Charitable Objectives
Statute of Charitable Uses Act
Preamble
Whereas Lands, Tenements, Rents, Annuities, Profits, Hereditaments, Goods, Chattels, Money and Stocks of Money, have been heretofore given, limited, appointed and assigned, as well as by the Queen’s most excellent Majesty, and her most noble Progenitors, as by sundry other well disposed per sons; some for Relief of aged, impotent and poor People, some for the Maintenance of sick and maimed Soldiers and Mariners, Schools of Learning, Free Schools, and Scholars in Universities, some for the Repair of Bridges, Ports, Havens, Causeways, Churches, Sea-Banks and Highways, some for the Education and Preferment of Orphans, some for or towards Relief, Stock or Maintenance for Houses of Correction, some for the Marriages of Poor Maids, some for Supportation, Aid and Help of young Tradesmen, Handicraftsmen and Persons decayed, and others for the Relief or Redemption of Prisoners or Captives, and for Aid or Ease of any poor Inhabitants concerning Payments of Fifteens [a tax on moveable property], setting out of Soldiers and other Taxes; which Lands, Tenements, Rents, Annuities, Profits, Hereditaments,Goods, Chattels, Money and Stocks of Money, nevertheless have not been employed according to charitable Intent of the givers and Founders thereof, by reason of Frauds, Breaches of Trust, and Negligence in those that should pay, deliver and employ the same: For Redress and Remedy whereof, Be it enacted …
Cases
O’Byrne v Davoren
[1994] 3 IR 373
Murphy J: This is a claim by the above named plaintiff as executor of the will dated the 13th May 1967 of Mary Davoren, deceased, who died a spinster on the 8th December 1990 for the determination of certain questions arising on the construction of the deceased’s will.
The residuary bequest contained in the said will is expressed in the following terms:
“I give, devise and bequeath all the rest, residue and remainder of my estate both real and personal unto my TRUSTEES UPON TRUST to sell, call in and convert the same into money (with power in their discretion to postpone such sale, calling in and conversion as hereinafter set out) and after payment thereout of my debts, funeral and testamentary expenses to hold the residue UPON TRUST for the post-primary education of such of the under mentioned as my trustees as in their discretion shall decide will be likely to benefit most namely:
The grandchildren and direct descendants of James Nagle of Castletown, Carron.
The children and direct descendants of Patrick (Burke) Davoren of Kilcorney and of his brother Austin Davoren, Whitemount, Corofin and also the children and direct descendants of Michael Davoren of Ballyaliban, Ballyvaughan and of his brother Martin Davoren of Cahirconnell and also the children and direct descendants of John Davoren of Ennistymon (born at Ballyconnoe) and of his brother who married Miss Rynne and who resides at Ballyconnoe in the County of Clare.
AND I DECLARE that my said trustees may in their absolute discretion decide which of the aforesaid children may benefit and also decide on the secondary, technological or university colleges or professional institutions where the aforesaid children take their courses AND l DECLARE that it is my intention that the income of the trust should be applied in the first instance for payment of fees and provision of textbooks and secondly for the maintenance while attending such schools, colleges or courses AND I DECLARE that my executors may postpone the sale, calling in or conversion of any part of my real and personal estate for such period as they in their absolute discretion may deem fit notwithstanding that it may be of a wasting, speculative or reversionary nature.”
The first named defendant, Michael Davoren, is sued as representing those persons who are potential beneficiaries under the residuary clause and the second named defendant, Anne Coughlan, who is a niece of the deceased, was joined as a defendant to represent those persons who would be entitled to benefit in the event of the residuary estate passing as on an intestacy.
In these circumstances three questions were canvassed, namely:
(1)Whether the residuary bequest aforesaid constituted a valid charitable gift.
(2)Whether the bequest offended the rule against perpetuities.
(3)Whether the bequest failed for uncertainty.
Having regard to the decisions in In re McEnery [1941] IR 323; In re Compton [1945] Ch 123 and Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297 it was conceded by all parties that the gift could not be sustained as a valid charitable bequest as it did not possess the requisite public character.
The first question to be addressed is the extent of the class from which the particular beneficiaries may be chosen. Is the class confined to the particular categories of relations of the identified persons living at the date of death of the deceased or could relations of the particular kinship born after that date benefit from the trust? If the class did not close as at the date of death of the deceased then the class would be susceptible of enormous variations either by expansion or contraction and this would raise questions as to whether the gift possessed the requisite degree of certainty either on the basis that it was a beneficial trust or what is described as “a purpose” trust. However, the answer to that question is even more important in the context of the rule against perpetuities. If the class did not close as of the date of death then there could be no doubt at all but that the rule was breached and the gift void ab initio.
The widest and remotest of the degrees of kinship referred to in the bequest are the “descendants”. That word was defined in Halsbury’s Laws of England (4th ed) Volume 50 at paragraph 521 in the following terms:
“Whatever may have been its meaning in earlier times, ‘descendants’ now ordinarily refers to children, grandchildren and other issue of every degree of remoteness in descent. Although the word may be confined to mean children by a sufficiently strong context, the court does not restrict the word to that sense merely because the testator speaks of the descendants taking their parents’ share.”
It would appear from the same textbook that such misgivings as may have existed about the meaning of the word “descendants” in earlier times concerned whether or not collaterals were included within its meaning. It does not ever appear to have been doubted that descendants included issue of every degree of remoteness in descent. That being so a gift to descendants if not otherwise qualified expressly or by implication would appear to include all children of children indefinitely and without limit. It was argued by counsel representing the potential beneficiaries under the will that the class should be treated as having closed at the date of death of the deceased on the basis of the rule in Andrews v Partington (1791) 3 Bro CC 401. It cannot be doubted that the law favours an early as opposed to a later vesting of interests in property. Whilst this rule has been criticised many times it has endured for over two hundred years. Under the rule it is presumed that where there is an immediate gift to a class without any provision as to the time of this vesting then if any members of the class are born at the time of the testator’s death they take to the exclusion of after born members. It is, however, accepted by counsel on behalf of the potential beneficiaries under the trust that this rule could not be applied directly to the facts of the present case as there is no gift to the members of the class but merely an obligation on the trustees to employ the trust funds for a purpose which would be of benefit to some members of that class. In the circumstances the argument under this heading can be put no further than saying that the rule in Andrews v Partington might be applied by analogy.
In any event the identification of the class or more correctly the date as of which it is to be ascertained is essentially a matter for the construction of the will itself with the aid of the appropriate principles governing such construction. Unlike the wills in In re Compton (above) and Kilroy v Parker [1966] IR 309, the residuary bequest in the present case gives no specific guidance as to when the relevant class is to be ascertained. In the Compton case there was a trust for education of descendants of three named persons and it was expressly provided that the trust was to be “forever”. In Kilroy v Parker where income from a fund was to be paid amongst the testator’s necessitous nieces and nephews and their children, it was expressly provided that the nephews and nieces who might benefit were those “alive at the date of my death”.
The researches carried out by the executors have established that the number of persons who would constitute the class of potential beneficiaries if it were to be established as of the date of death of the deceased would be in the order of sixty. Moreover, it would be possible to estimate with reasonable accuracy the capital and likely income of the trust fund. However, these are not factors which are of much assistance in ascertaining the wishes of the deceased. It seems to me that the only guidance to be obtained from the will of the late Mary Davoren is the express trust for the sale and conversion of her residuary estate and the payment thereout of her debts, funeral and testamentary expenses and the additional and express declaration that the trustees might “postpone the sale, calling in or conversion of any part of my real and personal estate for such period as they in their absolute discretion may deem fit, notwithstanding that it may be of a wasting, speculative or reversionary nature”. Whilst those provisions have some significance it is obvious that they represent standard machinery to facilitate the administration of the estate and the trust fund to be created thereout. In particular the express power to postpone the realisation of the estate – even estate of “a wasting, speculative or reversionary nature” – is clearly a protection for the trustees who might otherwise be liable for a breach of their duty rather than an indication of some particular policy or intention on the part of the deceased. Apart from the purpose of the trust and the selection of the beneficiaries the only special if somewhat ambiguous provision of the residuary bequest is expressed in the following terms:
“And I declare that it is my intention that the income of the trust should be applied in the first instance for payment of fees and provision of textbooks and secondly for maintenance while attending such schools, colleges or courses.”
As it is clear that both the capital and income of the residuary estate are subject to the trusts declared by the deceased the question must be asked, why did the deceased focus attention in this very specific way upon the manner and order in which the income of the trust fund should be applied. It seems to me that at the very least the deceased intended that the capital of the fund should be conserved if not actually preserved. It would be meaningless to prescribe an order in which resort was to be had to income if the trustees had an unfettered discretion to resort to capital for any of the purposes identified in the foregoing declaration. Such an action would appear to frustrate the wishes of the testatrix without expressly defying them. By this special declaration it seems to me that the testatrix revealed an expectation and intention that recourse would be had primarily to the income of the fund with a view to conserving the capital as a fund for indefinite duration. Moreover, this has a certain logic. The testatrix would not wish her trustees to deplete excessively the trust fund at any one time when their task would involve a review of their duties and an exercise of their discretions over a long period of time. When one accepts the concept of preserving the capital of the trust fund over a lifetime or even the infancy of the youngest members of the class living at the date of death of the deceased, the question would then arise as to how or why the trust should be wound up and the balance of the capital and income distributed amongst a diminishing class. It seems to me that the logic of the situation as best it may be inferred from the very limited evidence available, is that the testatrix intended to create a fund which would be available indefinitely for the children, grandchildren and descendants whenever born of the persons named in her will, and such a gift is unfortunately invalid as contravening the ancient but still respected rule against perpetuities.
