment, if at any annual meeting the number be short of ten, have the missing masses said, with the appropriate honorarium, by a priest or priests chosen by themselves, other than the missing recipient or recipients no longer on the Chapter. Similarly, much in the same way as the modalities of the annual disposal of the annual income are set out under seven heads, in seven sub-paragraphs, to wit, five several annuities, masses, religion, I construe the direction for disposing of the residue of income as being intended to fill in the modalities of a general residuary gift of income, a single gift, for religion. I observe that a similar position arose in Hearn v Donellan [1901] 1 IR 402n, but the report does not tell us whether the question now under consideration was raised. There are a number of cases in the old Exchequer Reports in England as to death duties, where the question was whether a testator’s bounty to the poor, expressed in annual payments of income, was to be regarded as one collective gift or several gifts, but these cases turned on Revenue Acts and on the wording of particular wills.
The trusteeship contemplated by the testator raises further questions: he identifies his trustees with the Bishop and Chapter; he sees the Chapter as a body that will never die: hence the Bishop for the time being as co-trustee must have been intended to include the successors of the present Bishop.
If the Bishop and Chapter are a corporation or corporations recognised as such by our law, no difficulty need arise; if not, a regular trusteeship must be established, since no charity can fail for lack of trustees.
The evidence of the Very Rev Denis O’Connor, a Bachelor of Canon Law, shows that the Chapter is a Cathedral Chapter of ten Canons for the Diocese of Killala, constituted under a decree of the Sacred Consistorial Congregation in Rome, dated the 14th July 1913, for the purposes of celebrating the Divine Service with greater solemnity, assisting the Bishop as his senate or council, and, during a vacancy in the episcopal See, administering the Diocese. The witness explains the method of appointment to the Chapter. Under Canon Law the Chapter must meet at least once a year. In practice its annual general meeting is held on Holy Thursday. The deponent, who is official secretary to the Bishop, shows the Chapter to be a very responsible body.
Under Canon Law the Chapter is a corporation with perpetual succession, a common seal, and the right to hold and administer property; its annual decision under the will would be a capitular act, a conclusion reached by a majority of the Chapter. I am not told whether the Bishop is himself a corporation, nor whether Bishop and Chapter together make another corporation, nor whether the Bishop has the right to attend and vote at meetings; if not, a Scheme may be required to modify the plan of the will; but the affidavits before me do not seem quite consistent as to his position.
The issue here may be put as a claim for recognition of an ecclesiastical corporation, because that species of corporation was recognised at Common Law by virtue of the absorption by the Common Law of portion of the Canon Law, or as a claim for recognition of a foreign corporation; the success of either claim would secure perpetual trustees for Canon Howley’s will.
The first alternative raises an important constitutional question, upon which the Attorney-General ought probably to be heard for the State; the answer to the question, if the old Common Law sustains the applicants, must depend upon the proposition that the great stream of the Common Law rolls on from generation to generation, remaining through all vicissitudes (subject to statute law) the same stream so that the interruptions to its normal flow during three centuries must be regarded as temporary pollutions, the removal of which leaves the Canon Law under our Constitution to-day the same vigorous current.
The alternative thesis may also need elaborate argument, though it does not involve the same historical research. Foreign corporations, recognised for commercial reasons in the early eighteenth century, are now recognised under our law for the most varied purposes; the recognition is sometimes based on the comity of nations, whatever its true origin may have been, and the Treaty of the Lateran of 11th February 1929, coupled with our diplomatic representation, at the Vatican and its diplomatic representation in Ireland, may strengthen the argument for recognition in our Courts of corporations established by the Church, whose special position, as the guardian of the Faith professed by the great majority of the citizens, is formally recognised by the State under the Constitution. On the other hand, these corporations have (apart from their corporate character) little in common with the ordinary foreign company; and the Cathedral Chapter of Killala was organised as a corporation for the express purpose of carrying on its work in Ireland and nowhere else; its claim to recognition here as a corporation, if based on foreign law as distinct from the Common law, must therefore meet the objection that the claim involves the admission by our municipal law of an external jurisdiction to incorporate our citizens in Ireland and have the incorporation acknowledged by the state, though made regardless of our own laws as to incorporation.
A decision on the claim under either of its alternative forms may be far-reaching and would, I fear, involve expense disproportionate to its importance to Canon Howley’s estate. If the Legislature sees no objection to recognition of the incorporation of Bishops and Chapters under Canon Law, a statute ad hoc would be a most convenient solution. I am not in a position, without further argument and on the material now before me, to attempt to decide the issue; nor is there any immediate need to decide it; if the matter has to be decided, I think further evidence will be necessary as to the precise position occupied by His Lordship the Bishop of Killala in Canon Law with regard to the Chapter and as to the precise corporation or corporations which I am invited to recognise as trustees of Canon Howley’s will.
The testator could have avoided the administrative difficulty by resorting to the expedient provided by s 15 of the Charitable Donations and Bequests Act 1844, and I trust that means may be devised for making the administration of the trust effective, without asking the Court to decide questions arising out of the Canon Law.
The execution of the trusts of the will may present some difficulty during the time that must elapse before either the lawful trustees of the will are ascertained by the Court or an effective plan for dealing with an anomalous situation is elaborated and carried out, without the decision of this legal question; such a plan, whether in the form of a Scheme or not, may need the sanction of the Court.
I understand that all the property now stands solely in the name of the Bishop of Killala, the only executor who has proved the will, and I think that he should continue to hold the property until the position is clarified.
But, should His Lordship desire my aid in the interim, I shall be very willing to consider a plan for facilitating the execution of the trusts by giving express authority to named persons, being the existing members of the Chapter at the date of my suggested order, to act in the trusts of the will, in their individual capacities, in conjunction with the Bishop until a date to be fixed, for the purpose of paying the annuities, distributing the money for masses, and deciding upon the application of the residue of income, so far as these duties may not have been performed since the death of the testator, I see no difficulty in making an interim order of that kind under the same jurisdiction as an order for a Scheme.
I have only to add that, if the income for any year be insufficient to meet in full all the payments directed by the will, the annuities and the money for masses must abate rateably and there can be no resort to capital for a deficiency; and that, though the testator expressly directed the Bishop and Chapter not to sell his “shares” and to transfer them into their own names, apparently as a permanent investment, it is, in my opinion, the duty of prudent trustees to place the whole property in trustee investments; I must, however, have regard to the fact that war conditions may have unduly devalued all or some of the securities; I have no evidence on this point; and my general opinion, given in response to a question in the summons and without expert evidence upon the particular securities held by the testator, is meant to be no more than general guidance to the trustees; at the present time a sale may be most undesirable and, in that case, my general opinion is not intended as a direction for sale at this time; upon this question the Bishop of Killala, whom I take to be the only executor acting as such, will, no doubt, take advice; he may then be justified in deciding to defer the sale and he can, of course, if necessary, apply to the Court for an express order in the matter.
Bank of Ireland Trustee Co Ltd v Attorney-General
[1957] IR 257
Dixon J: The bequest in this case was as follows:
“£2,000 to Sister Therese of the Carmelite Convent, Blackrock, County Dublin, or should she predecease me then to the Prioress for the time being of the said Convent to be applied in either case for the repair and/or improvement of the Convent.” The only question raised is whether this is a valid charitable bequest in law. On the terms of the bequest it is clear that no question of a perpetuity could arise and the bequest is capable of being upheld as a valid non-charitable gift. The matter would, therefore, be academic were it not for the exemption from legacy duty given by the Stamp Duties Assimilation Act 1842, s 38, in the case of any legacy which is to be applied “in support of any charitable institution in Ireland, or for any purpose merely charitable.” To determine the question of exemption or non-exemption, the Revenue Commissioners were served with the proceedings and have appeared, and been heard, by counsel. As has been pointed out, the word, “merely,” does not really add anything to the force of the words, “merely charitable,” in the Statute of 1842: see Attorney-General v Bagot 13 Ir CLR 48; and the net question, therefore, is whether the bequest is charitable. The testatrix, herself, so described it in her will, as the bequest is the first of a number which she introduced by the words, “I make the following charitable bequests”; but this does not conclude the matter.
The expressed purpose of the gift is the repair and/or improvement of the Convent, which was taken in the argument to refer, and does in my view refer, to the buildings which house the nuns who form the notional entity of the Convent. Money spent on the repair or improvement of such buildings would contribute to the maintenance and continued existence of that entity and should, therefore, in my view, be regarded as being for the benefit of the Convent, considered as such an entity, although the actual mode of application is specified and limited. It is true that, in Stewart v Green 5 Ir R Eq 471, at p 477, Lord O’Hagan LC said:
“In this case, on the contrary, whatever may be our supposition as to the testator’s object, his bounty is bestowed only ‘for the use and benefit’ of the community, and there is not a word in the will to cast upon them the obligation of using it in charity, or for the advantage of any but themselves.”
In the view, however, which he and his fellow-member of the Court of Chancery Appeals took in that case, the community in question was not itself a valid object of charity. I do not think he intended to suggest that a gift to an institution or organisation, which was itself an object of charity, would not be a charitable gift if it could be applied to the material advantage of the institution or organisation. The question in this case is whether the community of nuns constituting the convent at Blackrock, Co Dublin, is a charitable organisation.
This community consists of Roman Catholic nuns and belongs to what is known as the Order of Discalced Carmelite nuns. While there are a number of convents of the Order in Ireland, each convent is independent of and unattached to any other convent. Each convent, however, is subject to the rule of the Father-General of the Discalced Carmelite friars or, in certain cases, to that of the local Ordinary or Bishop. Each convent is limited in numbers to 20 or 21 members. The existence of the ladies thus associated together is, by the rule of the Order, a strictly cloistered or secluded one. They are engaged solely in a life of contemplation and prayer, living in strict enclosure in the convent, having contact with outside persons only when strictly necessary as prescribed by the relevant constitutions, and engaging in no outside activities of any kind. Each convent must have a church attached which is not accessible by the nuns but is accessible by the priest his assistants and such people from the locality as wish to assist. In this church, Mass is celebrated every day at which the public can assist. There is also a daily choral service at which the public can assist. The members of the community assist at the Mass or recite the choral service in a choir which communicates with the church by means of a grating but to which non-members of the convent have not access. The members and the number of members of the community will, of course, vary from time to time.
The purpose of the life of these Carmelite nuns is summarised by the following statement taken from the Prologue to the Constitutions of the Discalced Friars of the Order: “Two vocations in their due order have been divinely ordained. The more important aim of our life shall be the love and contemplation of divine things and the secondary aim the apostolate, particularly all that pertains to our neighbour’s salvation.”
For the purposes of this case, there was exhibited and admitted in evidence, an affidavit sworn for the purposes of the case of Gilmour v Coats [1948] 1 Ch 340 in England (referred to later) by His Eminence Cardinal Griffin, Roman Catholic Archbishop of Westminster.
In that affidavit, the Cardinal Archbishop dealt fully with the life of the Carmelite nuns and with the teaching of the Roman Catholic Church as to their activities. He distinguished first between the active and the contemplative orders and deposed that, as to the active orders, it is the teaching of the Church that the fruitfulness of their exterior works for their neighbour – at any rate so far as his eternal interests are concerned – depends on the degree to which they devote themselves to the contemplative life and its penances. He stated the purpose of a Catholic woman in joining a contemplative order – as indeed any other religious order – as being to promote in herself more fully and perfectly the love of God, expressed in as perfect a submission to His will as she can achieve with the aid of His grace, to promote that love in her neighbour and to make reparation to God for the sins of mankind; and she joins a contemplative order for that purpose because it is the teaching of the Church that the religious life is, as it is called, the state of perfection.
He then referred to the passage from the Prologue to the Constitutions of the Discalced Friars, already quoted, and continued:
“It is evident from this and from what I have previously stated that though the discalced nuns do not engage in exterior works for the benefit of their neighbour, it would be an incomplete statement of their purpose to say that it is merely the working out of their own salvation by religious exercises and self-denial.”
There then follow three paragraphs in the affidavit of the Cardinal Archbishop which I think it would be improper to attempt to paraphrase or curtail, they are paras 5, 6 and 7 which read as follows:
“5.This becomes the more apparent when one considers the teaching of the Church on the effect of the fulfilment of their purpose on the advancement of religion among those outside their convents and the benefit which they thereby confer on their neighbour. It is the teaching of the Church that none of its members leads a life which is isolated from the lives of his fellow members, except in so far as they associate for the purpose of corporate worship, but that on the contrary all Christians as members and cells of Christ’s mystical body are one with Christ and one with another. The present Pope applying the words of St. Paul – ‘As in one body we have many members, but all members have not the same office; so we being many are one body in Christ; and every one members of another,’ reiterates in his Encyclical Letter ‘Mystici Corporis Christi’ the teaching of the Church that the ministries of Christ’s body, the Church, include not only persons in sacred orders but also all those who have embraced the evangelical counsels and lead either an active life among men, or a hidden life in the cloister, or else contrive to combine the two, according to the institution to which they belong – thus portraying the poverty, obedience and virginity of the Redeemer; that though Christ bestowed upon His Church the boundless treasures of the redemption without any co-operation on her part yet in the distribution of that treasure. He not only shares the work of sanctification with the Church but wills it to arise in a certain manner out of her labour; that the salvation of many souls depends on the prayers and voluntary mortifications offered for that intention by the members of the mystical body of Jesus Christ; and that though public prayer excels any other, nevertheless all prayers, even those said in a most private way, have their dignity and their efficacy and are also of great benefit to the whole mystical body, for in that body there can be no good and virtuous deed performed by individual members which does not through the Communion of Saints redound also to the welfare of all.
6.Further it is the teaching of the Church that no person can enter into eternal life in heaven unless when he dies he possesses that life which is additional to and above his natural life, and is for this reason called supernatural life, and which raises his natural powers of mind and will and enables him to know, love and serve God in this life and to know and love Him in heaven. It is also the teaching of the Church that this life and the (supernatural) assistance or graces, which enable a person to obtain and preserve and develop it and to recover it if it is lost by the rejection of God, are His free gifts which he can give without the intervention of any man, but which – as the present Pope points out in the passage in his Encyclical Letter to which I have referred – He has ordained that He will give in response to the prayers and mortifications of the members of the Church for their neighbours both inside and outside the church. It is in view of these truths that the daily prayers and mortifications, which the Carmelite nuns, like other religious, offer for their neighbour both inside and outside the Church, advance religion and are an inestimable spiritual benefit to their neighbour, bringing to those who are ignorant of them or have rejected them the gifts of God and the graces to obtain them and bringing to those who possess His gifts the graces of perseverance and progress in the supernatural life – in a word supplying for those who through ignorance or lack of zeal or the preoccupations of life in the world cannot or will not help themselves. Moreover, it is the teaching of the Church that the prayers and mortifications of the contemplative and practising religious and especially efficacious in view of the high degree of union with God which results from the following of their vocation.
7.Lastly, it is an undoubted fact that the practice of the religious life of the Carmelite nuns and other religious is a source of great edification to other Catholics and indeed in innumerable cases to non-Catholics – leading them to a higher estimation of spiritual things and to a greater striving after their own spiritual perfection, and that the knowledge that there are men and women who are prepared to sacrifice all that the worldly in man holds dear in order to attain a great love of God and union with Him inculcates in them a greater estimation of the value and importance of the things which are eternal than they would have if they had not these examples before them.”
The question whether a contemplative order could be a charitable institution was decided in 1871 in the well-known case of Cocks v Manners LR 12 Eq 574 by Sir John Wickens V-C and this case was long taken to have settled the law. That case was concerned with bequests to two religious institutions, one of them a Dominican Convent, the other a Convent of Sisters of Charity. The former belonged to a contemplative order, the latter to an active order; and the decision was that the former was not a charitable institution, while the latter was. The Vice-Chancellor’s view of the latter institution was (p 584) that it was “in point of law, a voluntary association for the purposes of teaching the ignorant and nursing the sick”; and, he went on to say, that he could not distinguish it in this respect from any of the numerous voluntary associations established for the purpose of performing charitable functions. As to the former institution – the Dominican Convent – he said (at p 585):
“A voluntary association of women for the purpose of working out their own salvation by religious exercises and self-denial seems to me to have none of the requisites of a charitable institution, whether the word ‘charitable’ is used in its popular sense or in its legal sense. It is said, in some of the cases, that religious purposes are charitable, but that can only be true as to religious services tending directly or indirectly towards the instruction or edification of the public; an annuity to an individual, so long as he spent his time in retirement and constant devotion, would not be charitable, nor would a gift to ten persons, so long as they lived together in retirement and performed acts of devotion, be charitable.”
This is an often-quoted passage. It has usually been taken, and I take it, that the Vice-Chancellor used the expression, “religious services,” in a wide sense rather than in a narrow liturgical one – if, indeed, he did not merely mean to repeat the expression, “religious purposes.”
In Maguire v Attorney-General [1943] IR 238, Gavan Duffy J, as he then was, took the view that the decision of Sir John Wickens was (p.248) “a judgment on fact, and the essential fact determined was the fact that the England of 1871 was not edified by sequestered piety, unaccompanied by civic works of mercy.” This might, perhaps, be criticised as too narrow a view of Cocks v Manners LR 12 Eq 574; but, whatever the evidenciary defects of that case, these were remedied in the later and recent case of Gilmour v Coats [1949] AC 426 in which the House of Lords affirmed the judgment of the Court of Appeal [1948] Ch 340, and approved of Cocks v Manners LR 12 Eq 574, notwithstanding the evidence of His Eminence Cardinal Griffin, already referred to. The authority, accuracy or sincerity of this evidence was not questioned in any way. The case concerned a settlement made for the benefit of a convent belonging to the same Order as is in question here. The main grounds for rejecting the claim of the convent to be a charitable institution seem to have been that the element of public benefit is essential to render a purpose charitable in law and this applies equally to religious as to other charities; that the benefit of intercessory prayer to the public is not susceptible of legal proof and the Court can only act on such proof; and that, further, the element of edification by example is too vague and intangible to satisfy the test of public benefit.
The proposition that proof of public benefit in any objective sense is necessary to render a religious purpose charitable may be doubted as having been the law in this country, if it ever was, since O’Hanlon v Logue [1906] 1 IR 247. It is, perhaps, also a little inconsistent with the statement of Lord Reid in Gilmour v Coats [1949] AC 426, at p 458 that “the law of England has always shown favour to gifts for religious purposes. It does not now in this matter prefer one religion to another. It assumes that it is good for man to have and to practise a religion …” Assuming, however, the validity of the proposition, it is difficult to see why the public benefit inherent in the private celebration of the Roman Catholic Sacrifice of the Mass (as in O’Hanlon v Logue [1906] 1 IR 247) should be susceptible of legal proof while the public benefit of private prayer is not. O’Hanlon v Logue [1906] 1 IR 247 of course, was an Irish decision and the decision of Luxmoore J in In re Caus [1934] 1 Ch 162, which, in effect, applied the reasoning of O’Hanlon v Logue [1906] 1 IR 247 to an English bequest, was, logically enough, not approved in Gilmour v Coats [1949] AC 426, at p 458. Lord Simonds in the latter case (at p 447) having referred to In re Caus [1934] 1 Ch 162 and to O’Hanlon v Logue [1906] 1 IR 247 and also to Attorney-General v Hall [1897] 1 IR 246, went on to say: – “I am unable to accept the view, which at least in the Irish cases is clearly expressed, that in intercessory prayer and edification that public benefit which is the condition of legal charity is to be found.” The learned Law Lord here recognised, as did the other members of the House of Lords, and also the members of the Court of Appeal, a divergence between the law of the two countries. In this country, the provisions of Article 44 of the Constitution now deal with religion and it is implicit in the terms of the Article that adherence to and practice of any of the religions there recognised may be assumed to be of public benefit.
In Gilmour v Coats [1949] AC 426 Lord Reid said (at p 461) “there must be some limit to the kind of indirect instruction or edification which will constitute a public benefit.” Somewhat the same idea was earlier expressed in this country by Mr Justice Black in Munster and Leinster Bank v Attorney-General [1940] IR 19, at p 30, where he said:
“There are perhaps few forms of human activity, good in themselves, but solely designed to benefit individuals associated for the purpose of securing that benefit, which may not have some repercussions or consequential effects beneficial to some section of the general community; and unless a further and sweeping inroad is to be made on the rule against perpetuities, the line must be drawn somewhere, Cocks v Manners LR 12 Eq 574 has drawn it.”
The difficulty I feel about this view is on what basis or criterion, unless a purely arbitrary one, the line can be drawn at any particular point. The evidence must be accepted, if indeed evidence is needed, that, while the members of both types of orders are concerned with their own personal sanctification they are also concerned with that of others. It is only in the means adopted to achieve their purposes that there is any difference, the active orders adding to their other activities the external work of mercy. Yet, Mr Justice Black can hardly have meant to confine the scope of the beneficial effects to which he referred to merely material benefits to others and not to include what may be termed spiritual or religious benefits.
The question with which I am concerned was decided by Gavan Duffy P in Maguire v Attorney-General [1943] IR 238, already referred to. The order with which he was there concerned – the Order of Marie Reparatrice, generally called the Order of Perpetual Adoration – was an enclosed, contemplative order similar in constitution and rule of life to the order in the present case. The ground on which the learned President upheld the gift as a good charitable one was that it was a gift for a pious use which was a good charitable gift at common law in pre-Reformation days in England, and, therefore, also in Ireland from the time that all statutory bars against the application of the common law to gifts for pious uses had disappeared, that is, from at least the date of the Irish Toleration Act of 1793. In this view, he was expressly following one of what he called “the dual grounds” on which Palles CB and FitzGibbon LJ had justified their decision in O’Hanlon v Logue [1906] 1 IR 247. He stated that he rested his judgment upon the common law and that he had no occasion to look beyond it for the resultant good to the common weal. This observation referred to the second ground in O’Hanlon v Logue [1906] 1 IR 247, viz, that the gift imported the element of public benefit. Earlier, however, in the same judgment he had said (at p 248): “I shall waste no time in establishing the proposition of fact that the cloister is a powerful source of general edification in this country.” From this, it may be inferred that, if he had thought it necessary to decide the point, he would have found no difficulty in holding that this element of edification, so far from being incapable of proof, could and should be assumed to exist in this country.
This decision is not binding on me; but, of course, I should follow it unless there were reasons which I regarded as compelling for not doing so. One suggested reason, which on examination proves to be groundless, is the circumstance alluded to in Gilmour v Coats [1949] AC 426 that there is an apparent conflict of opinion on the point in the Irish decisions. The conflict is only apparent. The other decisions are that of Black J in Munster and Leinster Bank v Attorney-General [1940] IR 19, already mentioned, and that of Overend J in McNamee v Mansfield [1945] IR 13. The former case was concerned with an entirely different point and the observation of Mr Justice Black already quoted, as to Cocks v Manners LR 12 Eq 574, was obiter. The latter case was concerned with two gifts, one to a monastery of Carmelite friars, the other to a convent of Carmelite nuns. It was clear that the friars engaged in activities some of which were not strictly charitable or religious in character. The learned Judge said:
“It may well be that many, and probably the majority, of the purposes of the Order are religious in character, but I have also no doubt that there are several purposes which are not charitable in the legal sense and that it would, therefore, be possible for the donee, without breach of trust, to apply the gift for such non-charitable purposes. Accordingly, the gift to the Prior cannot be upheld as a charitable gift, and the same applies to the gift to the Superioress.”
The judgment was not a reserved one and Mr Justice Overend did not, apparently, advert to the circumstance that the Convent of Carmelite nuns was an enclosed one, not engaging in any activities of a non-religious character, and, therefore, in a different position from that of the friars. He founded his decision on that of the Supreme Court in In re Byrne, Deceased; Shaw v Attorney-General and Others [1935] IR 782, as to a gift to the Jesuit Order, and the correctness of his decision, so far as it applied to the Carmelite friars, could hardly be questioned. Inasmuch as he did not consider the position of the Carmelite nuns independently of that of the friars or as one to which any different considerations might apply, I do not think the case should be considered as authoritative on the point with which I am concerned. Maguire v Attorney-General [1943] IR 238, therefore, stands as the only clear-cut decision here on the point.
While, as I have said, I am not bound by it, I prefer the reasoning, in it to that of Gilmour v Coats [1949] AC 426 and, therefore, propose to follow and apply it. That decision itself was based on the earlier decisions of the former Court of Appeal in this country. These decisions are binding on me and, while the exact point was not decided, the reasoning in them is compelling and the result of them sufficiently close to the present case to make them coercive. These cases are Attorney-General v Hall [1897] 2 IR 426 and O’Hanlon v Logue [1906] 1 IR 247 the former concerned with the celebration of Mass in public, the latter with the celebration of Mass whether in public or private. O’Hanlon v Logue [1906] 1 IR 247 overruled the earlier decision of the Court of Exchequer in Attorney-General v Delaney IR 10 CL 104 as to the celebration of Mass in private not being a charitable purpose. In both the cases mentioned, the Court of Appeal adopted and applied the subjective test which seems to have been rejected in Gilmour v Coats [1949] AC 426 so far as a gift for a religious purpose is concerned. Thus, in the former case, FitzGibbon LJ said (at p 449):
“It is enough to say that where, according to the religious belief of a body of persons recognised as part of the public, an act of religion done by a public minister of their Church, is for the spiritual advantage of them all, a bequest for the benefit of a minister of religion to perform that act must be deemed charitable.”
This subjective approach was carried further and elaborated in O’Hanlon v Logue [1906] 1 IR 247. It constituted the second of the “dual grounds” to which Gavan Duffy P referred. The effect of Attorney-General v Hall [1897] 2 IR 426 and O’Hanlon v Logue (1906) 1 IR 247 on this aspect of the matter could not be better expressed than in the summary by Lord O’Brien LCJ in Attorney-General v Becher [1910] 2 IR 251, at p 260. Having first referred to the judgment of Palles CB in O’Hanlon v Logue [1906] 1 IR 247 he continued:
“Lord Justice FitzGibbon, who took a very great interest in the question under deliberation, also delivered an attractive judgment, but his view may be made the more clear by reference to the judgment of Lord Justice Holmes, who, by placing in apposition – in juxtaposition – the view of the Lord Chief Baron, in Delaney’s Case IR 10 CL 104, which, with his own concurrence, was overruled, and the view of the Lord Justice FitzGibbon in Hall’s Case [1897] 2 IR 426, brought out the test, the guiding principle of the decisions with great distinctness. Lord Justice Holmes in his judgment (see p 284 of the report) pursues the test, the guiding principle, from the words, ‘On what ground is it argued that the bequest in The Attorney-General v Hall [1897] 2 IR 426 is charitable, while that in The Attorney General v Delaney IR 10 CL 104, is not’,”
down to the end of his judgment. All this is very relevant, but I will content myself with giving one excerpt from it. After, as I said, placing in apposition the view of the Lord Chief Baron in The Attorney-General v Delaney IR 10 CL 104, and that of Lord Justice FitzGibbon in The Attorney-General v Hall [1897] 2 IR 426, the Lord Justice proceeds as follows:
“It will be observed that the difference in the propositions laid down in the two passages I have quoted is, that in one it is stated that the Court cannot derive the element of public benefit from the efficacy, spiritual or temporal, which, according to the faith of the testator, the religious act may possess, but must ascertain the existence of such benefit by independent investigation; while in the second passage the belief of the testator and of the Church to which he belongs is made the only test.”
Lord O’Brien then went on:
“This last test in the so-called second passage is that which the Lord Justice, in common with the other members of the Court, ultimately adopted as the true test, and which I believe to be and adopt as the true test.”
He had earlier quoted the following passage from Walker LC in O’Hanlon v Logue [1906] 1 IR 247 (at pp 259, 260):
“There are some legal propositions germane to the case for which it would be mere pedantry to cite authority … (c) that a gift for the advancement of ‘religion’ is a charitable gift; and that in applying this principle, the Court does not enter into an inquiry as to the truth or soundness of any religious doctrine, provided it be not contrary to morals, or contain nothing contrary to law … Whether the subject of the gift be religious or for an educational purpose, the Court does not set up its own opinion. It is enough that it is not illegal, or contrary to public policy, or opposed to the settled principles of morality.”
The approach to the matter, and these qualifications on the full acceptance of any belief of a testator, were both combined and expressed in the following words by Gibson J in Attorney-General v Becher [1910] 2 IR 251, at p 265, and which, I think, represent the correct view:
“The decision in O’Hanlon v Logue [1906] 1 IR 247, where the question related solely to Christian worship, is based on the position that religious charities, like ordinary charities, depend for their validity solely on the subjective creed and intention of the donor, subject to conditions that the objects contemplated are not immoral or contrary to law, and are intended to be for the benefit of others; such conditions being of an objective character.”
While Cocks v Manners LR 12 Eq 574 is referred to once in argument in both Attorney-General v Hall [1897] 2 IR 426 and O’Hanlon v Logue [1906] 1 IR 247, once in the judgments in Attorney-General v Hall [1897] 2 IR 426, and not at all in the judgments in O’Hanlon v Logue [1906] 1 IR 247, the result of that case is clearly inconsistent with the principles established in these two Irish cases.
If formal proof were necessary, the affidavit of the Cardinal Archbishop, already referred to, makes it abundantly clear that the religious activities and way of life of the Carmelite nuns are believed to have a special efficacy, to be a strong force in the advancement of religion, and to be of spiritual benefit to a large section of the public.
On the “dual grounds,” therefore, I hold the bequest in question to be a good charitable gift. I only think it necessary to make two further observations.
On reading the judgments in Gilmour v Coats [1949] AC 426, one gets the impression that many of the judges who considered the question in that case were unduly preoccupied with what I might call the problem of the hermit. Their approach was that, unless a gift to a hermit could be charitable, a gift to a voluntary association of hermits could not be charitable. This was an echo of the similar proposition already quoted from Wickens V-C in Cocks v Manners LR 12 Eq 574. If it is a sound argument, it should equally exclude the numerous associations, engaged in charitable but non-religious works, which have been held to be proper objects of charity. No conclusive answer may be capable of being given to the problem, but there may be elements of distinction in the considerations of the reasonable likelihood of continuity of activities, of the great efficacy of cooperative activity, of the scope of the benefit intended by the testator, and of the circumstances that, as Lord Simonds himself pointed out in Gilmour v Coats [1949] AC 426, “the law of charity … has been built up not logically but empirically.” If a line must be drawn, wherever it should be drawn, the Convent of the Discalced Carmelite nuns will, in my view, be on the charitable side of it.
The other observation concerns the often-expressed idea that the legal conception of charity does not coincide with the popular one. While this is, of course, true, it is at the same time comparatively rare that an institution generally regarded as charitable by the public is not so regarded in law. In the present case, I have no doubt of the emphatic and unhesitating affirmative answer that would be given by any reasonable layman, of whatever persuasion, to the question whether this convent was a charitable institution. A close examination of a rather formidable series of judicial pronouncements has led to the same conclusion.
O’hUadhaigh v Attorney General
Unreported 5th February 1979)
Gannon J: When Gobnait Ni Bhruadair died on the 16th of January 1955, she was over ninety years of age living in Ireland having come from England to live here in or about the year 1906. She took up residence at Castlecove in Co Kerry where she established a hospital, a co-operative store and shop and she became actively concerned and involved in the social, cultural and political activities of the people. She was a daughter of the Earl of Midleton and was born in England on the 17th of December 1861 and was given the name Albinia Lucy Brodrick. When she came to Ireland she adopted, and was known by, the name of Gobnait Ni Bhruadair. She was unmarried and at the time of her death her domicile was Irish.
By her will dated the 17th of October 1940 she appointed three executors whom she constituted the trustees of the trusts created in her will, and by a codicil dated the 15th February 1947 she reduced the number of trustees to two. Both of these have since died and the plaintiffs are presently her executors and trustees in whom her entire property is now vested in accordance with law. The plaintiffs now come before the Court on the true construction of the terms of the will in relation to the trusts imposed by the will on the residuary estate. They feel in doubt as to whether the terms of the will create more than one trust fund, and whether charitable or not. They find difficulty in understanding the directions of the will in relation to times of payments and persons for whose benefit payments are to be made. The first defendant is sued as protector of charities and in his capacity to represent this State. The second defendant, the present Earl of Midleton is a party appointed by Court Order dated the 24th of May 1978 to represent the interests of the next of kin of the testatrix who would be interested in the distribution of her residuary estate in the event of the failure of the dispositions thereof in her will. The third defendant, by the same Order of the Court dated the 24th of May 1978 is added as a defendant to represent all persons who might expect to benefit in the event that, and are competent to argue that, the residuary estate is vested by way of a valid charitable gift.
The will and one codicil are made in the Irish language and Probate thereof was granted to the executors named therein on the 7th of October 1955. On the 2nd of December 1955 Probate of the will and codicil in the terms of an English translation were granted to the executors forth of the Principal Probate Registry of the High Court of Justice in England. The terms of the codicil are not of significance to the matters now before the Court.
The following extract is the portion of the will in relation to which all the parties, and in particular the plaintiffs as trustees, require as to its true construction the ruling of the Court.
“AGUS ORDUIGHIM agus do-bheirim de chomhacht dom’ sheiceadóiribh agus dom’ fheithmheóiribh nó dá bhfurmhór fuighleach m’eastáit do chur chun tairbhe na Polbachta ar an gcaoi is fearr dár leó AGUS ORDUIGHIM fós dom’ sheiceadóiribh agus dom’ fheithmeóiribh no dá bhfurmhór éantráth is dóigh leó gur gábhadh é “The Trust Fund” i, fuighleach m’eastáit do dhíol agus toradh an reaca d’úsáid i néanchuid amháin no ina gcodaibh ar an gcaoi is fearr dár leó a raghaidh se chun tairbhe do lucht na Poblachta le linn na huaire de réir cospóirí lucht na Poblachta de réir mar do bhíodh i mbliadhnaibh 1919 go 1921 …”
The property invested in the trustees upon which such trusts are imposed is set out by the testatrix in the manner appearing from the following extract from the English translation adopted by the Probate Office in England and concludes with the translation of the Irish extract quoted above.
“I order my trustees or trustee to put the residue of such money in their or his own name in such securities as are lawful for trustees and I empower them to change or alter if they wish those securities and to buy others that are herein authorised and I declare that the securities authorised herein to be bought or retained which shall come into possession of my trustees or trustee which are called hereafter “The Trust Fund” and the annual income coming thereout shall come to my trustees to pay an annuity of forty pounds (£40) to Cáit wife of Pádraig Ó Breanndáin as long as she lives commencing from the day of my death and to be paid in equal instalments namely a month after my death and every month thereafter free from income tax on her own personal receipt and I Direct and Empower my executors and trustees or the majority of them to apply ‘the residue of my estate for the benefit of the Republic’ in the best way in their opinion And I also Direct and Empower my executors and trustees or the majority of them at any time they think it is necessary to sell The Trust Fund namely the residue of my estate and to use the proceeds of the sale in one share or in shares for ‘the benefit of the Republicans of the time according to the objects of the Republicans as they were in the years 1919 to 1921 …’”
The function of this Court is to declare what are the testamentary intentions of the testatrix as expressed by her in her will. It is not the function of the court to extract from the will by supposed construction such intentions of the testatrix as might reasonably be expected of a person of her character interests and experiences. In stating, by way of construction, the expressed intentions of the testatrix as stated in the will it may be necessary to explain in different terminology the meanings ascribed to such expressions as are used in the will. For the purposes of construing the will the Court is bound by the Order of the Probate Court as to what comprises the will. But in this instance where the will is given in a language different from that being used by the Court of construction, this Court must express in its own terms what meaning it attributes to the actual language used in the will to express the intentions of the testatrix. In this respect it is not necessary that this Court follows precisely the wording of the translation of the will adopted in England for the Grant of Probate there. Fortunately that translation was made by the member of the Irish Bar best qualified both as a lawyer and an Irish linguist at that time to do so.
Mr Gaffney, in submitting the case for the trustees summarised briefly and conveniently the matters upon which questions have been posed in the Special Summons by which these proceedings were initiated. He indicated a doubt as to whether or not the entire estate of the testatrix is affected by the trust directions, and suggested there might be an inconsistency between the gift to the Republic and the gift to the republicans in one or more shares. He drew attention to the difficulties also of identifying with sufficient certainty the objects of the bounty designated as “the Republic” and the class indicated as “Republicans of the time according to the objects of the Republicans as they were in the years 1919 to 1921” and the question of whether these are charitable objects in favour of which a cy près scheme might be settled in the event of uncertainty of the class or purpose of the gifts. He referred to evidence offered in the affidavits and exhibits in relation to the testatrix which might be indicative of her intentions, but referred also to the judgment of Mr Justice Kingsmill Moore in Re Julian Deceased [1950] IR 57. I did not have regard to any such evidence other than that contained in the official copy Minutes of the first session of Dáil Éireann on the 21st of January 1919 containing a declaration of the objects of the First Dail of the Republic State as it was prior to 1922 and also to the statement of the facts relevant to domicile. Mr Gaffney adverted also to the possibility of failure of the disposition in trust either for uncertainty of objects or infringement of the rule against perpetuities and the consequent requirement of directions for administration of the estate as on intestacy. Apart from the extract from the Minutes at pages 21 to 23 of proceedings on the 21st of January 1919, and first day of the first Parliament of the Republic of Ireland 1919 to 1921, published as the official record by the Stationery Office at Dublin, the statement relative to domicile, and some matters of historical fact of which I must take judicial notice I have not had regard to any extrinsic evidence purporting to indicate the probable or supposed intentions of the testatrix. The following are the matters of historical fact to which I refer namely:
1. The first Parliament, to the proceedings of which these Minutes relate, was a Parliament convened of deputies from the thirty-two counties of Ireland; 2. from 1922 to 1937 the Republic of Ireland was an independent State comprised of twenty-six counties established under a Constitution adopted in 1922 and was known in the Irish language as Saorstát Éireann; 3. in 1937 the people of these twenty-six counties adopted a Constitution for the Republic of Ireland under the name Eire in the Irish language; 4. the final Declaration of the independent republican status of this twenty-six county State and of dissociation from Great Britain and the British Commonwealth was made in 1948. These are facts which, unless the contrary should appear from the will, I assume were known to the testatrix who made her will on the 17th of October 1940 and died on the 16th of January 1955 without having altered it, otherwise than by codicil of the 15th of February 1947.
In the portion of the will with which I am primarily concerned, there are a few matters of grammatical analysis which I have observed which may be of some significance in helping to extract the stated intentions of the testatrix. In the first place, she commences her directions to her executors and trustees with the words “Agus orduighim & do bheirim chomhacht” but in the next instruction she omitted the words “agus do bheirim chomhacht” although the contrary might be inferred from the translation used in the English Probate. In this context I think there is sound reason for the suggestion that the word “fós” as used in the second direction has a conjunctive force and might be translated as “further” rather than as “also”. The submission is that the evident intention of the testatrix is that the second direction is an extension or development of the first and not simply an additional seemingly independent one. Secondly, her direction to her trustees in relation to the residue of her estate where first given is as follows: “Do chur chun tairbhe na Poblachta ar an gcaoi is fearr dár leó”. The second direction in relation to the residue is expressed thus: “D’úsáid … ar an gcaoi is fearr leó a raghaidh se chun tairbhe etc.”. In the latter direction, there appears to be an element of choice given to the trustees which is not evident from the translation used for the English Grant and there appears also to be a variation in the terms used to signify the nature of the choice. In relation to the choice of time for selling (sic) the residue of her estate she uses the expression “éantráth is dóigh leó gur gábhadh é.” Where the testatrix selects different forms of terminology to convey the same idea it may be helpful in the search for clarity of intention to recognise distinctions of meaning where distinctions of language are selected by the testatrix. In the first of these choices, the idea is clearly “in the best way in their opinion” or alternatively “in the manner which is best according to them.” In relation to the choice of time “as they think” or “in their opinion” both convey the same idea as the Irish expressions. But in the last phrase “an gcaoi is fearr leó a raghaidh sé” seems significantly different from the two previous expressions of choice. The literal translation would seem to be “in the manner they prefer it should go to the benefit” etc.