Whilst that conclusion disposes of the issue as to the validity of the bequest I think it may be helpful having regard to the arguments which were addressed to the court (and to the state of the law on the topic) to express my views on the other issues raised.
Prior to the decision of the House of Lords in McPhail v Doulton [1971] AC 424, it was generally accepted that the objects of a trust must be certain, that is to say, that the language employed must be certain and that the trustees must at any time be able to ascertain definitely the persons who would have a vested interest in the capital and income of the trust property. On the other hand where the trustees were not bound by a trust but merely a power or discretion whether to confer or withhold a benefit then the requirement of certainty was recognised as being far less stringent. These rules appeared clearly from the decisions in IRC v Broadway Cottages Trust [1955] Ch 20 and In re Gulbenkian’s Settlement Trusts [1970] AC 508. As Lord Upjohn pointed out in the Gulbenkian Settlement case (at p 521) the then recent authorities were to the effect that:
“… the rule is that, provided there is a valid gift over or trust in default of appointment … a mere or bare power of appointment among a class is valid if you can with certainty say whether any given individual is or is not a member of the class; you do not have to be able to ascertain every member of the class.”
In the comprehensive judgment of Budd J in Kilroy v Parker [1966] IR 309 he accepted and applied that principle (at p 318) in the following terms:
“From a perusal of this case and those referred to therein, I am satisfied they establish in cases of the type under review, on the one hand, that in cases where the trustees have a duty to distribute the income in question it is essential that they should know, before they perform their duty, who are the potential beneficiaries among whom they have the right of selection, and, on the other hand, in the case of a power with a gift over that there is no reason why trustees, before exercising their power, should have to be able to survey the whole field of objects. The practical result is that a mere power to apply income for the benefit of the members of a class, all of whom cannot be ascertained, with a gift over in default, is valid, and an appointment can validly be made to a person who can properly be said to be a member of the class. But an imperative trust for the division of income between such members of the class as the trustees may select is invalid unless the whole class of potential beneficiaries can be ascertained. It is not suggested, nor do 1 think it could be, that there is any distinction in principle between English and Irish law on these matters.”
The statement contained in the final sentence quoted above ceased to be true as and from the decision of the House of Lords in McPhail v Doulton (above). In that case the House of Lords by a majority of three to two overruled the decision in the Broadway Cottages case and held that the test to be applied in determining the validity of imperative trusts was substantially the same as that applicable to discretionary trusts. That is to say, the trust was valid if it could be said with certainty that any given individual was or was not a member of the class designated as potential beneficiaries.
Not only is the judgment of the late Budd J a precedent of greater authority for me than a judgment (particularly a majority judgment) of the House of Lords but I confess that I find the reasoning of the Irish judgment (and indeed the earlier English judgments) more convincing than that contained in what was admittedly a conscious effort at law reform made in the McPhail case.
In the Kilroy case the court had to consider a trust to distribute the income of a fund amongst the necessitous nieces and nephews of the deceased and such of their children as the executors might think fit. As I have already remarked the category of nieces and nephews were expressly identified in the will as those being alive at the date of the death of the testatrix. It was, however, an imperative trust though confined to the income of the fund accruing over a period of ten years from the date of death of the testator. In those circumstances no question arose with regard to the rule against perpetuities nor in the identification of the class of potential beneficiaries insofar as it consisted of nephews and nieces of the testator, living at his death and their children. The major problem related to identifying and perhaps re-identifying the “inner” class of necessitous nephews and nieces. What degree of poverty or hardship is involved in that adjective? Was the standard to be an objective one or in some way related to the standard of living of the testator? What was to happen if during the ten years during which the income of the trust fund was to be distributed the financial circumstances of particular nephews or nieces altered significantly? To my mind a significant feature of the judgment is the dedication and determination with which Budd J addressed and resolved those and other difficult problems.
Having accepted the need for certainty in the creation of the trust Budd J considered the principles upon which a court approaches the problem of having to decide whether or not a gift is to be held void for uncertainty. He pointed out (at p 320) that:
“The difficulties in interpreting a disposition which is ambiguously expressed are not enough to render the disposition void for uncertainty. To be void for this reason it must be utterly impossible to put a meaning on it.”
He went on (at p 321) to quote a passage previously cited with approval by Murnaghan J in the following terms:
“Another principle is equally clear: we ought not, without absolute necessity, to let ourselves embrace the alternative of holding a devise void for uncertainty. Where it is possible to give a meaning, we should give it, that the will of the testator may be operative; and where two or more meanings are presented for consideration, we must be well assured that there is no sort of argument in favour of one view rather than another, before we reject the whole.”
He accepted, as all of the parties would, that the presumption is that “when a man makes his will he does not intend to die intestate as to any part of his property”.
It was those principles which imposed on the learned judge the duty to seek a construction of the will and an approach to the problems canvassed in relation to the administration of the trust which would resolve ambiguities and uncertainties where this was compatible with the expressed or implied wishes of the testator. Whilst the particular facts of the Kilroy case are unique, the significance of the judgment of Budd J thereon, as I see it, is the determination with which he sought to salvage the validity of the particular testamentary trust notwithstanding the difficulties created by the manner in which the testatrix had expressed her intentions. Again I would respectfully agree that the learned judge was entirely correct in that course and as far as possible I believe that a similar approach should be taken in the present matter. It is noticeable that Budd J recognised that the class of potential beneficiaries might fluctuate from year to year as would happen in the present case depending upon the educational requirements of the relatives of the persons designated by the testatrix. It was of that problem that the learned judge said (at p 334):
“The fact that the class in the present case may fluctuate does undoubtedly increase the difficulty of ascertaining the class, but difficulties and impracticalities should not be allowed to stand in the way if by any possibility the trust can be executed.”
It seems to me that the helpful decision of Budd J in Kilroy v Parker would be of decisive importance in upholding the validity of the residuary bequest in the present case if but only if, the class of relatives out of whom the beneficiaries were to be selected was limited to those living at the date of death of the deceased and as I have held that the contrary is – regretfully – the true construction of the will, my conclusion in this regard can be of no comfort to the designated class of beneficiaries.
In the circumstances it seems to me that the questions raised in the statement of claim herein should be answered as follows:
(a)The trust purported to be created by the residuary clause does not constitute a trust of a charitable nature.
(b)The words creating the trust are sufficiently certain for that purpose.
(c)The terms of the trust do offend against the rule against trusts of perpetual duration.
However, I will hear the parties in relation to any matter of detail as to how the questions raised should be dealt with.
Boyle v Boyle
Vice-Chancellor’s Court.
17 July 1877
[1877] 11 I.L.T.R 130
Chatterton V.C.
Chatterton V.C.