In relation to the final phrase used in this particular portion of the will namely: “de réir cuspóirí lucht na Poblachta de réir mar do bhíodh i mhliadhnaibh 1919 go 1921”, it is agreed by all parties that the authentic and only proper source of information as to such matters is in Clar Oibre Poblacanaighe, or, as given in English, the “Democratic Programme”, declared at the meeting of the first Dail of the thirty-two county Republic and that this is and must be what the testatrix intended. I accept this submission as being correct in the circumstances and well founded in law. But this declaration of “the objects of the Republicans as they were in the years 1919 to 1921” or their aims, aspirations or objectives as in those years is expressed in the Irish language and given in the Minutes with an English translation. If I were to have recourse to such correspondence of Irish and English terminology as a guide to the terms used by the testatrix in her will I would find that the word “Phobalacht” in the only instance where used in these Minutes is there translated in English as “Commonwealth”. I would find also that the word “Republic” is consistently used in the English translation as the equivalent of “Saorstát” in the seven places where that word is used in the Irish text.
It has been submitted by Mr Connolly in the course of his persuasive arguments that the expression “lucht na Poblachta” should be construed as meaning “the people of Ireland”. Had this been the meaning intended by the testatrix I think she would more probably have used the word “muintear” for its more general or wider meaning intended than the word “lucht”. I consider the correct interpretation of the word “lucht” as indicating a designation or selection of a group, class or body or persons from among or apart from others rather than a generality of persons. The translation used for the English Grant of Probate clearly conveys the correct meaning by the use of the word “Republicans”. This final phrase “according to the objects of the Republicans as they were in the year 1919 to 1921” is a key phrase by which, to use an expression adopted from Mr Connolly’s argument, the testatrix provides her own dictionary. It has a qualifying effect but, to the trustees, it is not clear whether it provides a definition of the republicans of the time for whose benefit the proceeds of sale are to be used or determines the manner in which such proceeds of sale are to be used. Mr Lynch for the Attorney General argues that this phrase qualifies only the manner in which the proceeds of sale are to be used and that the phrase is referable in the adverbial sense to the use only. Both Mr Connolly, and Miss Carroll in her clearly stated cogent arguments, submit that the clause serves both purposes and is, as Miss Carroll put it “both adjectival and adverbial in its effect”. These submissions accord with my interpretation of the true expressed intention of the testatrix. But, Mr Connolly goes further that I can accept as demonstrable or logical in submitting that this final clause qualifies the word “Republic” in the first part of the residuary gift so that it might be construed as making the people of the thirty-two counties of Ireland the objects of the trusts of the residuary estate. On the contrary, it seems to me more logical and probable that if that significant interpretation of the words “tairbhe na Poblachta” was intended by the testatrix she would have been as careful in her method of expression at that point as she was in the later clause. Mr Lynch for the Attorney General in his thoroughly prepared argument disclaims any benefit to the State which now is, and in 1955 was, the only “Republic” and supports Mr Connolly’s contention that the testatrix intended to denote the thirty-two counties in using the phrase “tairbhe na Poblachta”. But it seems to me the testatrix was conscious of and affected by the distinction between factual circumstances as she knew them to be at the time of making her will (and consequently the time it later became effective) and the circumstances as they had been to her knowledge in the years 1919 to 1921. From the terms of the will and the choice of expression by the testatrix I have no doubt that the clause “fuighleach n’eastáit do chur chun tairbhe na Poblachta ar an gcaoi is fearr dár léo” means to apply the residue of her estate in the best way in the opinion of her trustees for the benefit of the Republic of Ireland as it was at the time of her death. But she proceeded to qualify this vague general direction by the immediately following direction by confining the range of benefit only to those who, at the time of distribution by the trustees, are republicans according to the aims and objects as they were in 1919 to 1921 of republicans. The phrase “le linn na huaire” in the context can only mean at the time when the trustees make their determination to distribute and cannot be construed as the time when the will takes effect namely 16th of January 1955 nor when it was made on the 17th of October 1940. I accept as correct the submissions of all defendants that there is but a single gift of the residue of the estate entrusted to the trustees for the benefit of the objects and in the manner directed. The manner in which the testatrix introduced her directions with the words firstly “agus orduighim & do bheirim chomacht … dom fheithmheóiribh”, and secondly “agus orduighim fós … dom fheithmheóiribh”, using the word “fós” with the meaning and effect I suggested earlier bear out this construction, and the translation used for the English Grant of Probate is also consistent with this construction.
The directions as to the objects and manner of benefit are as set out in the portion of the will commencing “agus orduighim fós” and concluding “1919 to 1921”. This portion contains the directions that the determination by the trustees in the choice given to them for the benefit to the Republic of Ireland is limited to conferring benefit only on those who being within the Republic are republicans having the same aims or objects as had those republicans who subscribed to or adopted the declaration of the Democratic Programme for a thirty-two county independent State. If the concluding phrase “according to the objects of the Republicans as they were in 1919 to 1921” has an adjectival qualification, as I understand to be the expressed intention of the testatrix, not all inhabitants or citizens of the Republic can share the benefit of the gift. If this phrase has an adverbial effect, as I think is the intention expressed by the testatrix, the use to which the fund is to be put must also be determined in accordance with the aims or objects set out in the declaration of the Democratic Programme in the first session of the first Dail of the thirty-two county Republic on the 21st of January 1919. The directions of the testatrix confer on her trustees a choice as to when to distribute the fund, qualified only in respect of a necessity apparent to them, with an absolute discretion as to whether by a single payment or by a number of different payments. These directions also confer on the trustees an absolute discretion as to the manner, in accordance with the aims or objects set out in the Democratic Programme of the first Dail, in which the payment or payments in distribution of the residuary estate is or are to be made to the designated republicans.
The questions which now present themselves for determination are whether or not the distribution by the testatrix of her residuary estate to such objects of her bounty and in such manner and at such time or times is valid and effective. For the Attorney General it has been argued by Mr Lynch and Miss Laffoy that unless the gift be a valid charitable trust it must fail for want of certainty or the objects to benefit, and because it is not charitable, as they contend, it must fail as a gift which may not vest within the time prescribed under the rule against perpetuities. In addition to adopting the arguments advanced for the Attorney General, Miss Carroll for the next of kin contends that whether the gift be charitable or not, the gift cannot become vested until the exercise by the trustees of the discretionary powers conferred on them and that, as the exercise of such powers may be deterred beyond the time limited by the rule against perpetuities, the gift is void and the residuary estate must devolve as on an intestacy. Mr Connolly proffered the decision of the Court of Appeal in England In re Smith: Public Trustee v Smith [1932] 1 Ch 153 as the most helpful authority in support of his contention that the gift is charitable within the legal meaning of that word, and submitted that the gift vested immediately on the death of the annuitant in the survivor of those republicans of 1919 to 1921 then living subject to such selection as the trustees might make.
Mr Connolly chose to rely on the authority of Re Smith as it conveniently refers to and examines a number of earlier authorities from which guidance may be obtained as to when and of what nature a gift may be charitable in the legal sense. He relied on it to support his submission that the testatrix created a trust of her residuary estate for the benefit of the people of the Republic and that such a gift in such general terms is impliedly for public purposes for a particular class and is charitable in the legal sense because in the performance of the trust the funds can and should be distributed or applied to charitable purposes in such sense.
The following is an extract from the opinion of Lord Macnaghten in the House of Lords decision in Commissioners for Income Tax v Pemsel [1891] AC 531 at page 583:
“‘Charity’ in its legal sense comprises four principal divisions: trusts for relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community not falling under any of the preceding heads. The trusts last referred to are not any the less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed, every charity that deserves the name must do either directly or indirectly”.
This is an abbreviated summary of the charitable uses referred to in the preamble to the English statute of 1601 entitled “An Act to redress the Mis-employment of Lands, Goods, and Stocks of Money heretofore given to Charitable Uses” 43 Eliz c 4, and of those referred to in the corresponding Irish Statute of Charitable Uses (Ireland) Act 1634 10 Car I Sess 3 c 1. A correspondence of these two statutes is given by Lord St. Leonards the Lord Chancellor of Ireland in Incorporated Society v Richards 1 D & War 298 at 324. Many examples of charities falling within this fourth category given by Lord Macnaghten’s summary are discussed in Smith’s case with helpful extracts in the judgments therein from the opinions of Lord Shelbourne and Lord Cairns in Goodman v Mayor of Saltash 7 App Cas 633 and of Lord Cave in Attorney General v National Provincial and Union Bank of England [1924] AC 262. But it seems to me that in their judgments in Smith’s case the Master of the Rolls and Lords Justices appear to direct a great deal of their attention to questions of how and by whom the trusts should be carried out in their endeavour to construe the intentions of the testator. I note that the House of Lords in Williams v Inland Revenue Commissioners [1947] AC 447 and the English Court of Appeal in Strakosch deceased, Temperly v The Attorney General [1949] 1 Ch 529 took pains to try to explain the decision in Smith’s case without expressly approving or disapproving of that decision. In William’s Case [1947] AC 447 the House of Lords held that a trust established with the objects of promoting Welsh interests in London by social intercourse; discussing all questions affecting Welsh interests; fostering the study of the Welsh language by lectures on Welsh history, literature, music and art; maintaining a library of literature in the Welsh language or relating to Wales; providing a meeting place for the benefit of Welsh people in London as a centre to promote the moral, social, spiritual and educational welfare of Welsh people was not a charitable trust. In the course of his opinion with which all the Lords present concurred, Lord Simonds said at page 455 of the Report:
“My Lords, there are, I think, two propositions which must ever be borne in mind in any case in which the question is whether a trust is charitable. The first is that it is still the general law that a trust is not charitable and entitled to the privileges which charity confers, unless it is within the spirit and intendment of the preamble to the Statute of Elizabeth 43 Eliz C 4. which is expressly preserved by s 13 s. 3 of the Mortmain and Charitable Uses Act 1888”.
In Ireland, the relevant statute is 10 Car I Sess 3 c 1 and the 1888 Act referred to does not apply. Lord Simonds goes on:
“The second is that the classification of charity in its legal sense into four principal divisions by Lord Macnaghten in Income Tax Commissioners v Pemsel must always be read subject to the qualifications appearing in the judgment of Lindley LJ in Re Macduff [1896] 2 Ch 451 at 466: Now Sir Samuel Romilly did not mean, and I am certain Lord Macnaghten did not mean, to say that every object of public general utility must necessarily be a charity. Some may be, and some may not be.”
Lord Simonds proceeds to quote from the opinion of Lord Cave LC in Attorney General v National Provincial and Union Bank of England [1924] AC 262 at 265. One further quotation from the opinion of Lord Simonds in William’s Case is apposite. At page 457 of the report in [1947] AC he says:
“It is not expressly stated in the preamble to the statute, but it was established in the Court of Chancery, and, so far as I am aware, the principle has been consistently maintained, that a trust, in order to be charitable, must be of a public character. It must not be merely for the benefit of particular private individuals: if it is, it will not be in law a charity though the benefit taken by those individuals is of the very character stated in the preamble.”
Lord Simonds then goes on to quote the following passage from the opinion of Lord Wrenbury in Verge v Somerville [1924] AC 496 at 499:
“To ascertain whether a gift constitutes a valid charitable trust so as to escape being void on the ground of perpetuity, a first inquiry must be whether it is public – whether it is for the benefit of the community or of an appreciably important class of the community. The inhabitants of a parish or town, or any particular class of such inhabitants, may for instance, be the objects of such a gift, but private individuals, or a fluctuating body of private individuals cannot.”
In his judgment in Munster & Leinster Bank v Attorney General [1940] IR 19 Mr Justice Black upon reviewing a number of English authorities seems to consider that a limitation of place is acceptable to define a class of the public, but that voluntary association is not. Like the judgments in Smith’s case, the judgment of Mr Justice Black in the Munster & Leinster Bank case provides an extensive collection of earlier authorities most of which are English. But I do not think that voluntary association would necessarily be unacceptable as a definition of a class of the public in Ireland. Neither do I think a distinction between the intention of the testatrix and the motives of the testatrix pertinent, as Mr Justice Black seems to think.
The primary and fundamental inquiry is to ascertain what are the intentions of the testatrix as expressed by her, and whether or not they are to invest the ownership of her property after her death in a charity which is recognised as such in the legal sense. It is this inquiry which explains the use of the expression “the subjective test” as adopted in Irish Courts as against “the objective test” seemingly applied in England. In significant respects the law on charities in England and Ireland has diverged and Cocks v Manners LR 12 Eq 574 is no longer an acceptable authority in Ireland. (See Re Cranston: Webb v Oldfield [1898] 1 IR 431; O’Hanlon v Logue [1906] 1 IR 260; Attorney General v Becher [1910] IR 260; Maguire deceased: Maguire v Attorney General [1943] IR 238; Sheridan deceased: Bank of Ireland v Attorney General & Ors [1957] IR 257). Notwithstanding such divergence in relation to the law of charity in Ireland and England the opinions expressed in the House of Lords in Inland Revenue Commissioners v Baddeley [1955] AC 572 and the advice of the Judicial Committee of the Privy Council in Davies v Perpetual Trustee [1959] AC 439 are of considerable assistance on the aspect of identification of a class of the public.
In case of doubt the evidence of the expressed intention of the testatrix may be tested by consideration of the nature of the object of her bounty and her belief in regard to it. It may be tested also by the certainty or otherwise of her means, as expressed by her, of identifying the object of her bounty. If her specification of the object be by classification the vagueness of her definition may leave it impossible to discern an intention within the spirit and intendment required for a “legal charity”. If such intention be discerned the vagueness of identification of the class, provided it be a class, will not defeat the intention. (See Miley v Attorney General & Ors [1918] 1 IR 455, Byrne deceased: Shaw v Attorney General & Ors [1935] IR 782; Munster & Leinster Bank v Attorney General & Ors [1940] IR 19; Keogh deceased: McNamee v Mansfield [1945] IR 13; Scott Bayley deceased: Brown v Gregg [1945] IR 224; Re Meehan deceased: Tobin v Cohalan [1960] IR 82.) The facts that the purposes of a gift may be expressed compositely or alternatively, by words which are conjunctive or disjunctive, may be taken as evidence from which the expressed intention of the testatrix may be ascertained, but do not of themselves determine the nature, whether charitable or not, of the gift. Likewise, whether the choice of objects or of purposes be made by the testatrix or delegated to another are significant only as matters of evidence of the intention expressed of the testatrix and not as evidence of the charitable or non-charitable nature of the gift.
A further test as to the intentions of the testatrix may be found in the consideration of the time for distribution or vesting in possession of the residuary estate. A vesting which may be deferred by and for the purpose of perpetual regular continuous payments may be consistent with and indicative of a charitable gift in the legal sense. By a vagueness in her express directions for vesting or payment pursuant to a power of sale which could permit a period too remote to intervene might indicate such indifference as would negative a charitable intention. The difficulties of selection of persons to benefit and the ascertainment of the class from which the selection is to be made when conferred by the testatrix on her trustees, should be present to the mind of the testatrix when creating a trust, even though such difficulties could be overcome if the trust be a good charity in law. (See Parker deceased: Kilroy v Parker [1966] IR 309). But the fact of such difficulties arising on the construction of the will may be a significant aspect of the evidence of the expressed intentions of the testatrix as to whether or not the trust is a charitable trust.
Bearing in mind these tests I turn again to the will of the testatrix to consider again what she has said in the portion under examination but in the context of the provisions preceding it which I have quoted from the translation used for the English Grant of Probate. My summary of her expressed intentions as I construe what she has said in her will and leading up to this part of the will is as follows. After providing that legacies be paid free of estate duty and legacy duty and that the annuity be paid free of estate duty, legacy duty and income tax she invested all her property not previously disposed of by will or codicil in her trustees. She gave them an absolute discretion as to whether or not to sell and to convert into cash property in specie, and in their absolute discretion to postpone sale, save, however, that the power of sale of reversionary interests before coming into possession may be exercised only for a reason which the trustees think special; and she declared “any real estate I have is to be accounted as personalty”. Out of the cash realised on the sale of real and personal estate she directed her trustees to pay her funeral and testamentary expenses and debts, with special provision for mortgage debts, and payment of legacies and the annuity out of her personal estate and then to create a fund invested in securities which she called “The Trust Fund”. Having provided for payment of the annuity of £40 by monthly payments out of this fund she directed her trustees to apply the rest of her property including this fund for the benefit of the Republic of Ireland in the way they think best and to sell her invested securities whenever they think necessary, and then to use all in one or more payments in the manner her trustees would prefer it to be applied for the benefit of the republicans at that time who have the aims or objectives of republicans of 1919 to 1921, and the payments to be applied in a manner consistent with such aims or objectives of the republicans from 1919 to 1921.
It seems significant to me that the testatrix gives no indication to her trustees as to what might be the occasion for, or standard of, necessity for the realisation of the securities, some of which at least must be retained to provide income for payment of the annuity for the life of the annuitant. Had she been more specific in her definition of the persons or class of persons she intended her trustees should benefit and as to the manner of conferring benefit on them she might have been able to give some indication of what kind of necessity she had in mind. It seems to me she had no clear idea of how the republicans she considered her trustees would wish to benefit could be recognised, because there appears to be no binding factor or limitation by organisation, by conduct or activity, by location, by regulation or by any unifying factor as a class of the public other than adoption of political thoughts and ideas. Even if she presented her trustees with the Democratic Programme of the Dáil of January 1919 as their directions for the spending of her money she would not thereby demonstrate to her trustees any charitable trust or purpose within the spirit or intendment of the legal standards of charity. It is unnecessary to set out here the terms of the Democratic Programme which is essentially a statement of political objectives. I have no reason to believe that these are any different from those of this State save in respect of the area of jurisdiction. In so far as any of them correspond with charitable objects the testatrix gives no indication to her trustees that she wishes charitable purposes only to be chosen by them.
Taking an overall view of the expressed directions of the testatrix with such varied and vague discretions and latitude of apparent duty imposed on her trustees I am satisfied there is no charitable intention nor charitable gift in the legal sense in her will. The fact that her trustees for the time being themselves might have the means and opportunity of satisfying their own charitable purposes or intentions does not assist in construing the expressed intentions of the testatrix. The trustees are entitled under the will to defer beyond the time limited as lawful under the rule against perpetuities exercising their power of sale, selection and distribution and consequently the gift of the residuary estate is void for remoteness. (Re Kingham [1897] 1 IR 170; Re Fossitt’s Estate [1934] IR 504).
The questions posed in the Special Summons therefore will be answered in accordance with the foregoing ruling on the construction of the will on the basis that there is no gift to charity and the disposition of the residuary estate is void for remoteness.
Re The Trust of the Worth Library
[1995] 2 IR 301
Keane J:
(I) Introduction
Doctor Steevens’ Hospital, one of the oldest of the great voluntary hospitals of Dublin, closed its doors for the last time early in 1988. The body responsible for its administration, “The Governors and Guardians of the Hospital founded by Dr Richard Steevens,” (hereafter “the Governors”) were incorporated by an Act of the Irish Parliament in 1729 (3 Geo II, c XXIII). (Although the name of the founder is spelt “Stephens” in the relevant volume of the statutes, I shall use the more familiar spelling in this judgment).