The words of the gift, on which the questions I have to decide arise, are as follow:—“My executors are to take to themselves a discretionary sum to pay them for their trouble, and to apply the residue to works of charity, such as Masses for the eternal repose of my soul, and whatever else they may judge most charitable.” The next-of-kin of the testator contended that this gift is void for uncertainty. It would, of course, have been impossible to support this contention but for the occurrence of the words pointing to Masses, as otherwise there was an express general charitable intention which could be executed or controlled by this court. It has, however, been established by the case of the Attorney-General v. Delaney (10 Ir. L. T. R. 34) that a legacy for Masses is not a legacy for a charitable purpose, in the sense in which the court considers gifts for charity. The testator, consequently, has shown that he does not use the expression “works of charity” in its legal acceptation; for by his own interpretation of it he extends it to a purpose not charitable. If the gift for Masses were valid, it would have been open to the executors to apply the whole subject of the gift to this purpose—that is to say, otherwise than for charity. I had occasion in the recent case of Coppinger v. Grehan to consider the authorities upon the subject of uncertain gifts not exclusively charitable, and I need only now say that, in my opinion, the rule is that when the purpose of a testamentary gift is uncertain, and the gift if not charitable would therefore fail, and it appears sufficiently that the legatee is not intended to take beneficially, but upon trust, it will be supported by this court and carried out, where the terms of the gift are such that the legatee is bound to apply it wholly to purposes strictly charitable; but that, when there is a discretion given to a legatee to apply it to charitable purposes, and also to purposes not charitable, and the trust is indefinite, the gift fails, and the benefit of the trust results to the residuary legatees, or next of kin, as the case may be. The question is not, as Sir William Grant says, whether the trustee may not apply it to purposes strictly charitable, but whether he is bound so to apply it? Here, from the terms of the gift, the executors are at liberty to apply any part, or the whole of it, to purposes not charitable in the legal acceptation. It is not a case within the principle on which Doyley v. The Attorney-General (3 Vin. Abr. pl. 16), and Salusbury v. Denton (3 K. & J. 529), were decided; for it is not a gift to certain definite objects, and to charitable purposes, in which case the subject of it may be divided between the two. Here the executors were not bound to apply any part to purposes strictly charitable, and the trust is altogether of an indefinite character. I am, therefore, of opinion that upon this ground the gift fails. But there was another ground of objection to this gift, which was fully argued, and upon which, as it raises a question of importance, I feel bound to give my opinion. It turns upon the 16th section of the Charitable Donations Act of 1844, which enacts that no donation, devise or bequest, of land for pious or charitable uses in Ireland shall be valid unless executed three calendar months at least before the death of the person executing same. In this case the principal portion of the property the subject of this bequest was leaseholds for years, which have been since sold, and the proceeds brought into court. The testator died within three mouths from making his will. It was contended for the next-of-kin that, supposing this gift was not void for uncertainty, it is void as to the produce of the lands, under this Act, as being a gift for a pious or charitable use. It was argued on the other side that the Attorney-General v. Delaney (10 Ir. L. T. R. 34) decides a gift for Masses not to be a charitable gift; and that the words pious and charitable in this section must be taken as synonymous, and accordingly that the gift is not within the statute. But the words are used in the disjunctive, “pious, or charitable uses,” and I see no reason for construing “or” as “and.” I am clearly of opinion that the Act was meant to invalidate, and does invalidate, under the prescribed circumstances, gifts of land, whether for charitable purposes or for pious purposes. It was next urged that the saying of Masses for the soul was not a pious purpose. The judgment of the Lord Chief Baron in the Attorney-General v. Delaney (ubi supra) takes a plain distinction between pious purposes and charitable purposes in their legal acceptation, and shows that pious purposes may not be charitable purposes, which cannot, with propriety of language, be termed pious purposes. I cannot conceive any purpose more strictly pious in the eyes of a Roman Catholic than the saying of Masses for the repose of himself or others. The Chief Baron puts this in the strongest way in his judgment. If a gift for Masses were not to be held within the protection of this statute, it would leave donors and testators without protection in the very case where they would be most likely to need it. There is no purpose, I think, for which a Roman Catholic would be more likely, if in a dying state, to leave his property than to have Masses said for his soul. I am, therefore, of opinion that the saying of Masses, though not a charitable, still is a pious purpose, within the meaning of the Act. It was, also, contended that the gift in the present case did not come within the Act, because the will does not in express terms confine the charitable or pious purposes to Ireland. The argument was that, unless a donor or testator expressly declares that the pious or charitable purposes for which he makes his gift are to be carried out in Ireland only, the Act does not apply. This would give a very narrow construction indeed to this important enactment, and would render it inoperative in the great majority of such cases. Here I find a testator domiciled in Ireland, making his will in Ireland, disposing of property all of which was in Ireland, and yet, according to this argument, because he did not name charitable or pious purposes capable of being carried out only in Ireland, or expressly say that those purposes were to be carried out only in Ireland, his gift is not within the Act. This Act differs materially from the 5th & 6th Vict., cap. 82, which was under consideration in the Attorney-General v. Hope (2 Ir. L. T. 353), which cannot therefore be regarded as an authority applying to this case on the one side or the other. The evil intended to be guarded against in the Charitable Donations Act was the giving of property to charitable or pious uses immediately before the death of the donor. The property intended to be protected was property in Ireland, and that intention can be best given effect to by holding that the words “in Ireland” apply to the words “donation, devise, or bequest.” There is nothing ungrammatical in so applying them. The words “donation, devise, or bequest for pious or charitable uses” taken together form the description of the class of gifts intended to be affected, and then the words “in Ireland” apply to the whole of that class so described. If, therefore, this gift were not void on the first ground, I should hold to be so, as regards so much of the fund as consists of the produce of land, upon the second.
Beresford v Jervis
[1877] 11 I.L.T.R 128
Sullivan M R.
January 18, 1877
Sullivan, M.R.
I am clearly of opinion that the gift here is not a charitable gift, being one which in the strongest manner violates the law against perpetuities. The grounds of my decision in Dillon v. Reilly were shortly these:—A perpetuity was sought to be established in relation to the saying of Masses for an individual soul. I considered that that was no charity. There was no direction in that will, as well as I remember, that the Masses should be said in public. I adverted to no such distinction. No such idea was in my mind. I considered that within the rules of law a bequest to say Masses for the soul of an individual was not a charity, and that you could not constitute a perpetuity for that purpose. Since that case a case was decided totally independent of it, and rightly independent of it, because it is reported so shortly and so concisely that it is difficult from the report of the case (Ir. R. 10 Eq. 152), unrevised by me, to see precisely what my mind was directed to when I pronounced that decision. Since I did so the Court of Exchequer had the question raised in a formal manner before them in The Attorney-General v. Delany, 10 Ir. L. T. Rep. 34, by a will, the language of which is as follows:—[His Lordship read the bequests referred to]. The Crown claimed the legacy duty payable upon these bequests, and Dr. Delany objected to that claim on the ground that no legacy duty was assessable upon a charity; and in a form different from that in which the question was raised before me, but, tending towards the same point, the Court of Exchequer had to consider whether that gift was charitable or not. The Court of Exchequer unanimously held that a bequest to a particular clergyman, to have Masses offered up for the repose of a particular person, is not a charitable gift at all. That is a judgment entitled to the greatest possible weight in my opinion, and it is made demonstration itself by the able judgment of the Lord Chief Baron delivered in that case.
No doubt, the gift before me differs, as every gift of this character differs, from every other gift. To show what are the precise differences I shall read the exact words:—“It is my will that upon every Sunday in every year, if possible, at the hour of nine o’clock, the Holy Sacrifice of the Mass shall be offered for the happy repose of the precious souls of my beloved parents, Michael and Sarah O’Brien, and for the soul of me, their daughter; which Mass, and all the others I herein mention, I direct may always be said in the Roman Catholic Chapel of Wexford, in the burial ground of which lie, in a monument, the hallowed remains of my ever-loved parents; and I request that the Rev. Mr. Lawrence Cosgrave will, while or whenever he can, say the Mass on the Sabbaths in the above-named Chapel for my treasured parents’ souls, and for the soul of me, their daughter. It is my will that on the first day of every year the Masses of the day shall be said for the happy repose of the souls of my beloved parents, Michael and Sarah O’Brien, and for the soul of my uncle, Patrick O’Brien, who died at Calcutta, in the East Indies. It is my will that on the 14th day of every January the Masses of the day shall be said for the souls of my dearest parents, and for the soul of me, their child. It is my will that on the 17th day of every January the Masses of the day shall be said for the precious souls of my dear parents, Michael and Sarah O’Brien, and for the soul of me, their daughter. It is my will that on one day in every February the Masses of the day shall be said for the happy repose of the dear souls of my dear parents, and for the soul of my beloved father’s brother, William O’Brien. It is my will that on the 23rd day of every March the Masses of the day shall be said for the happy repose of the dear souls of my best of parents, and for the soul of me, their daughter. It is my will that on the 5th day of every April the Masses of the day shall be said for the souls of my dearest parents, Sarah and Michael O’Brien, and for the soul of me, their daughter. It is my will that on the 6th day of every June the Masses of the day shall be said for the repose of the souls of my dear parents, and for the soul of my uncle, Lawrence O’Brien.” In similar language she proceeds, and then adds:—“After my trustees have arranged from a sufficient proportion of the interest of the £750 worth of shares for the annual payment of the sum of £19 18s. 4½d. for the saying of those Masses I have herein specified as being my will, shall be said every year; and also for the candles to be provided for those days when the day’s Masses are to be said (which £19 18s. 4½d. will pay for the said Masses and candles); then I direct my trustees to appropriate from the interest of the £750 worth of shares yearly sums for the purpose of keeping in order the monument of my angelic parents, which is in the Roman Catholic burial ground of Wexford; also for keeping in order the tomb of my uncle, Patrick O’Brien, which is, I believe, in the burial ground of Chowzinghee—he was 4th officer of the East India Company’s ship ‘Sir William Puttney’—likewise for keeping in order the grave of my dear grandmother, Mrs. Ann Dawson, which grave is in the churchyard of Hackney, near London, and can be known by these words on the headstone—‘Sacred,’” &c., &c. “Whatever yearly sum of interest there remains arising from the £750 worth of shares I direct my trustees will pay yearly to my daughters, Helen Martin, Ann Strong, and Emily Sarah Strong, equally divided between them, freed from the control of their father, or any relation, connexion, friend, or acquaintance of his, and also freed from the control of her husband; and whichever sister survives the others, the remaining sister I enjoin is to receive her deceased sister’s share; and when those my daughters, Helen Martin, Ann Strong, and Emily Sarah Strong are both dead, the amount of the interest of shares I have directed to be paid yearly to my daughters shall be appropriated while this world lasts for the sacred duty of saying Masses for my precious parents’ souls, for the soul of me, their daughter, and for the souls of my grandfather and grandmother.”
That she intended a perpetuity is manifest. That she wished to have Masses offered up for ever is manifest. The only distinction that can be drawn between this will and that which the Court of Exchequer had before it is that she directs here that those Masses shall be said in the Roman Catholic Chapel of Wexford. In my opinion, that is no substantial distinction. Under this will a religious and pious lady sought to do that which the law will not allow her to do. It is not that the law is directed against the celebration of Masses. Perpetuities are attempted to be *129 created under every form which the human mind is capable of expressing. But the question is, is it a charity? If not, the perpetuity is void. I have said here before, again and again, that when I find a rule of law once established—and now-a-days it is difficult to get it established—it will not be my duty or office to destroy it by nice distinctions, but to support it in broad and wide lines. The Chief Baron in his very able judgment touches the point in a marked and decisive manner. At page 41 of the report in the Irish Law Times he says:—“It being clear that some religious purposes are within the statute of Elizabeth, and that all religious purposes are not, where is the line to be drawn? I am of opinion that a gift for a religious, or for any other purpose, to be charitable within the statute of Elizabeth, must, to some extent at least, be in the nature of a general public use.” Again, at page 42, he says:—“To constitute a charitable use, in analogy to the statute of Elizabeth, the purpose must be one which the Court itself can ascertain and declare to be public, or beneficial to the public. It cannot, in my opinion, derive the element of public benefit from the efficiency, spiritual or temporal, which, according to the faith of the testatrix, the religious act may possess.” I entirely concur in those two passages as being a correct exposition of the law of charitable uses. Acting on that judgment, it will be my decision that in this case there is no distinction deducible from the fact that she directed the celebration of the Mass to take place in the Roman Catholic Chapel of Wexford. I hold myself free to determine, if the question arises, whether, if a testatrix directs Masses to be said for individual souls, and directs them to be said in public, that, as a charitable gift, stands or falls. That question will be decided when the point is properly raised. The Barons of the Exchequer decided the case before them, and not matters which had not arisen before them. I am not to be taken as giving any colour to the distinction in my observations. That is not the case before me. I, therefore, hold this bequest to be totally void. Sir J. Romilly expressly held that a gift of a sum of money for repairing a particular monument in churchyard is bad: Ricard v. Robson, 31 Bea v. 244; Fowler v. Fowler, 33 ib. 616; and, therefore, I hold that such bequests in this case care bad also.
The Attorney-General v Kelly and Others
Rolls Court
11 July 1874
[1877] 11 I.L.T.R 131
Sullivan M.R.
Judgment reserved.
Sullivan, M.R. (after referring to the facts of the case).—It is manifest that the testator thought that the deaths would have taken place in a different order; he thought his wife would die first. The contingency which has happened was not contemplated, and has given rise to a very serious question as to the time that the charitable bequest is to take effect, and as to the amount of effects it is to operate upon. The will must receive a construction according to the plain meaning of the language used. There is no doubt that, whatever Dr. Bennett was to take, he took a vested interest under the will. The testator, in the event of Dr. Bennett dying and not leaving issue, said, “then in such event I will and bequeath” all the principal to the clergymen, &c. The conclusion I have arrived at is, that “then” marks the period once and for all. The result is that all the interest Dr. Bennett took became liable to be disposed of in charitable uses by the clergymen administering there for the time being, and that means at the death of Dr. Bennett. That makes the whole of the bequest intelligible from the begining to the end. If the clergymen were there, they would take whatever portion was free in præsenti, the remaining portion after the death of the tenant for life. My opinion is that M’Evoy, Moore, and Mathews are the clergymen marked out as the trustees of this bequest. The Rev. Mr. M’Evoy is deceased, but the trust survives to Moore and Mathews. The words “for the time being” having once got that interpretation in this clause, and there being nothing less inconsistent, they must bear the same interpretation all through the will where they are used. If the other construction were adopted, which points to a succession of different clergymen from time to time, we should be landed in a perpetuity, and the result might be the destruction of the property. That is a construction I am not disposed to adopt, if I can see my way within the law to the other. Ample time was given by the Board to make an arrangement between the parties before they proceeded with this information. I have found it difficult to understand the letter of the Rev. J. Kelly in which he alludes to lodging the money in the Court of Chancery, and to his “safe conscience” and his oath. His holding the money in his hands was preventing the charity being carried out; he was told by counsel that he should lodge it in the Court; the action of the Court of Chancery would be to direct the intentions of the testator to be carried out in some way. The intention was that by some means the money should be applied to some charitable object, and there was no chance of a scheme being agreed upon unless there was some controlling power. It would not have been a violation of his oath, but the very step he should have taken to preserve his conscience safe. It appears that he took the dividends out of the funds, where they ought most unquestionably to have been left. As to the statement about the revolution, the idea is absurd, for he left the principal there, and only took out the interest. I think it was his determination to show that he was master of the money; there is a clause in the will where the testator gives power to his executors to take out the principal if it appears to be insecure, but that only deals with the principal, and applies to the executors as a body and not to him. If the question arising on this will were a clear one, and if this were not a case where it was necessary in any event to come before the Court, I should have made Kelly, for that breach of trust, pay the whole costs of this information. There was no idea of dishonesty, but why he should have taken it out, except to show that he was determined to do as he liked, I cannot conceive. The money was standing in the name of one trustee, which this Court never allows, because his death may occur, and his representative may be dishonest and may sweep the money out of the bank in a moment. This Court seeks to aid the testator’s wishes, not to control them. It is a difficult thing to oust the control of this Court over charities. Where a testator vests in his friend a sum of money to administer to pious uses, this Court never dreams of controlling this man in the administration of the fund so long as it is within pious uses; but if the trustee puts it into his own pocket the Court will interfere. The testator may have had it in his mind that these clergymen would apply it to an illegal object, but I have nothing to do with that. My duty is to carry out to the utmost limits the benevolent intentions of the testator. It was suggested on the authority of Archbold v. Commissionors of Charitable Donations, 2 H. L. 440, that the Commissioners act within a limited jurisdiction, only over withheld, concealed, or misapplied charities. There is a great deal to be said on that point. A very important jurisdiction is conferred upon the Board—namely, to look after charities which are not working, and to put the Attorney-General in motion in such cases. This was a case which called most decidedly for their interference I shall not transfer the money to the Commissioners. I might direct it to be paid to the two survivors and leave it to them to do what they liked with it. The other course is to direct the money to be brought into this Court, and to direct the survivors to bring in a scheme for carrying out the charity; and that is the course which I shall adopt. As to the costs of this case, I shall allow all the parties their full costs except the Rev. J. Kelly. In this case it is clear that there must have been a suit in some form or another in this Court; and the Rev. Mr. Kelly has acted with thoroughly honest intentions. I will allow him the costs of the cases he submitted to counsel. But I cannot pass unnoticed the act of a trustee taking trust-money from the bank and lodging it in a private bank; and he must, therefore, abide his own costs of the information and answer, but I will allow him his subsequent costs.
In pursuance of this decree, a scheme was brought in on 11th Jan., 1875, and towards the end of May following, Mr. Nicholls, *132 on behalf of the defendants, moved for leave to appeal, the facts appearing on which motion are sufficiently stated in the judgment.
Sullivan, M.R.—If I had an absolute discretion vested in me, I would allow this motion as a matter of course. Wherever I have been enabled to see my way so to act, I have allowed liberty to appeal, although the time for appealing has gone by. But, I do not think in this case, within the authorities, that the delay which has taken place has been accounted for at all; and if I allow this motion, the delay to administer this charity, which has been extreme already, would, in reference to the controversy which would be raised upon appeal, be prolonged to a great period. Now, this fund remains unapplied to the purposes of the will, and was so unapplied by the trustee for a number of years before the Commissioners of Chartitable Donations and Bequests filed an information in this Court—the identical point which has been raised here, having been discussed generally between the different clergymen who lived in Kells at one period or another, they thinking to solve this difficulty by putting the money together and trying to agree upon a scheme. The time for appealing, limited by Act of Parliament, was the 11th October, 1874; and the trustee, when the scheme was not brought in within three months, elected to lie by and watch, and then to appeal. The scheme is brought in on the 11th Jan., 1875, and then there is no appeal, and not until the end of May notice of motion is served to appeal—nearly twelve months after the date of the decree; and still no reason is assigned for the delay. It has often been decided that on such a motion for leave to appeal, you must show why you have delayed so long. It might have been accounted for in many ways, as if the case was unavoidably delayed by counsel, or by some fatality to which everything must yield. There is no reason given here but one—namely, that the scheme was expected to take another form. The delay not being accounted for, Mr. Nicholls, for defendants, having come in under that decree and appeared before me upon the settlement of that scheme, and, it may be, to object to it, should have appealed at once if at all. I am bound to act on the settled rules and practice, and I hold this to be a sure one, that you must show reasonable ground for the appeal, and for the delay in bringing such appeal. If the delay were accounted for, I would allow this motion to go as a matter of course. It is not accounted for, and, therefore, I must refuse this motion, and refuse it with costs.
O’Hanlon v Logue
Court of Appeal.
4 February 1906
[1906] 40 I.L.T.R 78
Walker, L.C.
The question is whether a gift for Masses, where there is no direction for the Masses to be said in public, is a valid gift— in other words, whether its validity as a charitable gift does not rest upon far higher grounds than the existence of a direction for public celebration. All religions are equal in the eye of the law, and this especially applies since the abolition in this country of a State Church. Whether the subject of the gift be religion or 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. It may also be treated as settled law that in Ireland a gift for Masses is not illegal as a superstitious use (Reid v. Hodgens). In pre-Reformation times a gift for Masses was valid at Common Law, and charitable as the word must be interpreted. In Att.-Gen. v. Delany evidence was given by Dr. Delany as to the exact nature of a Mass. He stated that it was impossible, according to the doctrine of the Church, that a Mass could be offered for the benefit of one or more individuals, living or dead, to the exclusion of the general objects included by the Church. When an honorarium was given for the purpose of saying a Mass for a departed soul the priest was bound to say it with that intention; but that obligation might be discharged by a mental act of the priest, but it could not be discharged by the ordinary parochial Mass which he said on Sundays or holidays. Such honoraria for Masses formed portion of the ordinary income and means of livelihood of priests, and they were generally in Ireland distributed by those to whom the distribution was entrusted, amongst priests whose circumstances were such that they stood in need of the assistance offered. Such was the evidence as to the exact nature of a Mass, both generally and where a commemoration of named dead was included. It is settled by authority which binds us that when there is a direction to celebrate the Mass in public the gift is a valid charitable one; but that which makes it charitable is the performance of an act of the Church of the most solemn kind which results in benefit to the whole body of the faithful, and the results of that benefit cannot depend upon the presence or absence of a congregation. Furthermore, adopting the evidence of Dr. Delany, the bequest of a sum of money for the saying of Masses which could not be satisfied by the ordinary parochial Mass, and the conferring of honoraria upon the priests who celebrated the Masses, are an endowment of the priests who celebrate this solemn sacrifice, and, therefore, an advancement of religion, just as much in principle as the erection of a church in which they might be said or the endowment of an additional priest to celebrate them.