When the hospital closed, the Governors had to decide what was to become of an asset of inestimable value which was also in their care. This was the collection of some 4,500 books known as “The Worth Library” which had been kept in glass fronted bookcases in a room in the hospital specially designed for their reception from the early part of the 18th century. Since the Governors were proposing to sell the hospital building once the various services and equipment which it had housed were accommodated elsewhere, they had to come to a decision as to the future custody of the library. As one would expect, the Governors were concerned to ensure that the library would be preserved as an integral collection in some Irish setting and that the body responsible for its future custody would have the necessary skills, including particularly expertise in the conservation of rare books.
Having consulted with experts in the field, the Governors decided that the best course was to transfer the library to the first named plaintiffs (hereafter “Trinity College”). The Governors, who were the trustees of the library, appointed Trinity College as trustees in their place and sought the advice of the Commissioners of Charitable Donations and Bequests for Ireland (hereafter “the Commissioners”) in relation to the trust and in particular as to whether the Commissioners would settle a cy-près scheme appointing Trinity College as trustees of the library and making provision for the removal of the library to Trinity College and for the care and custody of the books and the management and control of the library. The Commissioners advised the Governors on the 1st March 1988 that they should seek counsel’s opinion as to whether the Commissioners had jurisdiction under the Charities Acts 1961 and 1973, to settle such a cy-près scheme. Counsel advised that such a scheme would have to be framed by the High Court, if the value of the library exceeded £25,000, which it clearly did. The library had, in the meantime, in the interests of security and with the approval of the Commissioners, been transferred to Trinity College on a temporary basis.
The second named defendants (hereafter “the Health Board”) bought the hospital in 1988 for use as its headquarters. They were of the view that the Worth Library should be returned to its original home in the hospital. Trinity College in the meantime had applied to the Commissioners to be appointed as trustees in place of the Governors and on the 26th July 1988, the Commissioners ruled that they proposed to make that appointment but directed that notice of the proposed appointment should be given in the prescribed manner. The Health Board and Mr JB Prendiville, who had been a member of the medical staff of the hospital for many years, furnished objections in writing to the appointment of Trinity College as trustees. The solicitors for Trinity College informed the Attorney General, whose consent was necessary under s 51(1) of the Charities Act 1961 to an application to the High Court for the framing of a cy-près scheme, of these developments. The Attorney General took the view that there should be a second trustee of the library who should be an appropriately qualified person with no connection with Trinity College and the second named plaintiff who is the Director of the National Library (hereafter “Dr Donlon”) agreed to act in that capacity. On the 5th February 1991, the Commissioners made an order appointing Trinity College and the director for the time being of the National Library to be trustees in place of the existing trustees of the Worth Library and vesting the property in the new trustees upon the applicable trusts. The Health Board applied to the High Court pursuant to s 43 of the 1961 Act for an order annulling this order. This application was refused by Denham J in a reserved judgment delivered on the 17th December 1991.
In the meantime, the Attorney General had given his consent on the 31st May 1991 to the application by Trinity College to the High Court for an order framing a cy-près scheme. The special summons was issued on the 19th July 1991, and on the 20th January 1992, Costello J made an order joining Dr Donlon as plaintiff and the Health Board as defendants. When the special summons came on for hearing before me, a number of affidavits had been filed on behalf of Trinity College and the Health Board, exhibiting reports and other documents relating to the issues raised by the application and some of the deponents were cross-examined on their affidavits. In addition, I heard lengthy submissions from counsel and, during the Whit vacation, visited both Dr Steevens’ Hospital and the library of Trinity College in the presence of the parties and their legal representatives in order to see for myself the contents of the library, the room in the hospital in which they had hitherto been kept and the area of the library in Trinity College in which it was proposed by the plaintiffs that they should be kept in future. The draft cy-près scheme submitted by the plaintiffs is set out in Appendix I. The scheme proposed by the Health Board is set out in Appendix II. It was now necessary to consider the factual background in considerably more detail.
(II) Dr Worth and Dr Steevens’ Hospital
Dr Edward Worth was born in Dublin in 1678 and was educated at Merton College, Oxford. After leaving Oxford without apparently taking a degree, he studied medicine abroad, entering the University of Leiden in the Low Countries in 1699 and graduating as a doctor in medicine at Utrecht. On his return to Dublin, he was admitted to the degree of MD by Trinity College and added a doctorate from Oxford to his Dublin degree. He seems to have been an acquaintance of Swift, to whom some lines lampooning him are attributed. Edward Worth was one of the original Governors of Doctor Steevens’ Hospital named in the Act of 3 Geo II to which I have already referred. Doctor Richard Steevens, after whom the hospital is named, was born in England, but brought up in Athlone and educated at Trinity College where he obtained his medical degree. Under the terms of his will, his twin sister Grizel Steevens (usually known as Madam Steevens) became entitled on his death in 1710 to a life interest in his estate. The will provided that after the death of Madam Steevens the trustees of the will should provide:
“a proper place or building within the City of Dublin for an hospital for maintaining and curing from time to time such sick and wounded persons whose distempers and wounds are curable …”
Madam Steevens was anxious that the project of building such a hospital which was close to her brother’s heart should not be postponed until after her own death. She decided to advance money out of her own resources for the beginning of the work and to appoint a number of prominent Dublin citizens as trustees in order to get the project underway. Many years were to pass, however, before the hopes of Dr Steevens and his sister were realised. It was not until the 23rd July 1733 that the hospital opened in the building designed by Thomas Burgh, the chief engineer and surveyor general of Ireland who was also responsible for the design of the library of Trinity College. Another celebrated architect also had an association with the hospital: Sir Edward Lovett Pearce, who succeeded Burgh as surveyor general and designed the Irish Parliament House, now the Bank of Ireland, became a governor of the hospital on the 19th April 1732.
These details are taken from The History of Doctor Steevens’ Hospital, Dublin, 1720-1920, by Dr TPC Kirkpatrick, who was for many years on the staff of the hospital and did much research into its history, the fruit of which was this learned work published in 1924. The hospital, as it was prior to its acquisition by the Health Board, is thus described by Dr Maurice Craig in his well-known work Dublin 1660-1860:
“As a building, Steevens’ may be called the last kick of the seventeenth century. If Burgh’s authorship were not attested beyond any possible doubt, we should have no hesitation in calling it the work of a sensitive carpenter or mason inspired by the neighbouring Royal Hospital. It reproduces on a smaller scale (about 115 x 95 feet) the courtyard-and-piazza plan of Robinson’s building. All the detail is cruder and less sophisticated, making its effect more by ‘quaintness’ than by strictly architectural means. Though the general disposition of the east front is accomplished enough, the main doorway with its elliptical arch and segmented pediment cutting through a first floor window is saved only by the charm of a slight awkwardness and by the delightful wrought iron which abounds here and elsewhere in the hospital. The very agreeable little clock-tower with its conoidal hat was not added until 1735-6 and may not be Burgh’s work. He was certainly not responsible for the semi-mansard roofs of all but the east range, nor for the squinch arches which cross the angles of the internal court and add even more quaintness to the final effect.
It is a great pity that Steevens’ Lane is too narrow to show the hospital to advantage and a still greater pity that the ugly red brick nurses’ home was inserted in the late nineteenth century between it and Kingsbridge Station, entirely destroying the scale of the ensemble.
The original chapel placed by Burgh in the south east corner was not completed until 1761 and in 1909 was obliterated in favour of a modern chapel on a different site. The chief treasure of the hospital is the library, bequeathed by Edward Worth, a trustee and governor who died in 1733 leaving some four thousand odd volumes, twenty one of which are incunabula . These remain in the original board room with contemporary fittings. This interior was probably carried out by Pearce.”
Dr Craig’s somewhat qualified enthusiasm for the purely architectural merits of the hospital should be seen in perspective: he is comparing it, inevitably not to its advantage, with its great neighbour in Kilmainham. He considers it sufficiently important, however, to be included in what he calls the “six minor elevations of Dublin” which include, among other buildings, the King’s Inns and the Law Society building in Blackhall Place.
When the hospital was acquired by the Health Board in 1988, it was elaborately restored and refurbished under the supervision of Arthur Gibney & Associates with Dr Craig acting as historical architectural consultant. It was acknowledged by those who gave evidence that the work of restoration has been carried out with great skill and sensitivity. The red brick nurses’ home was demolished and a landscaped esplanade provided which links the hospital to the quays. As a result, a magnificent view is afforded both from the immediate area of Heuston Station and from the other side of the river of the beautiful facade of the hospital.
The hospital is included in list 1 in the development plan for the County Borough of Dublin, a list of buildings the preservation of which it is an objective of the planning authority to secure because of their artistic, architectural or historical interest. In addition, under the heading “Interior fixtures and fittings to be preserved”, the following entry appears in respect of the hospital:
“First floor/front room (Worth Library)
Timber panelling, doors, door-cases, windows, window-cases; cornice, marble chimney piece, original bookcases.”
In a letter to the Health Board dated the 13th July 1988, the planning officer, Mr EG McCarron, said:
“It is understood that the books from this library have been transferred to Trinity College for safe keeping. The relationship of the books to the book shelves and to the setting itself are all of importance and I will be obliged if you would clarify if it is the intention of the Eastern Health Board to return the books to their long established location in the building when occupation is resumed. It would be regrettable if the relationship between the books, their shelving, their cabinets and setting were to be ‘broken up’ as it were rather than being retained as one integral collection.”
Edward Worth did not live to see the hospital, of which he was one of the first Governors, begin its long history of service to the people of Dublin. He died shortly before it received its first patients and was buried in St Patrick’s Cathedral. He had made his will dated the 11th November 1723, to which he executed a codicil on the 5th November 1729. It is one of the trusts created by that will which this Court is now called on to examine.
There was exhibited with the affidavit of Dr William Watts, the former Provost of Trinity College, which grounded the special summons, a typewritten copy of an extract from the will which contained the provision relating to the Worth Library. I was told at the outset of the case that this was the only documentary evidence of Dr Worth’s testamentary dispositions which was available. Mrs Muriel McCarthy, the curator of Marsh’s Library, who also acted in a voluntary capacity as librarian of the Worth Library for a number of years and was intimately acquainted with its contents and history, confirmed that this was the only copy of the will or any extract from it of which she was aware. It seemed desirable that some further inquiries should be made, since manifestly if the entire will were available it might cast further light on the testator’s intentions and I suggested that enquiries might be made of the bursar of Merton College, as it appeared from Dr Kirkpatrick’s history that Dr Worth had also remembered his Oxford alma mater on a princely scale in his will. That college, unfortunately, had only copies of the provisions relating to their own benefactions, but a further investigation of the papers of Dr Kirkpatrick, which he had given to Trinity College, brought to light a full handwritten copy of the will. Further research by Mrs McCarthy (to whom the court is indebted) in the national archive in Bishop Street in the abstracts of wills proved in the Prerogative Court prepared by Sir William Betham brought to light the following entry:
“306: Worth Edward of the City of Dub Dr of Physick – dated 11 Nov 1723 – d21 March 1732 – cousin Mrs Anne Cross – kinswoman Mrs Dorothea Worth sister to Mr Tynte, James Tynte – kinsman Edward Worth Esq.”
The portions of the will dealing with Dr Steevens’ Hospital should, I think, be set out in full. They are as follows:
“In the name of God Amen. I Edward Worth of the City of Dublin Doctor of Physick being of sound mind and considering the uncertainty of human life am desirous to settle my worldly affairs, and doe therefore make this my last will and testament and in the first place, and above all I most humbly recommend my soul to Almighty God trusting, and firmly believing that thro the merits and mediation of our blessed saviour the Lord Jesus Christ it will receive a blessed immortality, and be reunited at the last day to my body, which I will shall be decently buried in such manner as my executor hereafter named shall think fitting, I give and bequeath unto His Grace William, Archbishop of Dublin, and the other trustees for the time being, appointed for the ordering, settling or disposeing of the money given by Mrs Grisell Steevens and Doctor Richard Steevens the sum of one thousand pounds ster to be by them laid out and disposed of towards the promoting the charitable work and design of the said Doctor Richard Steevens, and Mrs Grisell Steevens, of erecting and endowing an hospital for the reception and cure of poor sick people in such manner as the said trustees for the time being shall judge will best contribute to the end and design of the said intended charity, which said sum of one thousand pounds I will shall be paid within six months after my decease.
I further give and bequeath unto the said trustees all my books (except the English books in the glass case of my present study hereafter otherwise to be devised and likewise those which did belong to my late father, and are now at Rathfarnham) the same to be carefully preserved and kept in some convenient room of the said hospital when it shall be built, for the use, benefit and behoof of the physician, chaplain and surgeon for the time being of the said hospital, who I will shall have each of them a key to the said room to resort thither when and as often as they please.
But I will, direct and desire that none of the said books may be at any time be removed from, or taken out of the room appointed for the custody of them, and to the end that they may be better preserved I will and direct that three catalogues may be made of them, written fair in three large well bound books, one whereof I will shall be kept chained in the said library of the said hospital, another of them shall be kept in the library belonging the college of Dublin, and the other shall be kept in the public library at St Sepulchres, and it is my request and earnest desire that the Governors, or trustees for the care of the said intended hospital will be pleased once in every year on the Monday after Christmas Day or on such other day as they shall think more proper to visit the said library and cause the physician, chaplain and surgeon of the said hospital then to attend them, and to examine the said books by the said catalogue, and if any of the said books shall be wanting or defaced to enquire how it came to pass, and to redress any miscarriage or abuse which may have happened relating to the said books in the best manner they can.
And because I would not have the said gift of the books to be a charge on the said hospital, and thereby deprive the poor of anything which will otherwise goe to their relief I will that part of the books hereinbefore excepted (viz those belonging to my late father, and now at Rathfarnham) shall be sold, and the money arising thereby shall be paid to the said trustees or Governors of the said hospital to defray the charge and expense why they may be at in making the said room fit and convenient for the receiving the said books and in causing the said books to be digested and put in order, and making the three catalogues aforesaid, and in providing chains for the said books, or for so many of them as it shall be found convenient to chain.
Provided nevertheless, and my will is, that if my executor do and shall within six months after my decease pay unto the said Governors or trustees of the said hospital the sum of one hundred pounds ster to be by them laid out in the manner following, that is to say, to some deserving learned person of the College of Dublin to be named by my executor who shall digest, and place the said books in order in the said room appointed for them, and shall make a correct and compleat catalogue of them, the sum of thirty pounds, to some able clerk, who shall transcribe the said catalogue into three large books fairly written and ingrosed, and who shall provide the said three books the sum of twenty pounds, and all the rest, and residue of the said one hundred pounds I will shall and may be laid out by the said trustees or Governors in fitting and preparing the room with shelves and other conveniences for the reception of the said books and the chains as aforesaid (then the said books now at Rathfarnham shall be and remain to the sole use and behoof of my said executor) …
I give unto Clotilda Lady Eustace all my English books in the glass case in my present study together with the case and scrutavi on which they stand … I give unto each of my dearest kinsmen James Tynte, and Sylvester Crosse Esqrs the sum of one hundred pounds ster for mourning and unto Mr Tynte I give likewise my three marble bustos or heads (together with the oak cases in which they stand) hoping nevertheless that he will think them (after his death) a proper ornament for the room in which my books shall be placed in the hospital intended by Doctor Richard and Mrs Grisell Steevens.
All my lands, tenements and hereditaments, and all the rest of my goods, chattles, and all my estate real and personal whatsoever which I have, or am rightfully entitled unto, charged nevertheless with my debts, legacies, and funeral expenses, I give, devise and bequeath unto my best beloved kinsman and namesake Edward Worth Esq his heirs, executors, administrators and assigns, and I do appoint the said Edward Worth Esq executor of this my will, which I hereby declare to be my last will and testament and doe revoke and annul all wills at any time heretofore made by me.
In witness whereof I have hereunto set my hand and seal and published the same as my last will and testament this 11 November 1723.
E Worth (loco vigilli)
Signed sealed and published by the above named Edward Worth in the presence of us who have subscribed our names hereunto in the presence of the said testator – Geo Rochfort – Matt Fforde Junr.”
The codicil dated the 5th November 1729 contains the following provision:
“And whereas I have by my will given to Clotilda Lady Eustace the English books which were in my glass case and said glass case and scriptore whereon the said glass case stands, least any doubt should arise whether anything but the said English books, glass case, and scriptore shall pass to the said Clotilda Lady Eustace by the said bequest, and particularly by reason of an + c in the said will, I will and declare that the said Clotilda Lady Eustace shall have by the said bequest only the said English books, glass case and scriptore, and that all other things which are, or shall be in them, or either of them doe and shall belong to my executors to the uses and purposes of my will, and of this codicil and lest it should be a doubt or question whether any books which I have given a commission or commissions to buy for me abroad shall go to ye trustees for the hospital intended by the late Doctor Steevens to whom I have by my will devised all my books not therein excepted, I doe will and declare that all such books as are or shall be bought for me by virtue of any order or commission from me tho not in my custody at my death shall be, and be deemed and taken as part of my books devised by my said will to the said trustees.
And I do order and direct my executors to pay for the same, and all the contingent charges and expenses consequent to, and attending thereon until the time they shall be delivered to my executor in Dublin.”
It appears from Dr Kirkpatrick’s history that the sum of one hundred pounds was paid to the Governors and that the books referred to were not sold and became the property of the executor, Edward Worth. They were subsequently in 1742 bequeathed to the library of Trinity College. However, Mr Tynte did not justify the confidence which Dr Worth had reposed in him: the three marble busts were never placed in the library in the hospital.
The room as it was in 1924 is described by Dr Kirkpatrick as follows:
“The room in which the library is housed measures 28 by 22 feet, and is lighted by three windows, which face towards the east. The fireplace over which hangs the portrait of Dr Worth, is on the north side, and there are two doors, one on the west side in the south-west corner, and the other on the north side in the north-east corner. Round this room are arranged presses with glass doors. The six presses on the west and south sides respectively measure eight by four feet. On the east side, between the windows, there are two presses of similar size, and, in addition, one two-thirds and four one-third of this size. On the north side there is one press of the full size, one two-thirds, and one one-third of this size. In the panelling above each of the larger presses are small presses with wooden doors measuring two feet by two feet seven inches, thus making in all fifty one presses for the books. The glazed presses are lettered from A to X, and the shelves of each are numbered from below upwards by brass-headed nails in the front edge of each shelf. The smaller presses above take their lettering from those on which they rest, and with them their shelf numbering is continuous. Thus we have “A”, “A first part above”, “A second part above”, and so on. The books on each shelf are numbered from the opening of the door towards the hinge. On the fly-leaf of each book is written the press letter, the shelf number, and the number of the book on the shelf and in the catalogue there is a similar entry opposite each book. It is thus quite simple to find any book in the library once its place in the catalogue has been found. If for example one wants the De Consolatione Philosophiae, 1487, one finds in the catalogue under the author’s name, Boethius, the book with the place G4, 21. The book will be found in press G on the fourth shelf from the bottom, and is the twenty first book on that shelf counting from the opening of the press. The arrangement of the books in the upper presses has had to be changed, as the hanging of the pictures has prevented ready access to them.
The books are grouped roughly according to subjects. Thus on the west side we have medicine, surgery, chemistry, botany and pure and applied mathematics. On the south side are collected history, topography, antiquities and books of reference. On the east side we have the ancient classics, and on the north theology and some modern literature. It must be understood that this grouping is very general, but, on the whole it is excellent.”
Having gone on to discuss the books themselves in some detail, Dr Kirkpatrick concludes his description of the room as follows:
“Above the door in the south-west corner is the following legend, probably the composition of Richard Helsham, Swift’s physician:
Aegris sauciisque sanandis,
Ricdus Steevens MD reditus,
Grisda soror superstes aedes hasce,
Dono dedere.
Edvardus Worth archiater
Bibliothecam quam vides
Eruditam, nitidam, perpolitam.”