Palles, L.C.B.
I agree with the Lord Chancellor that this appeal should be allowed. The case differs from Att.-Gen. v. Hall in that in the present case there is an absence of any direction that the Masses should be said in public. The question is whether it is an essential condition to the celebration of the Mass being charitable that it should be in public. Att.-Gen. v. Delany is the earliest decision in this country. If that be overruled the later cases must share the same fate. It is true the question was considered in Commrs. of Charitable Donations v. Walsh in 1823, and in Reid v. Hodgens in 1874, but in neither of them was there any evidence that the terms of the bequest could be complied with otherwise than by public celebration. In the second case the only point argued was whether the bequest was void as being for a superstitious use. The case did not decide anything that was not already decided in previous cases. These cases, therefore, did not determine the question in controversy here further than showing, firstly, that Masses in this country should not be deemed superstitious; and, secondly, that its charitable character was not affected by a request for a particular object or memorial. As to Att.-Gen. v. Delany, after long and serious consideration I have come to the conclusion that it cannot be supported. The opinion I expressed there, that the public celebration of Mass is charitable, necessarily leads to the conclusion that its celebration, although not in public, is of the same character, and that, too, upon the basis upon which the judgment proceeded—that public benefit was necessary to charity—must be one which the Court itself can ascertain and declare. As the nature and character of the Mass was known to the Common Law in pre-Reformation times, so, after the Reformation, it still continued to know the Roman Catholic belief in reference to it. There is no doubt that, according to the Roman Catholic faith, each celebration of the Mass involves the most perfect act of charity. Prior to the Reformation these bequests would have been deemed pious as acts of worship of a Church. But these acts must be performed by ministers of that Church, and thus the gifts become twofold charitable—first, and principally, by reason of the piety, which is the essence of the gift to God, which is to be applied to His divine worship; and, secondly, by the mode in which it is to be so applied—viz., in the maintenance and support of the ministers by whom the acts of worship are to be performed. [His *79 Lordship referred to various passages of Coke upon Littleton and to Pollock and Maitland’s “History of English Law before the time of Edw. I.,” and dealt with Frankalmoign and Tenure by Divine Service.] Thus the pious character of these gifts is such as renders them charitable within the meaning of the statutes (43 Eliz., c. 4; 10 Ch. I. Ir.); Powerscourt v. Powerscourt, per Lord Manners, and Re Darling, per Stirling, J. After the Reformation the gifts would have remained charitable were it not that they were illegal. But when, in 1793, the laws prohibiting the practice of the Roman Catholic religion were repealed, the illegality determined, and they resumed the character they enjoyed in pre-Reformation times—charitable—(1) because of their piety, and (2) because they were devoted to the support and maintenance of the clergymen, the celebrants. The money is not a consideration for the celebration. In no period of the Christian Church would such a bargain be other than simoniacal. It is an alms to the clergyman, but the gift is accompanied by a request for the celebration, and the Church will not permit the clergyman to receive the benefit and disappoint the expectation, and it imposes on his conscience the obligation to perform the services. The obligation, however, is one to the Church and not to the testator, and certainly is to be enforced only by the Church. For these reasons I think the narrow view taken in Att.-Gen. v. Delany—that the only element of public benefit in the celebration of the Mass is the instruction and edification of the congregation present—fails to appreciate the gift as a gift to God. Even if the object of the gift were separated from its effect, which is impossible, I should hold that either renders it charitable, and this is certainly the effect of both combined. That is my first reason for holding Att.-Gen. v. Delany was wrong, and that the gift here should be upheld. As the Common Law, after the Reformation, knew that the old service contained in substance all that which rendered the new service charitable, together with something else, that old service, at least since 1867, must, too, be charitable, unless those elements, which it contains and which are absent in the new service, prevent the legal result which otherwise would follow from that which is common to both. Such prevention could be occasioned only by illegality, and there is now no illegality in the essential differences between the two services. That is my second reason for holding the gift charitable. There is a third reason. The Divine Service of a particular religion must be defined by the doctrines of that religion, involving a hypothetical admission of the truth of that religion. When the religion is not an established one the question must depend upon the doctrines of that religion taken subjectively—never objectively, which never can be known. When the law knows its doctrines it cannot know them objectively and as a fact unless it also knows that the doctrines in question are true. This it cannot do. It not only has no means of doing so, but it would also be contrary to the principle that all religions are now equal in the eye of the law. The law must admit the sufficiency of spiritual efficacy, but ascertain it according to the doctrines of the particular religion.
FitzGibbon, L.J.
In Att.-Gen. v. Hall I ventured to say that if a Mass was in itself necessarily an act of public benefit I could not see how it became less so because it was directed to be said for the soul of the testator, and I suggested that whether a bequest for Masses was “charitable” as tending to the promotion of religion must depend not upon positive laws nor upon the testator’s intention, but upon Roman Catholic doctrines, and that if the benefit and edification resulting from the celebration were not in Roman Catholic belief confined to the testator, but if the Mass was an official act of public worship, or what Protestants call “means of grace,” believed by the testator and his Church to carry religious benefit to all the faithful, it could not lose its charitable character if it was celebrated in any manner authorised by the Church, even though the motive which dictated the gift was primarily or even exclusively that of securing a share of that benefit for the testator himself in the next world. In determining whether the performance of a particular rite promotes any particular religion and benefits the members of the Church or denomination or body who professed it, the secular court must act upon evidence of the belief of the members of the community concerned. It would be strange indeed if bequests for the promotion of total abstinence, or even vegetarianism, or for the maintenance of a place of public worship or of a minister of a small congregation of “peculiar people,” for the dissemination of the works of Joanna Southcote, or the prevention of cruelty to animals, could be held, as they have been, to be charitable objects if a provision by a Roman Catholic for Roman Catholics for the celebration of the Mass, especially in Ireland, where superstitious uses are not mala prohibita, are to be excluded from that category.
Holmes, L.J., concurred.
(Irish Reports)
[1906] 1 IR 247
Walker C: In this case Felix O’Hanlon, the trustee of the will of Ellen McLaughlin, applied by summons to the Master of the Rolls to have the important question involved in the appeal decided, whether a gift for the celebration of Masses for the repose of the souls of her named relatives and herself was a valid charitable gift, though the will contains no direction that such Masses should be celebrated in public.
The gift is contained in a direction by the testatrix to her trustees to sell, in the events that happened, the leasehold mentioned in the will, “and to pay over the income of the proceeds from time to time to the Roman Catholic Primate of all Ireland for the time beings to be applied for the celebration of Masses for the repose of the souls of her late husband, her children, and herself.”
The Master of the Rolls by his orders dated 13th July 1905, has decided that this gift is void, and His Eminence Cardinal Logue has appealed.
It would have been impossible, I think, for the Master of the Rolls, having regard to the existing decisions, to have made any different order than he did. But we have been asked, and are compelled, to reconsider the principle upon which the decisions in The Attorney-General v Delaney IR 10 CL 104 and The Attorney-General v Hall [1896] 2 IR 291; [1897] 2 IR 426 rest; and assuming it to have been now determined in this Court that a gift for Masses for the repose of the souls of the dead to be celebrated in public is a valid charitable gift, to consider further whether such a gift is valid though there be no direction for celebration in public – in other words, whether its validity as a charitable gift does not rest upon far higher grounds than the existence of a direction for public celebration.
I have had the advantage of reading the elaborate judgment which will be delivered by the Lord Chief Baron. The Court of Exchequer, presided over by the Lord Chief Baron, decided in The Attorney-General v Delaney IR 10 CL 104 that a gift simply for the celebration of Masses was not a valid charitable gift; but the Chief Baron expressed the opinion that such a gift would be valid if there were a direction that the Masses should be celebrated in public. That opinion of the Chief Baron passed into decision in the case of The Attorney-General v Hall [1897] 2 IR 426, and in this Court it did not become necessary for our decision to go beyond that. I was satisfied myself that the point before us would arise later, and I then thought there was no valid reason for differentiating between the two classes of case. Lord Justice FitzGibbon, however, did not shrink from considering the larger question on principle. He says:
“I find it necessary to look more deeply for the real foundation of the law, which the Attorney-General has expressly declined to challenge, viz. that bequests for Masses are valid, in order to see whether it is possible to base their validity upon any principle which will not also establish their charitable character, irrespectively of the mode of celebration.”
Further consideration has satisfied the Chief Baron that the validity of the gift as a charitable one does depend upon a principle which is irrespective of the mode of celebration, and I concur with him in that result.