A modern translation is as follows:
“To cure the ill and enfeebled, Richard Steevens, MD made a gift of this building to his surviving sister Grizel.
Edward Worth, Head Physician, gave the library that you see, erudite, neat, polished.”
The library today is much as Dr Kirkpatrick described it, save that all the books and paintings have been removed.
Dr Kirkpatrick gives the following description of the catalogue:
“The library catalogue consists of two folio volumes measuring eighteen and three quarters by thirteen inches, and bound in rough calf. The entries, made under the head of authors, in alphabetical order, are written in a clear, large hand on the recto of each leaf, with three columns at the fore-edge for the ‘Clas. Tab. Num.’, or the press, shelf and number on the shelf. The copies of the catalogue preserved in Trinity College and in Marsh’s Library are each in one volume and do not contain the shelf numbers of the books.”
During the hearing, the original catalogue and the copy in Trinity College were produced in court by Dr Bernard Meenan, the Keeper of Rare Books in Trinity College.
I shall consider the contents of the library in more detail at a later stage: it is now time to resume the history of the library. It was nearly lost forever on the eve of the Act of Union when the Lord Chancellor, the Earl of Clare, presented a petition to the House of Lords on behalf of the Governors of the hospital:
“praying leave to dispose of, by public sale, a valuable library bequeathed to the charity by Dr Worth….. the testator had provided in his will, that the library should neither be removed nor disposed of; but if left as it is, from the ruinous state of the hospital’s roof, and of the room where the books are deposited, … they must be destroyed in the falling of the roof, should a thorough repairing of the house not soon take place.”
The Bishop of Cashel was far from happy with the proposal to sell the books: he
“expressed himself decidedly adverse to a violation of the testator’s bequest, which he conceived to particularly provide for the preservation of the books in the hospital, and therefore he should not hesitate as the library room was in a falling state to remove them to a safer place, although the testator literally desired that they should not be disturbed from one and the same room. The governor stated that the funds could not be spared for the purposes of the charity, as there was no specific provision for appropriating any part to repairing the house; but surely if the house was about, agreeably to that statement, to tumble in ruins, he should think that in such case the repairs in question were necessary to the permanency of the charity itself, and therefore His Grace saw a necessity of an immediate application of a portion of the funds to repair the hospital, which portion might afterwards, very properly, revert to the original purpose of its appropriation.”
The Earl of Altamont is recorded as agreeing:
“with his Grace of Cashel, in the impropriety of infringing the testator’s bequest respecting the books and suggested the expediency of addressing His Excellency the Lord Lieutenant to supply the expenses of the hospital’s repairs at the public charge.”
The report in the Freeman’s Journal for the 29th May 1801, which was furnished to me by counsel for Trinity College during the course of the hearing, concludes:
“this suggestion seemed to meet the wishes of their Lordships, and the motion for compliance with the prayer of the Governors of the hospital, about leave to dispose of the library, was accordingly withdrawn – Adjourned.”
For the sake of completeness, I should add that, while there is a full account of the circumstances in which the petition was presented in Dr Kirkpatrick’s history, he was unaware of its ultimate fate. It appears by his history (at p 176) that the financial problems of the Governors were eased when in 1803 the commissioners of the Royal Infirmary asked for the empty wards in Steevens’ Hospital to be made available to the troops of the Dublin garrison, who were urgently in need of additional accommodation, and made some financial contribution to the hospital in return. Further petitions were also presented to parliament, and ultimately a petition, and a grant as a result of it, became an annual feature of its history.
The library remained undisturbed until the books were removed to Trinity College following the closure of the hospital in 1988. The room was regularly used for meetings of the board of the hospital. As I have already mentioned, Mrs McCarthy was appointed the honorary librarian by the board in 1973 and continued to work as the librarian in a voluntary capacity until the closure of the hospital. Mr Prendiville, whose association with the hospital goes back 50 years, first as a student, then as a trainee, and ultimately as a surgeon, became interested in the library in the early 1940s when be helped Dr Kirkpatrick with work he was doing on the books. He, Dr FS Burke and Professor Widdes all took part in the supervision of the library. During the summer of 1973, some members of the board suggested that the library might be sold to provide finances for the hospital. The board, however, rejected that proposal and it was at that stage agreed that Dr Victor Griffin, the Dean of St Patrick’s Cathedral, and Mr Prendiville should act as keepers of the library with the assistance of Mrs McCarthy as honorary librarian.
I have already summarised the events which took place after the hospital was closed in 1988. At the stage when the Health Board became interested in acquiring the hospital building as a headquarters, there were lengthy discussions and correspondence between the chief executive of the Health Board, Mr Kieran Hickey, the then Provost of Trinity College, Dr Watts, and his successor Dr Thomas Mitchell, as to the future of the Worth Library. Discussions were also in progress between these parties as to other matters in which Trinity College and the Health Board were jointly interested, principally relating to St James’s Hospital. It is not necessary for me to recount the history of those negotiations, which proved abortive, in any detail: it is sufficient to note that among the proposals discussed was the return of the Worth Library to the hospital and the establishment of a joint trusteeship of the library, the trustees to be Trinity College, the National Library and the Health Board.
The Health Board intend to dedicate a small room beside the Worth Library as a study room for scholars. They intend to have in another room nearby a small museum devoted to the history of the hospital and Irish medical history generally, including a display of early surgical and medical instruments preserved by the hospital and a reconstruction of a six bed surgical ward as it would have appeared in the hospital in the eighteenth century, utilising some original hospital artefacts from that date. Some of these items have been provided in the room already.
The contents of the library must next be considered. There have been very few additions to the 4,500 volumes originally bequeathed by Dr Worth. The only important accession was some 80 volumes of the public record series, published in pursuance of a resolution of the House of Commons dated the 22nd July 1800. These were presented to the hospital by the government and bear the following imprint on the verso of the title page: “This book is to be perpetually preserved in and for the use of Steevens’ Hospital, Dublin.”
According to Mrs McCarthy, the number of books devoted to medicine in the library amount to not more than about 200. In two articles, “An Eighteenth Century Dublin Bibliophile” (Irish Arts Review, Volume 3, Number 4, Winter 1986) and “Doctor Edward Worth’s Library in Doctor Steevens’ Hospital” (Journal of the Irish Colleges of Physicians and Surgeons, Volume 6, Number 4, April 1977), Mrs McCarthy refers in some detail to the medical books. The library, as Mrs McCarthy and the other scholars who have given evidence in this case made clear, was assembled by a person of cultivation and learning whose interests extended far beyond his own profession and who was, in particular, an enthusiastic bibliophile. The medical books are, however, of importance, since Dr Worth collected works relating to his profession which were both ancient and modern. They included the first important medical periodical, Claude Brunet’s Le Progres de la Medecine, printed in Paris in 1695. There are also medical books by English and continental doctors, including a treatise by William Harvey, who discovered the circulation of the blood. The great bulk of the library, however, consists of works on other subjects, particularly English antiquities, astronomy, botany, history, the ancient classics, mathematics, poetry, philosophy, natural history, science and travel.
One feature of the medical books which is of some relevance in the context of the present case is their relatively immaculate condition. Mrs McCarthy, in the article in the Irish Arts Review, to which I have already referred, contrasts their condition in this respect with the books in another doctor’s library with which she is familiar, ie, that of Dr Elias Bouhereau which is preserved in Marsh’s Library. Those books are extensively annotated: in contrast, she comments that Dr Worth’s medical books do not seem to have been used extensively at any time.
The intrinsic interest of the books is considerable: they include, as already noted, some incunabula, ie, books printed before 1500. But the most remarkable feature of the library is the state in which the books have been preserved since they were first placed in the room in Steevens’ Hospital more than 250 years ago. In an article on the library by Dr Catherine Swift, the keeper of early printed books in Trinity College, she compares the excitement of entering the Worth Library for the first time in 1988 to that which must have been experienced by the English archaeologists when they made their way into the tomb of Tutankhamen in 1922. Her description is worth quoting:
“We stood amazed at the jumble of bills and sale catalogues stuffed into the pigeon-holes of the desk as if the owner might at any moment return; the looming portraits of Grizel Steevens and her brother, founders of the hospital, and of Edward Worth, himself one of the first trustees, leaning out into the room on gilt chains, below the elaborate cornice: the magnificent oval board room table around which the trustees had held their deliberations; and, surrounding all, 24 exquisite ‘scumbled’ glass-fronted book cases with their panes of eighteenth century crownglass, holding rank upon rank of early printed books in the finest condition any of us had ever seen.
We had been told in advance that the books were very well preserved, but this was something quite out of the ordinary. The books seemed not to be ‘preserved’ at all, but as if newly bound – just as they might have appeared to the eyes of Dr Worth himself. The leather had the plumpness and gleam and the depth of colouring of the living skin. To those of us used to handling the desiccated leather bindings of the Long Room (in which the books were placed in 1733, the same year in which Dr Worth’s books were bequeathed to Dr Steevens’ Hospital) this was a revelation.
How had this happened that this collection of books had been so perfectly preserved over the centuries? Many of Dr Worth’s books had belonged to the great French book collectors – Jean Grolier, Jacques Auguste de Thou, Louis Henri Lomenie de Brienne, Jean Baptiste Colbert, the Baron de Longpierre, the Duc d’Orleans (brother of Louis XIII), to name but a few. They had used only the finest materials in binding their books: Turkey leather and later Morocco leather for example, which are much more durable than the calf in which most of the Long Room books are bound, and also the beautiful pale vellum used by many continental book collectors and tremendously hard wearing, as we can see from the Fagel Collection here at Trinity. Dr Worth was in the tradition of collectors who appreciated books for their beauty as well as for their texts. He not only bought books already distinguished by beautiful bindings but apparently commissioned fine bindings of his own from the Dublin binders of his day.
However, a major factor in the remarkable state of preservation of the books was undoubtedly the conditions prevailing in the room allocated to the collection in 1733 at Doctor Steevens’ Hospital. Whereas the south facing Long Room is flooded with sunlight which for some 250 years (until ultra violet filters and holland blinds were installed in the 1970s) had been steadily desiccating the backs of the books and converting the chemicals present in the vegetable tanned leather into destructive sulphuric acid, Dr Worth’s library was housed in a room which faced east, and where the fenestration was only a tiny fraction of that seen in every bay in the Long Room. The cool dim light was further enhanced by the shutters, closed when the room was not in use. (The shutters in the Long Room have long since ceased to function.) The books were also enclosed in glass-fronted book cases which kept them free from the dust and grime which we see everywhere on the Long Room books, and as the city became industrialised also protected them from the air borne pollutants which, joined with the action of sunlight, have been gradually reducing the calf of the Long Room books to the unhappy condition known as ‘red rot’. The glass-fronted bookcases in Dr Worth’s library also created a stable micro-climate where damaging fluctuations in temperature and humidity were minimised. How damaging such fluctuations can be is seen in the condition of some of Trinity College Library’s Fagel books, where the otherwise hard wearing vellum has, in alternating conditions of low and high relative humidity, contracted and split down-joints or spine.”
(III) The Library of Trinity College
The library of Trinity College, in which the books are now housed awaiting the decision of this Court as to their final destination, is, of course, one of the oldest and most famous in the western world, having been originally established in 1590. The college buildings, including the Burgh Library and its modern addition, designed by Koralek in the 1960s, are also among the architectural glories of Dublin and receive thousands of visitors from all over the world every year. The priceless treasures forming part of our cultural heritage in the Old Library include the Book of Kells. Trinity College intends that the physical condition of the books in the Worth Library collection will be the responsibility of the staff in the library’s conservation laboratory. In his affidavit of the 14th August 1991, Mr Peter Fox, the librarian, said:
“The laboratory will carry out a continuous monitoring programme on the books and effect such conservation work as is required. The laboratory has a staff of five under its director and is the only unit in Ireland with the technique, experience and resources requisite to evaluate and carry out conservation operations on the type of materials, namely paper and vellum, which comprise the collection.”
He added that the laboratory enjoys an international reputation for its expertise and attracts a constant flow of conservators for training. It has provided an internship programme with students from Colombia University, New York, for the past ten years. The director of the laboratory has also been invited to present papers at a number of international venues such as the John Paul Getty Museum in California, the National Gallery of Art in Sydney, the Library of Congress in Washington, the Instituto de Patalogio del Libro in Romeand a UNESCO meeting in Rome. He is also consulted for advice on conservation techniques for libraries both in this country and abroad.
It was originally intended by Trinity College that the main part of the collection would be housed in the book stacks area of “the Colonnades” a part of the old library, below the Long Room, which was being redeveloped as part of the celebrations marking the four hundredth anniversary of the university in 1992. It was intended that the main part of the library should be accommodated in the book stacks area while a representative selection from the library would be on permanent display to the public in the exhibition area. These plans were, however, reviewed when the Colonnades development was completed and it was decided to retain that area as a relatively open area of display and exhibition. In an affidavit of the 23rd February 1993, Mr Fox said that the books would now be housed in an area at the top of the stairs leading up from the area where the Book of Kells is on display and would occupy one entire side of an area at present devoted to the Fagel Library, while the books of that library would be housed on the opposite side. The bookcases in question were described by him as late eighteenth or early nineteenth century and would be enclosed with floor to ceiling glazed doors to ensure that the proper environmental control could be achieved. Mr Fox considered the area particularly suitable because it provided a space for background explanatory material about the collection and the library would be housed in context with the “greatest collection of early printed books in Ireland”.
(IV) The Evidence of Experts
It is now necessary to consider the contents of the affidavits filed and the reports or other documents exhibited therewith which I have not so far summarised. It will be obvious that scholarly opinion is deeply and passionately divided as to whether the books should be permanently housed in the library at Trinity College or whether they should be returned to Doctor Steevens’ Hospital. The various materials put before the court can, I think, be most conveniently dealt with if one segregates the areas of dispute between the experts into the following categories:
1. Security
There are two questions involved here: the possibility of accidental damage to the books, whether by careless handling or otherwise, and theft.
2. Fire
This heading is self explanatory.
3. Conservation
This raises the questions already touched on of temperature and humidity control, freedom from dust and other pollutants and similar environmental considerations. In addition, it raises the question of the monitoring of the contents on a regular basis by persons skilled in the preservation of rare books and manuscripts.
4. Accessibility, cataloguing and availability of reference books
This raises the question as to how accessible the library will be to scholars and other interested persons in either venue and the degree to which adequate cataloguing facilities and reference materials necessary for the proper study of the books will be available in the two venues.
5. Aesthetic considerations
The issue that divides the parties under this heading is as to whether a unique relationship exists between the books and their original resting place in Dr Steevens’ Hospital which will be needlessly destroyed by their being permanently housed in Trinity College or whether Trinity College, as a great centre of learning, is a more appropriate repository for the books than the administrative headquarters of a Health Board.
6. Funding
No question arose as to the capacity of Trinity College to provide any necessary funds. It was, however, suggested that the Health Board might have difficulties in this area.
1. Security
…
Both Mrs McCarthy and Dr Donlon in their affidavits expressed concern as to the vulnerability of the books to theft in the event of their being returned to the hospital building, particularly having regard to the number of members of the public and staff who would be present in the building from time to time and what they said was the stated objective of the Health Board to use part of the building as a heritage centre and museum which would attract large numbers of tourists. Mr Hickey in reply said that the security arrangements now in existence in Steevens’ Hospital were significantly better than in the days when it was a public hospital and accommodated the Worth Library for so lengthy a period unharmed. He said that the only access which would be permitted to the library, if it was restored to Steevens’ Hospital would be as permitted by the court. In particular, the public would not have a general right of access. There was also a difference of opinion between Mrs McCarthy and Dr Donlon on the one hand and Mr Breugelmans, a Dutch librarian, whose evidence will be referred to in more detail at a later stage, on the other as to the desirability in a library such as the Worth Library of permitting what was called ‘one to one’ supervision. Under the arrangements envisaged by the Health Board, the books in the library would be examined by experts in an adjoining room in the presence of the person acting as librarian. Dr Donlon, in particular, was unhappy about this arrangement and said that it imposed considerable strains on the person responsible for the supervision. She said that the form of supervision which would be available in Trinity College and which would involve the studying of the books in the presence of a number of members of staff and other readers was a more secure method of giving access to the books. Mr Breugelmans disagreed and said that, in his experience, the form of “one to one” supervision envisaged by the Health Board was preferable to what was envisaged in Trinity College.
2. Fire
Uncontradicted evidence was adduced that both the Old Library in Trinity College, and Dr Steevens’ Hospital have been equipped with modern,sophisticated fire detection and extinguishment systems.
…
3. Conservation
Mr Fox said that, in the case of Trinity College, as part of the environmental controls already in place, some of the windows in the Fagel Library had already been blocked up and the remainder would be. They would also be fitted with heat insulation as the corresponding ones on the ground floor below it had been. All remaining windows in that part of the Old Library would be fitted with ultra violet screens. He said that the placing of the Worth Library behind floor to ceiling glass doors would also prevent air borne pollutants from affecting the books. He said that the development of conservation knowledge is relatively recent and the poor condition of many of the books in the Long Room (and of some of the Fagel bindings) could be ascribed to this lack of conservation knowledge in the past.
In the case of the hospital, Arthur Gibney & Associates said that in many respects the room in the hospital provides “an ideal repository space”. They indicated, however, that the environmental requirements of BS 5454:1989 required to be addressed. Delap and Waller recommended maintenance of a constant controlled environment achieving internal space temperature of between 13°C-18°C and internal humidity levels of 55%-65% combined with the necessary air changes and air distribution by the installation of a packaged air conditioning unit. This should incorporate humidification/dehumidification components combined with air filtration components to reduce sulphur dioxide and nitrogen oxides to the required concentration. They recommended that the environmental conditions should be monitored by recording thermo-hydrographs and that alarm facilities should be installed so as to alert maintenance personnel to break-downs in the air conditioning system. They also recommended a lighting system to reduce the effect of ultra violet light and the installation of emergency lighting.
As to conservation of the books themselves, Dr Donlon and Mrs McCarthy were in agreement that Trinity College was the only institution, apart from Marsh’s Library, in the Republic of Ireland capable of providing appropriate conservation techniques and expertise. Mrs McCarthy said that, while she would have liked Marsh’s Library to receive the Worth Library, the conservation facilities in Trinity College Library are of so uniquely high a quality that the books should properly be preserved there rather than in Marsh’s Library.
Evidence on behalf of the Health Board on this matter was given by Mr Ronald Breugelmans, the keeper of Western Printed Books at the University of Leiden. The collection for which Mr Breugelmans is responsible amounts to approximately 1.5 million volumes with extensive collections from the sixteenth, seventeenth and eighteenth centuries and approximately 800 incunabula. He has a master’s degree in humanities at Leiden University and has done post-graduate studies in librarianship at the University of Amsterdam. He has also published works on rare books and manuscripts and is a member of various committees and learned societies in the Netherlands devoted to rare books. At the request of the Health Board, he visited both the hospital and the library of Trinity College and examined the books comprising the Worth Library. Mr Breugelmans did not agree with the view of Dr Donlon and Mrs McCarthy as to the importance of having immediately available the conservation facilities in Trinity College. He said that the excellent condition of the books indicated that they were not in need of any extensive restoration or major remedial works. Insofar as individual volumes might from time to time require conservation or restoration work, this could be carried out by the librarian carefully transporting the relevant volume to where the work is to be carried out.
4. Accessibility, cataloguing and availability of reference books
Dr Donlon, with whom in general Mrs McCarthy agreed, said that the library under the umbrella of a larger library, such as Trinity College, would provide an opportunity hitherto lacking of studying each item and each binding in relation to similar printings and bindings or in contrast to other printings and bindings. It would also enable such scholars to make use of the extensive reference collection of the Trinity College Library. She said that during her period as curator of the Western Collection in the Chester Beatty Library, an international expert, Dr Anthony Hobson, was commissioned to produce a catalogue of the Western Bindings in the library. He eventually had to transfer by car from England his own collection of reference books because he found his task impossible without them. Dr Donlon said that the library of Trinity College was the most advanced of academic libraries in terms of new technology and of putting on computer its files and records of its collections. It was also part of an important international network of research libraries and had access to information on comparable collections elsewhere. She said that the Worth collection should be catalogued in the most up-to-date detail and appropriate manner to ensure its proper place in international collections and that this task could only be successfully undertaken by Trinity College.