There are some legal propositions germane to the case for which it would be mere pedantry to cite authority: (a) That in speaking of what is “charitable” we use the word in the artificial sense, which is derived from the statute 43 Eliz c 4 (Eng), and 10 Car 1, sess 3, c 1 (Ir); (b) That included amongst charitable objects is one which according to the ideas of the giver, is for the public benefit; (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. All religions are equal in the eyes of the law and this especially applies since the abolition in this country of a State church. 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. A remarkable illustration is furnished by the decision in Webb v Oldfield [1898] 1 IR 431, a gift for the spread of vegetarian principles – ideas that might be in the view of many erroneous and visionary.
It may also be treated as settled law that in Ireland a gift for Masses is not illegal as a superstitious use. On that point Read v Hodgens 7 Ir Eq R 34 is a binding and accepted authority; and the case of The Commissioners of Charitable Donations v Walsh Ibid 34, note, has been treated as a decision to the same effect, though it may well be that a careful examination of the gifts there might show, as pointed out by the Lord Chief Baron, that one gift involved a public celebration, and the other an endowment of religion. In pre-Reformation times a gift for Masses would be valid at Common Law and charitable, as that word must be interpreted.
In The Attorney-General v Delaney IR 10 CL 104 evidence was given by Dr Delaney as to the exact nature of a Mass. He states that, according to the doctrine of the Roman Catholic Church, the Mass is a true and real sacrifice offered to God by the priest, not in his own person only, but in the name of the Church whose minister he is. Every Mass, on whatever occasion used, is offered to God in the name of the Church, to propitiate His anger, to return thanks for His benefits, and to bring down His blessings upon the whole world. Some portions of the Mass are invariable, and some are variable. Amongst those invariable are an offering of the Host for his own sins, and for all present, and also for all faithful Christians both living and dead; and the sacrifice is offered for the Church, and the granting to it of peace, and its preservation and union. It includes commemoration of the living and of the dead and he states it is impossible, according to the doctrine of the Church, that a Mass can be offered for the benefit of one or more individuals living or dead, to the exclusion of the general objects included by the church. When a honorarium is given for the purpose of saying a Mass for a departed soul, the priest is bound to say it with that intention; but that obligation may be discharged by a mental act of the priest, but it cannot be discharged by the ordinary parochial Mass which he says on Sundays and holidays. Such honoraria for Masses form portion of the ordinary income and means of livelihood of priests, and are generally in Ireland distributed, by those to whom the distribution is entrusted, amongst priests whose circumstances are such that they stand in need of the assistance offered.
Such is the evidence as to the exact nature of the Mass, both generally, and where a commemoration of named dead is included. It is settled by authority which binds us that where there is a direction to celebrate the Mass in public, the gift is a valid charitable one; but what makes it charitable is the performance of an act of the Church of the most solemn kind, which results in benefit to the whole body of the faithful, and the results of that benefit cannot depend upon the presence or absence of a congregation. Furthermore, adopting the evidence of Dr Delaney, it seems to me that the bequest of a sum of money for the saying of Masses, which cannot be satisfied by the ordinary parochial Mass, and the conferring of honoraria upon the priests who celebrate the Masses, are an endowment of the priest who celebrates this solemn sacrifice, and therefore an advancement of religion just as much in principle as the erection of a Church in which they might be said, or the endowment of an additional priest to celebrate them.
Authority is not needed for the proposition that a gift for such a purpose would be a good charitable one. I may mention Powerscourt v Powerscourt 1 Moll 616 and Lea v Cooke 34 Ch D 528.
I think the appeal should be allowed, and the question answered according to the result of our decision.
Palles CB: I concur with the Lord Chancellor in the opinion that this appeal should be allowed: but as doing so involves the disaffirmance of the judgment in The Attorney-General v Delaney IR 10 CL 104, to which I was a party, I desire to consider in some detail the question involved.
The decision of this Court in The Attorney-General v Hall [1897] 2 IR 426 overruled all the objections to the charitable nature of the bequest there under consideration; a bequest which differs from that as to which the question here arises by a single circumstance only, the absence here of a direction that the Masses shall be celebrated in public.
Thus the question is: Is it an essential condition to the celebration of Mass being charitable that it should be in public?
In my view, The Attorney-General v Delaney IR 10 CL 104 is the earliest decision in this country on the subject. The subsequent decisions were based upon it as the decree of a Court of co-ordinate jurisdiction. They therefore will not require separate examination, as if the former be overruled, the others must necessarily share the same fate.
It is true that the nature of a bequest for Masses was considered in two earlier cases – in The Commissioners of Charitable Donations and Bequests v Walsh 7 Ir Eq R 34, note, in 1823, and in Read v Hodgens Ibid. 17, in 1844 – but the effect of the absence of a direction for public celebration does not appear to have been relied upon in either. It is not, however, for this reason alone that neither of these prior cases can, in my opinion, be relied upon as a decision that a celebration otherwise than in public is charitable. In neither of them was there any evidence that the terms of the bequest could be complied with otherwise than by public celebration.
In the principal bequest in the first of these cases – The Commissioners of Charitable Donations and Bequests v Walsh 7 Ir Eq R 34, note – the services specified in the bequest were “solemn masses”, at each of which thirteen clergymen were, if possible, to be present, “to perform the rites accustomed on these occasions.” It was, and is, the common knowledge of every Roman Catholic that the services there pointed at are what are known as “Offices for the Dead,” which are necessarily celebrated in public, so that the terms of that bequest were inconsistent with private celebration.
The only other material bequest there was of £20 yearly “to a third clergyman for the attendance of this parish, for which I hope he will offer a weekly Mass for the repose of my soul and the benefit of my son.” Such a bequest for an additional clergyman for the parish would have been charitable, even had there not been a request for the celebration of Masses: Thornber v Wilson 3 Drew 245.
In the second case – Read v Hodgens 7 Ir Eq R 17 – the only question argued was whether the bequest was superstitious, and therefore void: in other words, whether the law, or policy of the law, which in West v Shuttleworth 2 Myl & K 684 was held to underlie the English statute 1 Edw 6, c 14, applied to this country, in which there was no analogous statute. It was decided “in deference to the decree” in the earlier case which, in the opinion of the Master of the Rolls, “closed all further discussion on the point”; and that learned Judge stated that he had not formed any opinion of his own. That case, therefore, did not decide anything which had not been ruled by the earlier decision.
Whilst these two cases were most important on the question afterwards decided in The Attorney-General v Hall [1897] 2 IR 426, viz the charitable nature of a Mass celebrated in public, they do not determine the controversy here, further than by showing two very important matters – (a) that the Mass was not in this country deemed to be superstitious, and (b) that its charitable character was not affected by a request for a particular memorial. They are express authorities that the words of Lord Cottenham, when Master of the Rolls 2 Myl & K 684, that in such a case “the intention was not to benefit the priests or to support the chapels, but to secure a supposed benefit to the testatrix herself,” are not law in this country. Incidentally, I may remark that the English statute 23 & 24 Vict c 134, “The Roman Catholic Charities Act,” which was passed in 1860 to modify the effect of the law laid down in West v Shuttleworth 2 Myl & K 684, affords an argument, almost conclusive in my mind, to show that this difference did exist between the laws on this subject in England and in Ireland; as it is impossible to believe that the relief conferred by that statute would have been confined to England and Wales if the mischief intended to be remedied extended to Ireland also. The Legislature, by that Act, legislated upon the basis that the law in each country was that which it had been judicially declared in each to be; and consequently that statute is almost a statutable recognition of the decisions in The Commissioners of Charitable Donations and Bequests v Walsh 7 Ir Eq R 34, note and Read v Hogens ibid 17.
Thus stood the law in this country prior to the decision in The Attorney-General v Delaney IR 10 CL 104. To arrive at the ratio decidendi there of the question now before us, I must eliminate so much of it as relates to the many questions that had to be decided there, but which do not arise here: questions as to the force of the word “merely” preceding “charitable,” in section 38 of 5 & 6 Vict c 82 (on the construction of which the liability to the duty there claimed arose); as to the bequest there, being a “legacy” within the meaning of that Act; as to the person who was to be deemed to be the legatee; and as to the mode in which the amount of the benefit conferred was to be ascertained. All these matters had to be considered and determined there, as preliminary to the existence of the question here.
Coming, then, to the actual ratio decidendi there, after long and serious consideration which has been forced upon me by the various subsequent decisions of the question, including The Attorney-General v Hall [1897] 2 IR 426 (in the judgment in which, in the Exchequer Division, I took part) – a consideration which now, for the first time since the decision in The Attorney-General v Delaney IR 10 CL 104, I am obliged to bring to a judicial test – I feel that the decision cannot be supported. I further feel that had I pressed to its legitimate conclusion the difference of opinion which existed there between me and my learned brothers, I should have found that the opinion I expressed there, that the public celebration of a Mass was charitable, necessarily led to the conclusion that its celebration, although not in public, was of the same character, and that, too, upon the basis upon which the judgment proceeded – that the public benefit necessary to charity must be one which the Court itself could ascertain and declare.
To show the exact point in the reasoning in which, in my opinion, the error lies, renders necessary a rather lengthened examination of the judgment.
I commence with the position the argument had arrived at, after the cases of The Commissioners of Charitable Donations and Bequests v Walsh 7 Ir Eq R 34, note and Read v Hodgens 7 Ir Eq R 17 had been considered, and West v Shuttleworth 2 Myl & K 684 distinguished. The judgment then proceeded, in some sentences which I may be excused for repeating, as to do so is necessary to enable my present view to be understood.
The position is stated thus:
“Assuming the bequests not to be illegal, and considering them in a country in which there is now no established church, the acts directed to be procured are, according to the faith which the testatrix professed, sacrifices to God in the most proper sense and of the most solemn kind, on behalf of all the faithful, living and dead, including a particular memorial of the deceased person specified. On the other hand, they are not necessarily to be offered in the public congregation of the faithful, or in public at all.”
To this I should now add, that as the nature and character of a Mass was known to the Common Law in pre-Reformation times, so after the Reformation, and to the present, the nature, and the Roman Catholic belief in reference to it, continue to be known to that law.
The judgment then proceeds to make it clear that in pre-Reformation times the purpose would have been held charitable, in the sense in which that word was used prior to the statutes of 43 Elizabeth, c 4 (Eng), and 10 Charles 1, sess 3, c 1 (Ir):
“The element of charity, in its most extensive, indeed in its truest sense, which they (the bequests) contain, is piety to God. There is no doubt that, according to the Roman Catholic faith, each celebration of the Mass involves the most perfect act of charity. But further than this, it appears to me plain that, before the Reformation, bequests for these very purposes were not only legal, but were enforceable by the Ordinary as other charitable bequests.”
In support of this, reference is made to the provision in the Statute of Westminster the 1st, that in case one dies intestate, the Ordinary shall depute his nearest and most lawful friends to administer his goods “and dispend for the soul of the dead”; and to the opinion expressed by Lord Eldon in Moggridge v Thackwell 7 Ves 69, that the favour with which bequests for charitable purposes (not coming within the Mortmain Acts) have been treated in Courts of Equity, may have had its origin in the practice recognized in that statute. The judgment then adds:
“It seems unnecessary to pursue this subject. The history of the country, and the Statute Law subsequent to the Reformation, appear to me to render the question free from doubt. I concur in the argument of the defendant’s counsel that, prior to the Reformation, these bequests would have been deemed pious.”
To all this I still adhere. Then the judgment proceeds:
“The next proposition urged by the defendant’s counsel is, that assuming the bequests could, prior to the Reformation, have been deemed pious, as every objection arising from illegality and from the existence of an established church has been removed, the bequests are now to be viewed as they would have been before the Reformation; and as they would have been then deemed pious, they must now be deemed charitable.”
To this an answer is given which I still think is correct: “This is not the real question which we have to decide. We are bound down within much more narrow limits. Our province is confined to determining whether the purpose in question is one ‘merely charitable,’ within the 5 & 6 Vict c 82, section 38” – words which the judgment proceeds to show mean, in reference to the bequests there, “charitable” within the meaning of the Acts 43 Eliz, c 4 (Eng) and 10 Charles I, sess 3, c 1 (Ir), or analogous to the purposes therein mentioned.
It was at this point that, in my opinion, the judgment erred. Having ascertained the character which the purpose should answer in order to be charitable, it should have proceeded to ascertain the effect, upon bequests for the celebration of Masses, of the Reformation statutes, and from that effect, ascertained what it could of its nature and character, as recognized and acknowledged by law, at and after the Reformation. Instead of doing this, the judgment, after rightly stating that a purpose, to be within the statutes of Elizabeth and Charles, must, to some extent at least, “be in the nature of a general public use … of such a nature that the Court can determine that it can confer a benefit upon the public, or upon some section of the public,” proceeds, without, as I now think, sufficient consideration of the nature which the law attributed to the Mass in post-Reformation times, to hold that the bequests “could not derive the element of public benefit from the efficacy, spiritual or temporal, which, according to the faith of the testatrix, the religious act may possess,” that the only public benefit the law could recognize as flowing from its celebration was the edification of the congregation, and that, as the presence of a congregation was not essential, the gift was not charitable.
Going back now to the effect of the Reformation Statutes on gifts for Masses, the nearest analogies which I can find to such gifts, with a particular memorial, but without any direction that the celebration shall be in public, are the old common law spiritual tenures to which we have been referred by Mr Browne and Mr Pigot during their able and interesting arguments – tenure by “frankalmoyne” and tenure by “divine service”. These two tenures differed from each other mainly in this: that in frankalmoyne a certain service could not be reserved; in tenure by divine service the service should be certain, and this distinction had a result not unimportant – that in default of performance, if the tenure were that firstly mentioned, the lord could not distrain, whilst if it were the second he could. The legality of the distress should necessarily be determined, if disputed, in a temporal, as distinguished from an ecclesiastical, Court; and Lord Coke says Co Lit 95 (b): “If issue be taken upon the performance of the divine service, it shall be tried by a jury of twelve men.” Thus the Common Law had to determine, and consequently was able to determine, whether a particular Mass had been offered up with the specified intention. This disposes of one objection much pressed here and in The Attorney-General v Hall [1897] 2 IR 426, the strenuous denial that a temporal Court had either the power or the means of determining such a matter.
I come now to the description of these tenures. The former is thus described by Littleton S 133; Co Litt, 93 (b): “Tenant in frankalmoigne is where an abbot, or prior, or another man of religion or of Holy Church, holdeth of his lord in frankalmoigne that is to say in Latin, in liberam eleemosinam, that is, in free almes; and such tenure beganne first in old time,” meaning of course before the statute Quia Emptores:
“Where a man in old time was seised of certain lands or tenements in his demesne as of fee, and of the same lands infeoffed an abbot and his covent, or prior and his covent, to have and to hold to them and their successours in pure and perpetual almes or in frankalmoigne … In such case the tenements were holden in frankalmoigne.”
The services which those who held under this tenure were to render to their feudal lord are stated in section 135(b):
“And they which hold in frankalmoigne are bound of right before God to make orisons, prayers, massess and other divine services for the soules of their grantor or feofforn and for the soules of their heires which are dead, and for the prosperity and good life and good health of their heires which are alive. And therefore they shall do no fealty to their lord, because that this divine service is better for them before God than any doing of fealty; and also because that these words (frankalmoigne) exclude the lord to have any earthly or temporal service, but to have only divine and spiritual service to be done for him.”
In case of non-performance under this tenure, the complaint (differing in this respect from that in tenure by divine service) should, according to Littleton, be “to their Ordinary or Visitour” S 136.
In section 137, Littleton describes tenure by divine service thus Co Litt, 96 (b):
“But if an abbot or prior holds of his lord by a certain divine service in certaine to be done, as to sing a masse everie Friday in the weeke for the soules, ut supra, or everie year at such a day to sing a placebo et dirige, &c, or to find a chaplain to sing a masse, &c., or to distribute in almes to an hundred poore men an hundred pence at such a day; in this case, if such divine service be not done, the lord may distreyne … and such tenure shall not be said to be tenure in frankalmoignes but is called tenure by divine service … for none can hold in frankalmoigne if there be expressed any manner of certain service that he ought to doe.”
It is not stated in the above passages, or in any of the old books treating of the tenure of frankalmoigne that I have examined, that the divine service here referred to should be in public. The mode of its celebration under the tenure was that prescribed by the Church, and it is certain that the Church did not prescribe public celebration.
Before coming to the Reformation statutes, it is necessary to form a clear conception of the mode in which the Common Law regarded these gifts. Bracton says that “they were made, in a primary sense and principally, to God and to the Church, and in a secondary sense to the canons or monks or persons.” His words are – “Et ita quod primo et principaliter fit donatio Deo et ecclesiae, et secundario canonicis vel monachis vel personis”; and so firmly was this principle established, that gifts took the form of gifts to God and a particular abbey and church. Sir Frederick Pollock and Mr Maitland, in their learned and interesting “History of English Law before the time of Edward the First” Vol I, page 222, say: “A gift, for example, to Ramsey Abbey would take the form of a gift ‘to God and St Benet of Ramsey Abbey, and the Abbot Walter and the monks of St Benet,’ or ‘to God and the Church of St Benet of Ramsey, and the Abbot and his monks,’ or simply, ‘to God and the Church of St Benet of Ramsey,’ or yet more briefly, ‘to God and St Benet’”; and they refer to particular charters which contain these words and later on, in a note to a passage in Bracton, stating, “We do not make gifts to a parson and his successours, we make them to the Church, eg ‘to God and the Church of St Mary of Dale,’” they add this: – “This remark seems fairly well supported by the practice of conveyancers in Bracton’s time.” So that the instances referred to are not isolated ones. They evidence the usual practice.
All this shows the true reason why the Common Law held the gifts pious. It was because they were gifts to God: gifts which provided for the worship of God. Even had the Common Law acknowledged more religions than one, it would have held pious any gift making provision for the worship of God, irrespective of the particular acknowledged religion according to which the worship was to be offered, provided only such religion were recognised as lawful. The gift here, as it is not illegal, is pious, according to the doctrines of all theistic religions, as all are based on a belief in the existence of the Deity, a belief that service and worship are due to Him, and a belief that the ministers of religion are the persons by whom the worship of the Church in its corporate unity is to he offered to Him. Thus, these gifts were not only pious before the Reformation, but, had they not been made illegal by statute, they would have been charitable within the meaning of the subsequent statutes of Elizabeth and Charles. As to this, Powerscourt v Powerscourt 1 Molloy, 616 and In re Darling [1896] 1 Ch 50 are in point. In the first of these cases a devise to trustees to lay out at their discretion £2000 per annum till the testator’s son became of age, “in the service of my Lord and Master, and, I trust, Redeemer”; and in the second, a gift “to the poor and the service of God.” were held charitable, the first by Lord Manners, LC, and the second by Lord Justice Stirling.