Mr Breugelmans said that there would be no problem in preparing a modern computerised catalogue of the Worth collection. He said that he had been shown the computerised catalogue system in the initial stages of being put in place in Trinity College Library, which he described as a very useful and practical system but by no means unique. He did not consider that the fact that facilities would be available to scholars to compare the books in the Worth Library with those in Trinity College Library was a sufficient reason for removing the entire collection to that library. If comparative studies were necessary, something which he said, in his experience, would not often occur, the individual books could safely be transported provided proper precautions were taken, but that such occasions should be rare. He said that it was better that the other book or books should be brought to the Worth Library rather than vice versa.
Mr Edward Giblin, the managing director of Technology Recruitment Ltd, who had worked in computers for a number of Irish and multinational firms, inspected the computerised library catalogue system in Trinity College on behalf of the Health Board. He disputed the statement of Mr Fox that this system was “up and running”, saying that the system was under final test and that the work of transferring the card index catalogue on to the computer system had not been started and would take “eight man years” of effort. He also said that the hardware and physical technology to support a catalogue data base for local and remote scholars exists within the Health Board already and that to achieve “software and presentation compatibility” in the respective catalogues, it was only necessary that the Worth Library be catalogued using the Trinity College catalogue as a model. So far as accessibility generally was concerned, Mr Breugelmans was of the view that the books in the collection should not be separated from the bookcases and the library room in the hospital because of the importance to a variety of scholars and others of examining the books in the library as a complete unit. He said that the books were far more important in this context than as individual volumes. He said that scholars interested in the history of libraries, art historians and sociologists would be deprived of what he described as the “invaluable possibility” of studying the contents, arrangement and fittings in an original and undisturbed eighteenth century library of a wealthy and educated man who was also obviously a bibliophile. He said that it was of great importance for scholars to see how the books were arranged on the shelves and how the library cases and presses were constructed to accommodate the different format of the books. The method of marking the shelves within the bookcases he described as “most unusual”.
5. Aesthetic Considerations
Dr Donlon said that she was most anxious that the Worth Library’s final location would be one which did not in any way compromise the character of the collection and would respect the dignity and integrity of the collection as a collection rather than as a “curiosity”. While she acknowledged that the hospital had been restored to a remarkably high standard, she considered that the effect of the library room there, in relation to its immediate environment, was one of “curious isolation, indeed almost alienation”. Remarking that the premises function as the modern office space of a busy and pressurised sector of the public service she said that, in her view, it was very far removed from the scholarly environment indicated by Dr Worth for the “physician, chaplain and surgeon”. Mrs McCarthy agreed fully with this view: she said that it would be wrong to remove the library from an academic establishment of the standing of Trinity College to an office headquarters, isolating it from the use of scholars and the world of learning generally.
Dr Maurice Craig is a graduate of Cambridge University and a PhD of Trinity College. He is also an honorary fellow of Trinity College, an honorary fellow of the Royal Institute of the Architects of Ireland and a member of the Royal Irish Academy. He is also a member of the Council of Trustees of the National Library. In addition to being the author of Dublin 1660-1860, he has also published The Architecture of Ireland and Irish Book Bindings. Dr Craig said that he was unaware of any glass fronted bookcases installed in a room in Ireland in the 1730s which have remained unmoved for more than 260 years. He said the glass in the bookcases was still the original early eighteenth century glass and that he would be happy to describe the room as “unique”.
Dr Craig said that the value of the collection as a discernible entity was much greater than the sum of its parts. He said that when collections such as this were absorbed into the holdings of large libraries, whether public or private, or even specialised holdings, their character was compromised and their unique identity obscured. The collection of books formed 270 or more years ago by a person such as Dr Worth threw light, not only on his tastes and interests, but also on aspects of the society and era to which he belonged. Dr Craig considered that, when such a collection was found in the architectural setting and original furniture expressly designed and made for it 260 years ago, as verifiable from the contemporary accounts and board minutes, the value of both the books and their setting was again enhanced. He said that, in his view, any separation of the amalgam of architecture and connoisseurship represented by the collection in its original setting was to be deplored. He said that, if separated, the value of the collection and of the original architectural setting and interior of the early eighteenth century were accordingly reduced.
Mr Breugelmans said that the Worth Library, by which he meant the collection of books on the shelves in the room and everything about the room, was “nearly unique” in Europe since it represented the almost unchanged private library of a man of the eighteenth century who was not of the nobility. He said that it was not possible to make comparisons between libraries of institutions, religious or secular, or public libraries or libraries of the nobility and libraries of a private individual, such as Dr Worth. He said that the only comparably preserved library in its original setting of which he was aware in Europe was that of Joannes Thysius in Leiden. He said that, removed from the environment of the original room, bookcases and furnishings, the books were immensely reduced in their value to scholars and in all other respects other than just as books. He described the proposal to remove the books permanently from the library as “an act of cultural vandalism”.
6. Funding
It was suggested on behalf of the plaintiffs that the Health Board were not legally empowered to make any funds available for the necessary expenses involved under the various headings already discussed. I shall consider the legal issue that arises at a later stage. At this point, however, it is sufficient to refer to the evidence of Mr Hickey. He accepted that it would be necessary to have a professional librarian who would attend the library in the hospital building on a number of days each week. It would also be necessary to meet other expenses such as insurance, conservation of books and cataloguing and provision of reference books. He said that it was proposed to establish a trust fund for this purpose and that a number of leading public and other companies and individuals had expressed their willingness to contribute to the trust fund if the court ruled that the books were to be returned to and housed in the hospital. An organisation known as “The Friends of Doctor Steevens’ Hospital Historical Centre” had been established under the chairmanship of Mr Desmond Cashell, a former vice-chairman of the board of governors of the hospital, to assist in the funding of the Worth Library and the Doctor Steevens’ Hospital Historical Centre.
(V) Legal submissions of the parties
At the outset of the legal arguments in the case, I indicated to counsel that I would require submissions to be made on the following matters:
(a)Whether the bequest by Dr Worth of the Worth Library was in law a charitable bequest;
(b)If it was a charitable bequest, the nature of the charity intended to be benefited by Dr Worth;
(c)If is was a charitable bequest, whether conditions had arisen for the exercise by the court of the cy-près jurisdiction;
(d)If the answer to (c) was in the affirmative, whether the scheme proposed by the plaintiffs was one which should be ordered by the court to be carried into effect.
Counsel said they were in agreement that the bequest was a charitable bequest. However, I took the view that this was not a case in which the court was solely concerned with the resolution of issues between private parties, where the court might be unwilling to raise matters which the parties had agreed not to raise. This was a case in which the court was being invited to exercise its cy-près jurisdiction, a jurisdiction which can only be exercised in the case of charitable donations and bequests and no other bequests. Counsel for the plaintiffs and the Health Board were reluctant to advance any submissions to the effect that there was no charitable bequest, for obvious reasons: if the bequest was found to be non-charitable, it would clearly contravene the rule against perpetuities and there would be a resulting trust in favour of the descendants of Dr Worth. If those descendants were not ascertainable, the library would presumably escheat to the State under the State Property Act 1954. While the Attorney General had a contingent interest in the latter possibility, it was understandable that counsel on his behalf did not seek to argue that the bequest was not charitable, since he appeared in the case in his role as the protector of charities. In the result, there was no legitimus contradictor to contest the proposition that this was a charitable bequest. While this did not make the resolution of the matter any easier, I considered it essential, for the reasons already stated, to consider the issue as to whether the bequest was a charitable bequest.
Mr Gordon SC on behalf of the plaintiffs submitted that the bequest was a charitable gift for the advancement of education or, in the alternative, the advancement of learning and in either case was for the benefit of the community. He submitted that since the intentions of Dr Worth could no longer be carried out and the Governors, having considered the various possibilities, had decided to entrust the future custody of the books to Trinity College, the appropriate conditions had arisen for the framing of the cy-près scheme in the manner proposed by the plaintiffs. He said that preserving the library as an integral collection in a great centre of scholarship and learning such as Trinity College would be the most appropriate means of carrying into effect Dr Worth’s intentions in the greatly changed circumstances of today. He submitted that, apart from these considerations, Dr Worth’s own associations with Trinity College of which he was a graduate, and the long association of Trinity College with Steevens’ Hospital, signified by the presence of the Provost as an ex officio governor, also indicated that this would be an appropriate means of carrying into effect Dr Worth’s intentions. He also submitted that the maintenance by the Health Board of the library in their headquarters and the expenditure of funds to that end was ultra vires the powers of the Health Board under the Health Acts 1947 to 1991.
Mr Butler SC on behalf of the Attorney General, submitted that the bequest was a charitable gift analogous to the bequest of money for the maintenance of a library for a regimental officers’ mess found to be charitable by Farwell J in In re Good, Harrington v Watts [1905] 2 Ch 60. He said that it was the view of the Attorney General that it would be preferable to keep the books in the hospital where they were originally housed, provided the practical difficulties that had been discussed during the course of the hearing could be resolved to the satisfaction of the court. Mr Herbert on behalf of the Health Board submitted that the bequest was a charitable gift for the benefit of the hospital. He said that the charitable nature of gifts to hospitals had been established beyond doubt by the decision of the former Supreme Court in Barrington’s Hospital v Commissioner of Valuation [1957] IR 299. He submitted that the whole tenor of the will reflected Dr Worth’s intention to benefit the hospital rather than any individuals and that the words in the will “for the use, benefit and behoof of the physician, chaplain and surgeon for the time being of the said hospital” and the directions as to the safe-keeping of the books should be regarded as imposing a precatory trust on the trustees with which they were not necessarily obliged to comply, citing in support the decision of Murray J in the Northern Ireland case of In re Steele, Northern Bank Executor and Trustee Co Ltd v Linton [1976] NI 66. He submitted that, in the alternative, the gift could be regarded as one for educational purposes which was beneficial to the community and that the fact that it was for the benefit of a numerically insignificant group was not of importance. He submitted that, whether the gift was for the benefit of the hospital or for educational purposes, the library itself should be preserved in the building for which it had been originally intended by Dr Worth and that the evidence before the court established that this could be done without endangering the books themselves or rendering them less accessible to scholars. He submitted that the views of the Attorney General as the protector of charities on a matter of this nature should carry particular weight with the court. He finally submitted that the Health Board clearly had power under the Health Acts to maintain the library and apply funds for that purpose, referring in particular to s 78 of the 1947 Act and s 60(3) of the 1970 Act.
(VI) The applicable law
Although the jurisdiction of the Court of Chancery to enforce charitable trusts is sometimes referred to as originating in the English and Irish Statutes of Charitable Uses (43 Eliz 1, c 4; 10 Char 1, Sess 3, c 1) passed respectively in the reigns of Elizabeth I and Charles I, it is generally accepted that the jurisdiction dates from an earlier time. The significance of the two statutes (both long repealed) is that the preambles have, in numerous cases, been treated by judges as providing an “index” to charities recognised by the law. In addition, however, the law has identified new purposes as charitable as they arose for consideration. Thus, the list of charitable purposes in the relevant statute is not exhaustive and a trust may still be charitable if it is within “its spirit and intendment” (Morice v Bishop of Durham (1804) 9 Ves Jr 399). Although the wording of the preambles is different, it has also been held that the Irish Act was an “exact pattern” of the English Act and intended to effect the same results: Incorporated Society v Richards (1841) 1 DR & War 258.
The charitable purposes set out in the Irish statute are:
“The erection, maintenance or support of any college, school, lecturer in divinity, or in any of the liberal arts or sciences, or for the relief of any manner of poor, succourless, distressed or impotent persons, or for the building, re-edifying or maintaining and repair of any church, college, school or hospital, or for the maintenance of any minister and preacher of the holy word of God, or for the erection, building, maintenance or repair of any bridges, causeyes, cashes, paces and highways within this realm, or for any other like lawful and charitable use and uses, warranted by the laws of this realm now established and in force …”
In the course of his argument in Morice v Bishop of Duram, Sir Samuel Romilly said in a much cited passage:
“There are four objects, within one of which all charity, to be administered in this Court, must fall: first, relief of the indigent; in various ways: money: provisions: education: medical assistance; secondly, the advancement of learning: thirdly, the advancement of religion and, fourthly, which is the most difficult, the advancement of objects of general public utility.”
He also drew a distinction which was repeatedly echoed in subsequent cases between “charity” and what he called “liberality” (or “benevolence”, to use the expression more popular in the later cases), which is not synonymous in law with “charity”.
Romilly MR’s classification of legal charities into four categories was adopted by Lord Macnaghten in his celebrated speech in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531, with one amendment which is of some significance in the present context. The frequently cited passage is as follows:
“How far then, it may be asked, does the popular meaning of the word ‘charity’ correspond with its legal meaning? ‘Charity’ in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do either directly or indirectly.”
Lord Macnaghten’s substitution of “education” for “learning” does not mean that gifts which can be regarded as for the advancement of learning but cannot be regarded as gifts for the advancement of education, as the latter expression has been construed by the courts, are not charitable. They may be charitable if they are for the benefit of the public. The distinction is material, since it has been held in England that gifts in the first three categories are presumed to be for the public benefit. In National Anti-Vivisection Society v Inland Revenue Commissioners [1948] AC 31 at p 65, Lord Simonds said:
“If the purpose is within one of the heads of charity forming the first three classes in the classification which Lord Macnaghten borrowed from Sir Samuel Romilly’s argument in Morice v Bishop of Durham, the court will easily conclude that it is a charitable purpose … When a purpose appears broadly to fall within one of the familiar categories of charity, the court will assume it to be for the benefit of the community and, therefore, charitable, unless the contrary is shown, and … the court will not be astute in such a case to defeat by doubtful evidence the avowed benevolent intention of a donor.”
To that statement of the law, one rider is necessary in Ireland: in the case of gifts for the advancement of religion, the presumption that they are charitable is conclusive by virtue of s 45 of the Charities Act 1961.
There was some discussion in the arguments of counsel in the present case as to the divergence of views between Irish and English judges as to whether charitable trusts within the fourth category are to be examined by reference to a subjective or an objective test. That divergence of view also existed, in a far more acute form, in the case of trusts for the advancement of religion but is no longer relevant since the enactment of s 45 to which I have already referred. In the case of gifts in the fourth category, it is of less significance than is sometimes supposed, as a careful study of the judgment of Fitzgibbon LJ in In re Cranston, Webb v Oldfield [1898] 1 IR 431 and the speech of Lord Simonds in National Anti-Vivisection Society v IRC [1948] AC 31 makes clear. In the present case I do not think that the distinction, to the extent that it can be said to exist, has any relevance. In every case, the intention of the testator is of paramount importance. If he intended to advance a charitable object recognised as such by the law, his gift will be a charitable gift. In the case of gifts which do not come within the first three categories, the fact that the testator’s view as to the public utility of his favoured object eg vegetarianism – is not shared by many people will not of itself prevent it from being, in the eyes of the law, a valid charitable object within the fourth category, provided it is not illegal, irrational or contra bonos mores. That, as I understand it, is the effect of the majority decision of the Irish Court of Appeal in In re Cranston, Webb v Oldfield. In the present case, the two possible charitable objects which come within the fourth category – the advancement of learning and of hospitals – would be considered as beneficial to the public by an appreciable number of people and are obviously not illegal, irrational or contra bonos mores. Consequently, the divergence of view sometimes thought to exist between the English and Irish courts is not material.
There is one other principle of general application to which I should refer. The court leans in favour of charities and, consequently, will prefer a construction which gives effect to the testator’s desire to benefit a stated object rather than one which leads to a failure of the bequest.
I now turn to the specific forms of charitable bequests which arise for consideration in the present case. The first category – gifts for the advancement of education – would embrace, not merely gifts to schools and universities and the endowment of university chairs and scholarships: “education” has been given a broad meaning so as to encompass gifts for the establishment of theatres, art galleries and museums and the promotion of literature and music. In every case, however, the element of public benefit must be present and, if the benefit extends to a section of the community only, that section must not be numerically negligible. In In re McEnery, O’Connell v Attorney General [1941] IR 323, Gavan Duffy J laid particular stress on this last aspect of education charities. In that case, the bequest was of a trust fund for enabling the nephews and nieces of the testator and their male descendants to obtain professions. The learned judge pointed out that it was then over 200 years since Lord Hardwicke LC in Attorney General v Pearce (1740) 2 Atk 87 declared that it was its extensiveness that constitutes a public charity. Gavan Duffy J concluded that:
“The trust here is, in my opinion, too narrow to be charitable; the motive may have been charitable, but the intention was to benefit specific individuals, and the fact, though not conclusive, is worthy of note that, if the trust were good, each suitable beneficiary would appear to have an enforceable claim upon the trust …”
Even more strikingly, in Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297, a trust for the education of children of employees, or former employees, of a group of companies was held not charitable, although the number of employees exceeded 110,000. In each of these cases, the trust failed, of course, not simply because the numbers were insignificant (they could certainly not have been so described in the Oppenheim case): they also suffered from the generally fatal defect of a requirement that the beneficiaries be related to or connected with a named propositus.
In the present case, even if it could be said that the bequest was for educational purposes (and, given the insignificant proportion of the library devoted to medicine and surgery, that would involve some straining of the concept of “education” even beyond the liberal limits of the modern decisions),it would be impossible to hold that this was an educational charity for the benefit of the public. The books are given and bequeathed to the trustees: “for the use, benefit and behoof of the physician, chaplain and surgeon for the time being of the said hospital …” The only form of educational charity (if such indeed this is) more limited than this which it is possible to envisage is one for the benefit of one or two named individuals or office holders. I have no hesitation in rejecting the submission that the bequest was a charitable gift for the advancement of education. The next category to which it was submitted that the bequest belonged was that of a charitable gift for the advancement of learning. As I have already mentioned, under Lord Macnaghten’s classification, this species of charitable gift, to the extent that it is recognised by the law, belongs to the fourth category of trusts for purposes beneficial to the community not coming within any of the other categories.
In In re Shaw, Public Trustee v Day [1957] 1 WLR 729, Harmon J said that:
“If the objective ……….. be merely the increase of knowledge, that is not in itself a charitable object unless it be combined with teaching or education.”
This view, which was based to some extent on the decision of the House of Lords in Whicker v Hume (1858) 7 HL Cas 124, might not command universal acceptance today. Thus, in In re Hopkins’ Will Trusts, Naish v Francis Bacon Society Inc [1965] Ch 669, Wilberforce J, as he then was, when considering a gift establishing a fund “to be earmarked and applied towards finding the Bacon-Shakespeare Manuscripts”, said that:
“I should be unwilling to treat … as meaning that the promotion of academic research is not a charitable purpose unless the researcher were engaged in teaching or education in a conventional meaning; and I am encouraged in this view by some words of Lord Greene MR in In re Compton, Powell v Compton [1945] Ch 123.”
It may well be that the words of Harmon J, literally applied, would exclude from the legal definition of charity certain trusts for the advancement of knowledge, eg the encouragement of academic research, which might reasonably be regarded as for the public benefit. If that were so, I would prefer the view of Wilberforce J.
A gift of a library may be charitable as being for the public benefit. However, it is clear from the authorities that a gift of a library is not charitable per se: thus, gifts to private bodies for the purpose of establishing libraries for the benefit of persons paying subscriptions have been held not to be charitable in Carne v Long (1860) 2 De GF & J 75 and In re Prevost, Lloyds Bank Ltd v Barclays Bank [1930] 2 Ch 383. But a gift of a library which is open to the public has been held, as one would expect, to be charitable: see In re Scowcroft, Ormrod v Wilkinson [1898] 2 Ch 638 at p 642. So too have gifts of libraries where they can be reasonably described as being conducive to the attainment of a charitable object, such as the gift for the purchase of books for Trinity College, Oxford, in Attorney General v Marchant (1866) LR 3 Eq 424 where it was held to be for the advancement of education and the gift in the decision cited by Mr Butler SC of a fund to purchase a library for an officers’ mess, where it was held to be conducive to increasing the efficiency of the British army, a recognised charitable purpose.
There is, in my view, no indication in the will of Dr Worth that he intended the library to be for the benefit of any persons other than the named office holders. If he had wished his books to be available to scholars generally, he would have bequeathed them to the library of Trinity College or Marsh’s Library, with both of which he was obviously well acquainted. Far from doing so, he was meticulous in ensuring that the books should only be available to the three designated office holders. They alone were to have keys to the library and under no circumstances were any of the books to be removed. He laid down astringent procedure under which the Governors were to satisfy themselves at regular intervals that none of the said books were “wanting and defaced”. I see no reason to attribute to Dr Worth any motive or intention that does not appear plainly from his will. His wishes are in fact abundantly clear: to provide in the hospital, the establishment of which was so obviously close to his heart, a fine library to be used by the physician, surgeon and chaplain who alone would have access to the room in which the library was housed. The only argument put forward in support of the contention that Dr Worth intended his books to be generally available to scholars from everywhere is the direction that the books should be catalogued and copies of the catalogues placed in the library of Trinity College and Marsh’s Library. I accept entirely the expert opinion of Dr Donlon and Mrs McCarthy that the catalogues prepared were in the form which would have been adopted by a learned bibliophile who wished scholars to have access to his library. But there was obviously another reason which might have prompted Dr Worth to have two copies of the catalogue available in what he clearly considered responsible hands. Given his concern with the security of the books, it would have been a sensible precaution for him to have ensured that other copies of the catalogue were available, if the original was lost or mislaid or pages torn out of it by some person anxious to conceal a theft from the library. Happily, it is unnecessary to speculate on Dr Worth’s reasons for giving these directions: he, or the draftsman of the will on his instructions, has spelt out the reason with his usual meticulous clarity:
“and to the end that they may be better preserved I will and direct that three catalogues may be made of them …”
There was nothing to prevent Dr Worth from directing copies of the catalogues to be made “to the end that scholars and others of learning and repute may peruse the said books” or words to that effect. He chose an entirely different formula and it is not for me to ascribe to him motives which nowhere appear in the will. I am satisfied, accordingly, that this was not a charitable gift for the advancement of learning within the fourth Pemsel classification.
The third category of charitable gifts within which it was sought to place this disposition was that of a gift for the benefit of a hospital. That such a gift is charitable is clear beyond doubt from the decision of the former Supreme Court in Barrington’s Hospital v Commissioner of Valuation [1957] IR 299. As Kingsmill Moore J pointed out in that case, the wording of the Irish preamble points even more clearly to that conclusion than the wording employed in the English preamble, since it refers to: “the relief of any manner of poor, succourless, distressed or impotent persons …” The words in the English statute are: “the relief of aged, impotent and poor people …” The disjunctive ‘or’ in the Irish preamble lent further support, in the learned judge’s view, to the proposition that the relief of “impotent” persons was within the intendment of the statute. It was also clear from that decision that the fact that the hospital admits fee paying patients in addition to those treated without charge (as Steevens’ Hospital undoubtedly did) does not affect its charitable status. The question arises, however, as to whether a gift of a library such as this for the benefit of the holders of particular offices within the hospital can properly be regarded as a gift for the benefit of the hospital itself and hence charitable. I cannot accept Mr Herbert’s submission that those parts of the will which follow the bequest to the trustees of the hospital and which make it clear that the gift is to be for the benefit of the office holders and imposed the conditions in relation to the security of the books are “precatory” in nature, ie, imposing no more than a form of moral obligation on the trustees to comply with the testator’s wishes but having no effect in law. Mr Herbert relies in support of this submission on the absence of any gift over and also on the decision of Murray J in In re Steele. In that case, it was held that a condition attached to an admittedly charitable gift for the repair and upkeep of a parish church under which the testator’s family burial plot was to be maintained was a precatory condition which did not affect the validity of the gift for the repair of the church. In the present case, however, the gift to the trustees “for the use, benefit and behoof of” the office holders is not in any sense a condition: it is quite clearly a bequest to trustees for the benefit of designated individuals. That of itself is fatal to Mr Herbert’s contention but, in any event, the language used in the conditions which follow is not consonant with their being treated as precatory only: they are plainly directions which the testator wished to be complied with to the letter.
I am, however, satisfied that the gift is one for the benefit of the hospital on the other grounds advanced by Mr Herbert. That Dr Worth intended to benefit Steevens’ Hospital in his will is beyond question: he begins his will with a bequest of money for that purpose and it is noteworthy that it is to the trustees of the hospital that he gives his library for the benefit of the designated persons. It is, moreover, the holders of the offices, and not named individuals, who are to benefit. In addition, he was concerned that the hospital and its patients should not be at any loss as a result of the bequest.
While the relatively small number of medical and surgical books in the library would not have rendered it of much practical benefit to the physician and surgeon and the vast number of books devoted to purely secular and profane topics would not have been of any great assistance to the chaplain in his studies of divinity, the library in its beautiful setting would have provided a haven of quiet intellectual relaxation for the beneficiaries. Doctors and surgeons, as we all know, develop a necessary professional detachment from the scenes of death and suffering which greet them every day in the course of their work. But it is equally obvious that they value the solace of a completely different environment from time to time and I think there can be no doubt that this is what Dr Worth intended to provide. How much more necessary it was in the terrible conditions of the early eighteenth century, when the days of anaesthetics and modern drugs lay far in the future, need not be emphasised. A nurses’ home was found to be charitable for not dissimilar reasons in In re White’s Will Trusts, Tindall v Board of Governors of United Sheffield Hospitals [1951] 1 All ER 528.
No case of the gift of a library for such a purpose appears to have come before the courts before, the nearest equivalent being the gift of the library to the officers’ mess in In re Good. The view of Farwell J that the purchase of books for the library would in some sense be conducive to the efficiency of the army seems, with respect, a little fanciful and this may have prompted the doubts expressed by Lord Norm and as to the correctness of the decision in IRC v City of Glasgow Police Athletic Association [1953] AC 380 at p 391. But for the reasons I have already given, I do not think that there is any ground for scepticism in the present case as to the capacity of the gift to play a part in the advancement of the great charity represented by the hospital itself. I conclude, accordingly, that the bequest in the will was a valid charitable bequest for the benefit of Steevens’ Hospital, falling within the fourth category of Lord Macnaghten’s classification. The next issue that has to be considered is as to whether circumstances have arisen which justify the invocation of the cy-près jurisdiction of the court. The circumstances in which that jurisdiction may be invoked were defined as follows by Budd J in In re Royal Kilmainham Hospital [1966] IR 451 at p 469:
“The law requires that if a charity can be administered according to the directions of the founder, it should be so administered. When it is established that a gift has been made with a general intention of charity and a failure of purposes ensues, it is not allowed to fail but will be carried out cy-près. Likewise, where there is an absolute perpetual gift to a charity, even though the trust be only for the accomplishment of a particular charitable purpose, the same results ensue. The principle is applied where the method indicated by the donor of carrying out his charitable intention becomes impractical, or his intentions cannot be executed literally, most frequently owing to altered circumstances …
However, the cy-près principle is confined to cases where property is given with a general intention to charity with this exception, that where property is given absolutely and perpetually to charity for a particular purpose and is vested in the charity the fund can be applied cy-près irrespective of the donor’s particular intention. As to what is to be regarded as a general charitable intention, no hard and fast rule can be laid down.”
The provisions of s 47 of the Charities Act 1961 must also be borne in mind. They provide inter alia that:
“the circumstances in which the original purposes of a charitable gift may be altered to allow the property given or part of it to be applied cy-près shall be as follows:
(a)Where the original purposes, in whole or in part –
(i)have been as far as may be fulfilled; or
(ii)cannot be carried out, or cannot be carried out according to the directions given and to the spirit of the gift …
(c)Where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to the spirit of the gift, be made applicable to common purposes … (e)Where the original purposes in whole or in part have since they were laid down
(iii)ceased … to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift …”
I do not think that any “general charitable intention”, in the sense referred to in the authorities, can be inferred in the case of this gift. It is quite clear from the terms of the will that Dr Worth intended to benefit Doctor Steevens’ Hospital and no other institution. It was, however, undoubtedly an absolute and perpetual gift of the library for the benefit of Doctor Steevens’ Hospital, which I have already found to be a charitable purpose. It is also clear that, since the hospital no longer exists, the original purposes of the charitable gift cannot be carried out according to the directions given and to the spirit of the gift. It follows that the original purposes should now be altered so as to allow the property to be applied cy-près.
Before considering how the property should be applied cy-près, one further legal matter remains to be considered. It was submitted on behalf of the plaintiff that it would be ultra vires the powers of the Health Board under the Health Acts 1947 to 1991, to undertake the custody and management of the library if it were to be housed in the hospital building. This is clearly not a particularly meritorious argument, since, even if it were technically correct but the plaintiffs and the Health Board were in agreement that the books should be returned to the hospital there could be no legal objection to the ownership of the books remaining vested in the plaintiffs as trustees while mere defacto possession remained with the Health Board. However, I am also satisfied that it is without legal substance. The Health Board are expressly empowered under s 78 of the 1947 Act and s 60(3) of the 1970 Act to acquire for their statutory purposes: ‘any estate or interest in land’. Like all other corporations, they also enjoy, in addition to their express powers, an implied power to do any acts which are incidental to or consequential upon their express objects. (See Attorney General v Great Eastern Railway [1880] 5 App Cas 483). If a Health Board is in a position to acquire a property which is suitable for carrying out their statutory objects – and it is not suggested that Doctor Steevens’ Hospital was not such a building – the vendors might very well stipulate that, as part of the sale, the purchasers should pay for certain fixtures and fittings, eg carpets etc. They might also make such a stipulation in relation to pictures and other furnishings. If the Governors and the Health Board had agreed on the sale at a stage when the Governors had not approached Trinity College with a view to transferring the library into their custody and the Governors had satisfied themselves that the Health Board would be responsible custodians of the books, I do not think it could be plausibly argued for a moment that the Health Board would be acting ultra vires in agreeing to accept custody of the books. If acquiring a premises suitable in every way for their statutory purposes involved taking on an additional role as custodian of the books, I have not the slightest doubt that it could reasonably be regarded as one of the incidental or consequential powers they enjoyed in addition to the express power of acquiring property conferred on them by the Acts. The situation cannot be altered by the fact that the books have been temporarily removed to the safe custody of another body pending a decision as to their future. If all the other requirements of both the law and expert opinion are satisfied and particularly if all the aesthetic considerations indicate that Steevens’ Hospital is indeed the appropriate repository for these books, then I have no doubt that the Health Board should be regarded as having, in addition to their statutory powers to acquire and hold property, an implied power to become
the custodian of the library.
(VII) Application of the property cy-près
In considering how the property should be applied cy-près and, in particular, whether a scheme should be framed in the manner proposed by the plaintiffs, it is, of course, desirable that the original intentions of the testator should be adhered to so far as is possible. The difficulties, however, of both ascertaining those intentions and giving effect to them in the case of so venerable a bequest as this are obvious. As Meredith J remarked in Governors of Erasmus Smith Schools v Attorney General (1932) 66 ILTR 57 at p 61:
“To apply without modification a charitable intention that is only expressed in relation to assumed facts and under different conditions is obviously not to carry out the real intention at all. It is on this principle that courts of law adapt the statement of a charitable intention to suit altered circumstances and conditions with a view to giving effect to the real intention. Donors cannot be expected to provide expressly for more than the world and the times with which they are familiar. Accordingly, the perpetuity for which charities may endure throws upon the court the burden of providing for that which the donor did not foresee, in accordance with what it finds to be the underlying intention of the charity foundation.”
Thus, in a case such as the present, it is a futile exercise to transport Dr Worth in one’s imagination in some form of time machine to Dublin in 1993. All that the court can do is to apply the gift as it might be applied by a late twentieth century equivalent of Dr Worth. Our hypothetical benefactor should be a medically qualified person with a passionate interest in bibliophilia and of a charitable disposition. It is also reasonable to credit him with a desire to associate his charitable work with the building in which Steevens’ Hospital was housed, since his eighteenth century equivalent wished the hospital to be the object of his benevolence in perpetuity. If this approach is adopted, I think that it brings one as close as is reasonably possible to what the draftsman of the 1961 Act has called “the spirit of the gift”. Such a person would not seriously consider relocating the library in one of the modern Dublin hospitals. He would have in the forefront of any plan he might devise the paramount necessity of preserving the library in the custody of an appropriate and responsible body. He would recognise that the principal value of the library is not the provision of knowledge or intellectual stimulus or excitement to readers of the books: it is making available to scholars and others the books as books, considered both individually and as a collective library. The typography, paper and bindings, altogether apart from the contents, are of enormous interest to scholars and bibliophiles the world over. Hence, he would be concerned to ensure that such persons had reasonable but supervised access to the library and also the other scholarly tools necessary for making an informed study of the contents of the library, such as a modern computerised catalogue, suitable reference books and other comparable books. Finally, he would consider whether the broader aesthetic considerations to which I have referred in an earlier part of this judgment would point towards preserving the books in Steevens’ Hospital or transferring them to Trinity College, the only other institution which has been suggested as a possible repository.
As to the Governors, they, it would seem, are still theoretically in existence as a corporate body, since the Act which incorporated them has not been repealed. They were satisfied to transfer custody of the library to Trinity College at a stage when there was no potential purchaser of the hospital building who might be prepared to act as its custodian and who might be regarded as a responsible guardian of the books. In those circumstances, it would not be proper to impute to them any views as to the merits of the present controversy, even if such views were relevant to its resolution.
If these are the criteria to be applied, it will be evident from my summary of the evidence in the case that either Doctor Steevens’ Hospital or Trinity College would provide, in some respects at least, a suitable repository. In both buildings, it will be possible to preserve the books from the dangers of fire, accidental or intentional damage or loss and theft. To the extent that conditions in Doctor Steevens’ Hospital fall short of the most rigorous standards in this area – and they are undoubtedly the standards which should be applied – there is no inherent difficulty, as the reports of the technical experts demonstrate, in remedying those deficiencies. Those reports, so far as the evidence goes, highlight two possible difficulties in the area of fire precautions. It was pointed out that the ceilings were not impervious to water and that there might be some hazard in a fire fighting situation. It was not suggested, however, that this was an insuperable problem and it would be surprising if it were so. Secondly, it was said that because the interior of the library was listed for preservation in the development plan, it would not be possible to comply with the specification of Class 0 for interior surfaces in the building regulations. At worst, this means that the owners of the building are subjected to conflicting legal requirements. If responsible fire safety experts are satisfied that all reasonable precautions have been taken, then the building regulations – which were not opened in any detail – presumably cannot be enforced against the owners to require them to commit an illegal act by violating the planning code. Again, it was not suggested that this was in any sense an insuperable problem.
The advantage which Trinity College possesses is the ready availability of conservation techniques which are acknowledged to be by far the best available in the Republic of Ireland. I am satisfied, however, that while this is undoubtedly a factor to be weighed, it cannot be regarded as a conclusive factor. All the evidence indicates that a remarkable feature of the books comprising the library is the magnificent condition in which they have been preserved. It is not in any way to denigrate the skills of the conservators in Trinity College to say that this result was achieved without any assistance from modern technology: it was the result of the books being housed in the glass fronted bookcases in Doctor Steevens’ Hospital for 260 years and of the relatively sparing use to which they were subjected during that period. Since any scheme approved of by the court for either institution would require the rigorous maintenance of an appropriate environment in terms of humidity, temperature and freedom from dust and other pollutants, it follows that the existence of the conservation facilities in Trinity College cannot be in any sense a decisive factor.
Trinity College is at most a fifteen minutes’ car journey from Steevens’ Hospital and it is implausible to suggest that, on the relatively rare occasions that it might be necessary to seek the assistance of the conservation facilities, the relevant books could not be transported in reasonable safety to the college. That, of course, presupposes the continued involvement of Trinity College in the administration of the charity: if their assistance were not available, it would be necessary to seek conservation facilities elsewhere. This would undoubtedly involve some additional expense if, for example, the relevant expert was to travel from the British Library or some equivalent institution in England with any necessary equipment. That would raise again the question of funding, but certainly does not constitute an insuperable obstacle.
So far as the existence of cataloguing, comparisons with other books and the availability of reference books is concerned, Trinity College undoubtedly possesses advantages which the hospital does not. I am satisfied, however, that there is no technical difficulty in providing the necessary computer equipment in the hospital which can be linked in turn to computer based catalogues in other libraries. It is equally clear that, provided the necessary funds are forthcoming, the necessary reference library can also be provided in the hospital and the services of a professional librarian secured.
It is undoubtedly the case that comparisons with other books can be made by scholars if the books are housed in Trinity Library which cannot be made if they are to be returned to the hospital. But this is heavily outweighed by another consideration. If the books are not returned to the hospital, it will be impossible for scholars interested in the history of libraries, art historians and sociologists to study the contents, arrangements and fittings of an eighteenth century library, the manner in which the books were arranged on the shelves and how the library cases and presses were constructed to accommodate the different format of the books. They would have to examine the books in Trinity College, then go to the empty and deserted Worth Room in the hospital and attempt to construct a mental picture of how the library must originally have looked. Provided all the requirements I have mentioned of security and environmental control can be met, that is a result which should be avoided.
There is a general acceptance by those who gave evidence that the library will be of interest to a relatively limited number of scholars and that it would indeed be undesirable, not least for security reasons, for the public in general to be allowed unrestricted access to the books. I think it is most unlikely that scholars with a genuine interest in the library will be inhibited in gaining access to it by its being situated in the hospital building rather than in Trinity College.
There remain what I have referred to as the general aesthetic considerations. As to these, I have little doubt as to the direction in which our imaginary benefactor would lean. That Trinity College is a centre of living and vibrant scholarship is beyond question. That Steevens’ Hospital is now the headquarters of what might be described without disrespect as a bureaucratic organisation is also true. I can only say that on a visit to the latter building and on entering the Worth Room for the first time, I was in no way conscious of the sense of “alienation” of which Dr Donlon spoke. I bear in mind the dangers of converting oneself into a witness and the possibility that, on the day on which I paid my visit, conditions were unusually quiet: all I can say is that I found in the building an atmosphere of relative calm which provided a striking contrast to the necessarily intense bustle and activity of a modern acute hospital.
More decisively still, however, I think the considerations so eloquently advanced by Dr Craig and Mr Breugelmans must in the end prevail. In this context, I was much struck by the belief expressed by Dr Donlon and Mrs McCarthy and, I have no doubt whatever, genuinely held by these eminent experts, that returning the collection to Doctor Steevens’ Hospital is “to seek to freeze the collection in time rather than as a vibrant and continuous legacy to a scholarly community” and that this is to be resisted. That preserving the Worth Library in its original home in Steevens’ Hospital will be to “freeze it in time” is probably true. Many who have visited carefully preserved or restored buildings of historic, architectural or artistic interest in Ireland or abroad will have been conscious of precisely that feeling of moving into long vanished worlds. Far from it being a serious disadvantage, it seems to me, and ultimately I must make the decision, one of the chief glories of the treasures of which we are now the custodians. I see no reason why, under careful and responsible management subject to the ultimate control of the court, the Worth Library should not join them, preserving almost exactly as it existed 250 years ago in its original setting the private library of a man of taste and learning at the flood tide of the Enlightenment.
I am accordingly satisfied that any cy-près scheme framed by the court in this case must provide for the retention of the books and the portraits in their original setting in Doctor Steevens’ Hospital. At the moment, the only scheme before the court is that set out in Appendix 1 providing for the retention of the books in their present temporary home in Trinity College. It will accordingly be necessary to adjourn the further hearing of the case in order to enable a new draft scheme to be prepared. It is obviously extremely desirable that the plaintiffs should remain as trustees, although it might be appropriate to join the Health Board as a new trustee. I think it is of importance that the various skills of Trinity College and the expertise of Dr Donlon should continue to be available in the administration of the trust. It is, however, to be borne in mind that Trinity College only became involved in this matter originally at the request of the Governors and it may be that they will not wish to participate further in the administration of the trust. That is entirely a matter for them and neither they nor Dr Donlon can or should be compelled by the court to continue their interest in the matter. It is also the case that the present proposals by the Health Board are somewhat vague in the area of funding and that the two questions of fire safety – and any others which I may have overlooked – will also have to be addressed. It is to be hoped that, when the matter comes on after an interval there will be more concrete proposals before the court in relation to funding, specifying the actual costs of maintaining the library and the manner in which they will be met. I would naturally hope that, during the period of the adjournment, further discussions would take place between the plaintiffs and the Health Board as to the best method of re-establishing the Worth Library in Doctor Steevens’ Hospital subject to all the necessary security and other arrangements. I will, however, hear counsel as to the form of order I should make, having regard to the findings in this judgment.
Appendix I
Scheme submitted by the plaintiffs
For the regulation, management and administration of the property of the above named charity.
WHEREAS:
(a)Dr Edward Worth by his last will dated 4th November 1723 gave and bequeathed all his books (subject to certain specified exceptions) in trust to be kept at some convenient room at Dr Steevens’ Hospital for the use, benefit and behoof of the physician, chaplain and surgeon for the time being of the said hospital.
(b)By statute of the 30th year of George II Chapter 23 the trustees of the said hospital were incorporated under the name “the Governors and Guardians of the Hospital founded by Doctor Richard Steevens”.
(c)The said Dr Edward Worth died in or about February 1732 and in accordance with the terms of his said will the books which he gave and bequeathed for the use of the physician, chaplain and surgeon of the said hospital have been housed in a library commonly called the ‘Worth Library’ at the hospital’s premises at Steevens’ Lane in the City of Dublin.
(d)It has been found no longer practicable to carry on the said Dr Steevens’ Hospital which has now been closed and the said premises has been sold.
(e)The Governors of Dr Steevens’ Hospital desired that the contents of the said Worth Library be transferred to the Provost, Fellows and Scholars of the College of the Holy and Undivided Trinity near Dublin. The Commissioners of Charitable Donations and Bequests for Ireland vested the trust property in the Provost, Fellows and Scholars of the College of the Holy and Undivided Trinity near Dublin and the director for the time being of the National Library as trustees by order dated 5th February 1991.
(f)It is desired that the Worth Library shall be administered in accordance with the scheme hereinafter set out. NOW IT IS HEREBY PROVIDED AS FOLLOWS: 1. Definitions:
(a)The “Commissioners” means the Commissioners of Charitable Donations and Bequests for Ireland.
(b)the “Charity” means the Worth Library hereby constituted.
(c)the “Property of the Charity” means the books, pamphlets, manuscripts, reports, maps and other documents, the portraits and the shelving and bookcases heretofore constituting the Worth Library and kept in the library of that name at Dr Steevens’ Hospital in the City of Dublin.
(d)the “Trustees” means the Provost, Fellows and Scholars of the College of the Holy and Undivided Trinity near Dublin and the director for the time being of the National Library, the current director being Patricia Donlon.
(e)the “Trust Fund” means all monies and other property which may be paid or transferred to the Trustees at any time hereafter to be held by them on the charitable trusts declared by this Scheme and the investments from time to time representing same.
(f)Unless the context otherwise requires the singular includes the plural and the masculine includes the feminine.
(g)Clause headings are for reference only and shall not be taken into consideration in their interpretation. 2. Name of Charity: The name of the Charity shall henceforth be “the Worth Library” and under that name shall be carried on in accordance with the provisions of this scheme. 3. The Objects of the Charity:
(a)The Trustees shall hold the property of the Charity upon trust in accordance with and subject to the powers and provisions of this Scheme for the purposes of preserving and conserving the same as a unit in perpetuity and maintaining a library or other suitable environment for the public display and study of same in or about the premises of Trinity College in the City of Dublin and the Trustees shall apply the Trust Fund in furtherance of such Trust.
(b)In furtherance of the foregoing objects to do all or any of the following things:
(i)To raise funds and invite and receive contributions from any person or persons whatsoever by way of subscription, donation and otherwise.
(ii)To purchase, take on lease or in exchange, hire or otherwise acquire and hold for any estate or interest any real or personal property and any rights or privileges which may be necessary for the promotion of the Charity’s objects or any of them and to sell, exchange, let, mortgage, dispose of, turn to account or otherwise deal with the same.
(iii)To borrow and raise money and secure or discharge any debt or obligation of the Charity in such manner as may be thought fit.
(iv)To do all such other things as may be necessary for the attainment of the Charity’s objects or any of them.
4. The Management of the Charity:
(a)The Trustees shall have the absolute management and entire control of the property of the Charity and the Trust Fund and may make, rescind and alter such regulations (not being inconsistent with this Scheme) as they think fit with respect to the purposes for which, the manner in which, the persons by whom, the terms and conditions on which and the times when the property of the Charity shall be used and otherwise as the Trustees shall think necessary for the purposes of the Charity or in connection with the execution of any of the trusts or powers contained in this Scheme.
(b)The Trustees shall be entitled where they consider it prudent and proper to allow any book, pamphlet, manuscript, report, map or other document or portrait comprising part of the property of the Charity to be displayed on a temporary basis separately from the remainder of the property of the Charity whether in and about Trinity College Dublin or elsewhere.
(c)The Trustees may from time to time open and maintain in their name a banking account or banking accounts at such bank or banks as they shall from time to time decide and may at any time pay any money forming part of the Trust Fund to the credit of any such account or accounts or place the same with any banker or bankers. Any money at any time subject to the trusts of this deed and requiring investment may be invested at the discretion of the Trustees in any of the investments for the time being permitted by law for the investment of Trust Funds with power for the Trustees at their discretion from time to time to vary any such investment or any other of a like nature.
(d)The Trustees shall be entitled to procure the services of an investment manager, who may be an individual or corporate body to advise them on the investment of the Trust Fund or any part thereof, and to fix the remuneration of such investment manager at such amount as shall be agreed with such investment manager.
(e)The Trustees shall be entitled to discharge out of the income of the Trust Fund the remuneration of the said investment manager and all expenses of or incidental to the employment of such investment manager or incurred by the Trustees in or about the management of the property of the Charity or the Trust Fund.
(f)The Trustees may at any time appoint upon such terms as they may determine a librarian and/or such other officers and servants as the Trustees shall deem expedient for any purpose connected with the trusts of this scheme and may at any time remove such librarian, officer or servant.
(g)The Trustees shall keep full, true and accurate accounts of all sums received and expended by them on account of the Charity and shall produce yearly profit and loss accounts, balance sheets and capital accounts, and such accounts shall be audited annually by auditors to be appointed by the Trustees for that purpose, with the approval of the Commissioners.
(h)The Trustees shall supply all such information regarding the carrying out of their functions herein as may be required by the Commissioners.
(i)The revenue account, balance sheet and capital account of the Trustees shall be available at all reasonable times for inspection by the provost, fellows and scholars of the college and the director for the time being of the National Library or any of them.
(j)In each year a copy of each of the accounts herein before mentioned shall as soon as may be possible be furnished to the Commissioners if requested and may be circulated to such other persons as the Trustees think fit.
(k)The Trustees may at any time appoint or make provision for the appointment of any persons (including the Trustees) as a committee for the purpose of discharging any function in connection with the property of the Charity or the management of the Trust Fund or otherwise in relation to the execution of the trusts of this scheme and in such manner and subject to such rules as the Trustees may determine. 6. General
(a)Copies of this scheme shall be printed and made available at a reasonable cost to any person interested.
(b)This scheme may be varied or amended from time to time on the application to the High Court by the Trustees, the Commissioners or the Attorney General. Appendix II Proposals for joint submission by Eastern Health Board & Trustees to High Court for purposes of cy-près scheme
(a)To preserve the literary and architectural integrity of this unique bequest, the Worth books will be reunited with the Worth Library and Doctor Steevens’ Hospital and the various portraits re-hung, on permanent loan from the Trustees under the supervision of the scheme.
(b)The library of Dublin University will undertake to act under the Trustees as de facto curator of the collection and will advise the Trustees and the Eastern Health Board on all aspects of the day to day management, use and preservation of the collection.
(c)In consultation with Dublin University Library, the Eastern Health Board shall provide and maintain free of charge the suitably equipped librarian’s room and separate study room for use by accredited scholars, immediately adjoining and having direct access to the Worth Library.
(d)The Trustees in consultation with Dublin University Library shall appoint a librarian to the Worth Library. The incumbent may be a senior member of the library staff of Dublin University carrying out the function of Worth Library librarian as part of his or her normal duties at Dublin University Library. The terms of reference, hours of attendance, and remuneration of the librarian shall be determined by the Trustees in consultation with Dublin University Library.
(e)The terms of the Worth bequest shall be altered to permit books from the collection to be temporarily removed from the Worth Library for maintenance, restoration or cataloguing by Dublin University Library or for scholarly research or inclusion in an appropriate exhibition mounted in Ireland or overseas upon such terms as to insurance and safe keeping as may from time to time be stipulated by the Trustees in consultation with Dublin University Library.
(f)The terms of the Worth bequest shall be altered to permit supervised access by members of the general public to the Worth Library in such manner and in such numbers as the Trustees in consultation with Dublin University Library shall from time to time permit; and the Eastern Health Board shall ensure that access to the Worth Library is available at weekends and during holiday periods when the National Museum is open to visitors.
(g)A full electrical infrastructure is already in position and the Eastern Health Board shall commission and install such security devices and smoke and fire alarms as may from time to time be advised by the Garda technical division or a reputable firm of security consultants in consultation with Dublin University Library.
(h)All heating, lighting, security, decoration, structural maintenance, cleaning (and insurance) costs, other than cleaning and maintenance of books and portraits (and insurance of the books and portraits) of the library, librarian’s room, research room and all approaches will be borne free of charge to the Trustees by the Eastern Health Board.
(i)The Eastern Health Board in its restoration of Dr Steevens’ Hospital has to the greatest degree possible, consistent with the structure and character of the listed building and library complied with the provisions of BS 5454 and has also fully complied with all the requirements of the chief fire officer. However, the Eastern Health Board shall put into effect any further reasonable recommendations of the Trustees in consultation with Dublin University as regards the safeguarding of the collection from fire, smoke, water or environmental damage.
(j)The Worth Librarian’s remuneration and the costs of cleaning, maintaining and restoring the books and portraits shall be defrayed out of a fund to be raised by public subscriptions and private sponsorship and for this purpose a support group known as “the Friends of Dr Steevens’ Hospital” has been formed and a company with charitable status to be known as “Dr Steevens’ Hospital Historical Centre Ltd” shall be incorporated.
(k)The court would be asked to appoint, as an additional Trustee, the chief executive officer for the time being of the Eastern Health Board or any successor of that board in which the ownership of Dr Steevens’ Hospital may from time to time be vested.
Re McEnery’s Estate
[1941] IR 323
Gavan Duffy J: This is an interesting will, and I am called upon to decide whether or not the testator’s bountiful provisions for the sons and daughters and male descendants of his brothers are valid, and, if not valid generally, whether or not they can be supported to a limited extent.
On the general question I shall assume, for the purposes of this case, that charitable purposes in law comprise those described, and those analogous to the purposes described, in the English Act of Elizabeth and the Act passed in the reign of Charles I for this country; both of those Acts have been repealed, though the Elizabethan classification has been kept alive by statute in England; I shall also assume, for the purposes of educational charity here, that there is, apart from certain religious questions, no substantial difference between the intent of the old English Act and that of the unintelligible Irish Act. The English Act speaks of the maintenance of schools of learning, free schools, and scholars in universities, and the Irish Act speaks of the erection, maintenance or support of any college, school, lecturer in divinity or in any of the liberal arts or sciences, and any other like lawful and charitable uses.
Observe the public character of all these purposes. No doubt the scope of statutes passed in another era has been expanded by judicial decisions, and the process has been marked by some inevitable inconsistencies, but Courts of Equity generally have been consistently insistent on the public character of legal charity, importing a benefit to the community, or a section of the community, in the eyes of the common law of the two countries, reproduced, we are told, in the statutes. The vagaries of the supposedly uniform law of charities may be illustrated by one extract from Serjeant Moor’s “Learned Reading.” appended to the edition of Duke’s “Charitable Uses” published in London in 1676: as to “Scholars in Universities,” he says: “These general words must be restrained to the particular Universities of Oxford and Cambridge; and to such students that study divinity, physick or law, not students in arts only, nor to any students of divinity in popery, etc,” and he explains that “Schools of Learning” do not include schools for catechising, because religion is variable and not within the statute. I was not surprised that counsel, insisting that the law of charities for Ireland and England, as explained by the two statutes, is identical refrained from drawing upon such authentic sources as Sir Francis Moor, who must have known more about the true purposes of the Act of Elizabeth than any of his contemporaries, if, as we are assured, he penned it. The fact is that we sadly need a modern, home-made statute for charitable trusts.
While some of the purposes associated with poverty in the Elizabethan Act seem to have a personal touch, perhaps the nearest approach to anything like an individual purpose in connection simply with education in either Act is in the maintenance of scholars in universities; I take that to have in view the foundation of scholarships, as “if one devise £10 a year for ever, out of his land, to maintain two scholars in Oxford and Cambridge,” though by nuncupative wills this shall be good (Duke, cap VI, case 29); but there is a wide gap between such an endowment at some university college and, for instance, a trust for the personal educational benefit, between the ages of 18 and 22, of the heir for the time being of a testator for ever, committed by the testator to his trustees; there is nothing public about that purpose and it would, in my view, be too narrow to be charitable; those prospective heirs would not constitute a section of the community for whom a charitable trust could be established.
In a search for precedent upon which, by Judge-made law, to establish the testator’s bounty here as an educational charity, reliance was placed in particular upon such cases as Spencer v All Souls’ College Wilm 163, Attorney-General v Sidney Sussex College 4 Ch 722, and In re Lavelle [1914] 1 IR 194, decisions showing that the founder of a charity or a benefactor may lawfully associate his descendants with his bequest to a charitable institution and thus enable them to participate in his liberality; those cases find their prototype in Griffith Flood’s Case Hob 136; Duke, cap VI, case 40, where it was laid down that the Act of Elizabeth, overriding the law of mortmain, allowed a man to make a devise to a college at Oxford, to find a scholar of his blood from time to time. But they do nothing to validate the very different provisions of our testator’s will.
The trust here is, in my opinion, too narrow to be charitable; the motive may have been charitable, but the intention was to benefit specific individuals, and the fact, though not conclusive, is worthy of note that, if the trust were good, each suitable beneficiary would appear to have an enforceable claim upon the trust, unless the number of suitable beneficiaries were so great a tax on the income as to give the trustees the special discretion allowed to them in that event. I mean that each male descendant of a brother, as he grows to manhood, if he rejects trade as a career for the moment and makes up his mind to qualify himself for an eventual archbishopric or chief justiceship or presidency of the College of Surgeons, will be entitled, on signifying his election, to call for £100 a year during a reasonable time to enable him to become a priest or barrister or surgeon, provided he be a suitable student and that his competitors be not too many.
It is just 200 years since Lord Hardwicke LC in Attorney-General v Pearce 2 Atk 87 declared that it is its extensiveness that constitutes a public charity: “a devise to the poor of a parish is charitable. Where testators have not any particular person in their contemplation, but leave it to the discretion of a trustee to chuse out the objects though such person is private, and each particular object may be said to be private, yet in the extensiveness of the benefit accruing from them they may very properly be called public charities. A sum to be disposed of by AB and his executors, among poor housekeepers, is of this kind.”
And a further difficulty in the present case is that touched upon by Mr Justice Barton in Laverty v Laverty [1907] 1 IR 9, that the trust would allow the trustees to pay £100 a year to a delicate descendant, at least if he needed this pecuniary help, to enable him to have a private “coach” in his father’s private house to steer him through the examinations for some specialised profession. I do not see my way to adopting Mr Sweeney’s ingenious suggestion that I should validate an invalid trust by reading it as requiring the trustees to establish a number of scholarships, either in some university or elsewhere; that would mean resorting to the cy-près doctrine in order to convert a non-charitable into a charitable trust, at the expense of the persons lawfully entitled. You cannot, under cover of cy-près, rob Peter to pay Paul.
As to In re Rayner 89 LJ Ch 369, also relied upon by Mr Connolly, the gift to educate the children of Maple’s numerous employees took in, no doubt, a field wide enough to cover a section of the community, who were, moreover, people “comparatively poor” within Lord Bramwell’s definition of a charity in Pemsel’s Case [1891] AC 531, at p 564.
I pass now to the argument in favour of a limited validity for the trust. It is urged that at least those sons and daughters and male descendants of brothers who were alive at the death of the testator are entitled to benefit. Unhappily the gifts to these beneficiaries, if severable, are subject to multiple contingencies; any beneficiary to enjoy the gift must:
(a)survive the testator’s widow and tenant for life;
(b)by reason of the codicil, survive the time, at testator’s death necessarily uncertain, when, after her death, the income of the trust fund shall have proved sufficient to pay legacies amounting to £620;
(c)and, at or after that time when the income has become available, be about to enter, as a suitable student, upon a profession and ask for the testator’s annuity to enable him to obtain his profession – incidentally I do not think he will be qualified, if at that time in affluent circumstances, but my decision is given quite independently of this view, which turns on the word “enable”; and he must
(d)take his chance of selection by the trustees in case the legitimate competitors for an annuity shall be more numerous than the number of £100 units produced for the time being by the income of the fund, the single trust fund intended to produce all the annuities.
It is very difficult on the language of the will to discern more than one class here, the single, though composite, class for whom, as ascertained from time to time, the single trust fund is established. It is impossible to say with certainty in advance how many years may elapse before a potential beneficiary may wish to enter a profession, unless one has regard to the actual state of the families concerned at testator’s death and that I cannot do – indeed, I could only find probabilities, if I did: the first beneficiary entitled to claim and receive an annuity may be a person unborn at the death of the testator; and participation by any beneficiary depends upon the amount of available income and the number of competitors and his selection, if they are too many, by the trustees, and that may first happen at too remote a time. On principle the case seems indistinguishable from Moore v Moore 6 Jones Eq 132, as summarised in par. 396 of Gray on Perpetuities (3rd Edn.), except that that case appears to have been concerned with payments out of capital; for a case of annuities out of income void under the rule against perpetuities, see In re Gassiot 70 LJ Ch 242; see also In re Whiteford [1915] 1 Ch 347, where the limit was cut down by a special power, but the same principle as to uncertainty applied.
The fifth rule in Cattlin v Brown 11 Hare 372, at p 377, relied upon by Mr McCarthy, has no application, because the annuity desired by a particular beneficiary may be, not merely diminished, but withheld in case of a deficiency of income to meet all the demands of the competing students: nor is the time fixed when distribution depending on a personal penchant for a profession of a suitable student, is to begin. And, as Mr Ryan pointed out, the difficulty of escaping from the general rule under any exceptional sub-rule is greatly increased by the testator’s restriction of his bounty to suitable students.
Accordingly, much as I should have liked to hold for a limited validity of the testator’s gift, I cannot see my way to upholding it at all. (Pearks v Moseley 5 AC 714.)