The religious act specified is, however, not to be disregarded. It was the divine service of one particular church. The particular mode in which the general pious intention was to be carried out was by acts of worship of that Church in its corporate unity. The acts of worship of a church are admitted, by all theistic religions, to tend to discharge, to some extent, the debt due to God by the general body of the faithful, and to bring down upon them temporal and spiritual benefits. But these acts must be performed by ministers of that Church; and thus the gifts are in a two-fold manner charitable – first, and principally, by reason of the piety which is the essence of the gift to God, the gift which is to be applied to His divine worship; and, secondly, by the mode in which it is to be so applied, viz. in the maintenance and support of the ministers by whom the acts of worship are to be performed. I have to add that, although Mass may be celebrated in private, its liturgy shows that it contemplates the presence of a congregations although not as an essential part. The response of the clerk are those of the congregation, who, by the “Orate fratres,” is in words invited to participate in the worship; for whose reception of the Blessed Eucharist provision is made in the ritual; and who is, or possibly in Apostolic times a particular section of whom was, at the conclusion dismissed, by the words from which the name of the service is derived: “Ite; Missa Est.”
Having ascertained the character of these gifts, I come to consider the effect, upon these tenures by frankalmoyne and divine service, of the Reformation statutes, as this effect, to my mind, demonstrates that my last position is correct. These statutes are 2 & 3 Edw 6, c 1; 5 & 6 Edw 6, c 1; and 1 Eliz c 2, in England; and their Irish equivalent, 2 Eliz, c 2 (Ir). The English statutes prescribe the altered liturgies of divine service contained in the two Prayer Books, and the Irish statute prescribes that in the second Prayer Book of Edward 6. The effect of the English statutes is thus stated by Lord Coke, as a note upon the words of sect 135, “to make orisons, prayers, Masses, and other divine services.”
“Since Littleton wrote, the lyturgye or Book of Common Praier, and of celebrating divine service, is altered. This alteration notwithstanding, yet the tenure in frankalmoyne remaineth, and such prayers and divine service shail be said and celebrated as now is authorised; yea, though the tenure in particular, as Littleton hereafter saith, viz. to sing a masse, &c, or to sing a placebo et dirige, yet if the tenant saith the praires now authorised, it sufficeth … And albeit the tenure in frankalmoyne is now reduced to a certainty contained in the Book of Common Praire, yet seeing the original tenure was in frankalmoyne, and the change is by general consent by authority of Parliament, whereunto every man is party, the tenure remaineth as it was before.”
Of these statues, the 2 & 3 Edw 6 c 1 (Eng), dealt with “the celebration of the Lorde’s Supper, commonlye called the Masse,” as a divine service to continue in use. Neither it nor the 5 & 6 Edw 6, cl 1 (Eng), which substituted the second for the first Prayer Book of Edward 6, altered more than its order and form. Indeed, the second Act recites that doubts, the existence of which is stated to be the reason of the Act, arose in the use and exercise of the common service, “for the fashion and manner of the ministration of the same, rather by the curiosity of the mynistre and mistakers than of any other worthy cause.”
These statutes did not in terms declare that the performance of the new service should be accepted as a performance of the old. The view of Parliament was that the Reformed church was the old Church, with a change in certain of its doctrines, and consequent changes in its liturgy and divine service; that the Communion Service was the Divine Service of pre-Reformation times, altered in such a mode as was incident to the change of doctrine; and Lord Coke’s opinion involved this that the Common Law held that the celebration of the altered service, in the mode prescribed by the altered liturgy, was a performance of a condition which prescribed “making orisons, prayers, Masses, and other divine services for the soules of their grantor,” &c. Underlying this doctrine is matter of much moment, for we know as matter of history that the secular clergy of the Reformed Church did not, either in England or in Ireland, lose at the Reformation the lands they held by these tenures. Much land is still held under them by various ecclesiastical foundations in England. Some land was, at and after passing of the Irish Church Act, held by them in Ireland; and during some of the earlier years of my judicial career, the choir-master and choristers of Christ Church Cathedral were in the habit of coming into the Court of Exchequer once a year, in Hilary Term, and performing there an act of service, under one of these spiritual tenures, by singing a hymn in open Court.
It being then certain that the lands held under these tenures were not forfeited, it is to be asked, How did this happen in England, when each service involved the performance of an act (prayers for the dead) which in that country was declared to be superstitious by 1 Edw 6, c 14, and which by that Act forfeited the lands into the hands of the King? Adams and Lambert’s Case 4 Rep 104(b). How was it that neither the lands held under such a condition were forfeited, nor the condition itself discharged? The only answer that can be given to that question, and I am satisfied that it is the true one, is that the Common Law, after the Reformation, continued to hold, as I have shown it held in pre-Reformation times, that these tenures involved a general principle of piety which, after the Reformation as well as before, rendered the purposes charitable, and that nothing was affected by the so-called superstition, except the particular mode of performances for which, either by the statute or by the Common Law (it is immaterial which), the altered service was substituted. This was to my mind, undoubtedly right, and was analogous to the cy-près doctrine, shortly afterwards established in Courts of Equity in relation to charities. But if it is right, it establishes that, after the Reformation, the gifts would have remained charitable, were it not that they were illegal. When then, in 1793, all laws prohibiting or discouraging the practice of the Roman Catholic religion were repealed, the illegality determined, and they resumed the character they enjoyed in pre-Reformation times, and once more became charitable – (1) because of their piety; (2) because they were devoted to the support and maintenance of the clergymen, the celebrants.
In the present case, the motive and purpose of the gift are similar to those in frankalmoyne, and are consequently charitable.
To prevent misunderstanding, as to my view of the nature of these gifts, I desire to state that I do not consider that the money is the price of the celebration. In no period of the Christian Church would such a bargain be other than simoniacal. The true nature of the bequest is that of an alms to the clergyman, just as in frankalmoyne the gift was in the nature of alms; but the gift of alms is accompanied by a request for the celebration, and according to our equitable doctrines the clergyman, by accepting that gift binds himself to fulfil the request. He cannot accept the benefit, and disappoint the exception. The honorarium then is an alms, and a recognized mode of supplementing the income of the clergyman, and is applicable to his support and maintenance; and for this reason alone would be within the very words of the statute of Charles I.
For all these reasons, I am of opinion that the narrow view taken in The Attorney-General v Delaney IR 10 CL 104, that the only element of public benefit in the celebration of the Mass is the instruction and edification of the congregation present, fails to appreciate it as a gift to God, as a gift made in the expectation that, because of it, the divine service of a Christian Church, a supreme act of divine worship, would be offered in the name of and by the authority of the whole Church, by ministers specially consecrated to represent her, as an act from which the Common Law knew previous to the Reformation, and therefore knows now, that benefits spiritual and temporal flow to the general body of the faithful – benefits which, even were they spiritual only, would render the service charitable within 10 Car 1, sess 3, c 1. In my mind, if the object of the gift could be separated from its effect (which is impossible), either would render the gift charitable. This certainly is the effect of both combined.
This, then, is my first reason for holding that the decision in The Attorney-General v Delaney IR 10 CL 104 was wrong, and that the present appeal should be allowed.
I now revert to the effects of the Reformation. It, as I have already said, altered the service – and without entering upon a consideration of the difference between the old and new services, the latter is identified, by the Act of Edw 6, as being in law the divine service of the Mass, as altered. Each, the old and the new, is an act of divine worship of the Church, an offering of praise, adoration, and thanksgiving, involving a petition for benefits, temporal and spiritual, for all the faithful alive, whether present or absent. All will admit that the divine service of the Reformed Church was, by virtue of its spiritual efficacy, a charitable act, so long as it remained the established church; and if so, having regard to section 20 of the Church Act, which, subject to a power of change, continues all the “doctrines, rites, and ceremonies,” notwithstanding disestablishment, so must it have continued thereafter.
Now knowing, as does the Common Law, that the old service contains in substance all of that which renders that new service charitable, together with something else, that old service, at least since 1869 (when the Roman Catholic and the Reformed Church became equal in the sight of the law), must, too, be charitable, unless those elements which it contains, and which are absent in the new service, prevent the legal result which otherwise would flow from that which is common to both. But such prevention could result only from illegality; and there is now no illegality in the essential differences between the two services. Therefore, because the new service is charitable, so also must be the old. This is my second reason for holding the gift charitable.
There is, however, a third reason, which is of wider application, and which it is therefore right that I should state. The existence of a divine service is essential to all religions; and equally essential is the existence of a privileged class, a priesthood or a class of ministers, by whom that divine service shall be celebrated, on behalf of the church. The divine service of the particular religion must be defined by the doctrines of its own religion. Without those doctrines it cannot exist as a divine service. Without a knowledge of those doctrines, the spiritual effect of the service cannot be understood. Consequently, the effect of the divine service cannot be known, otherwise than from the doctrines of its religion, coupled with a hypothetical admission of their truth. But the advancement of any theistic religion is charitable, and such advancement may result from an increased number of the celebrations of its divine services. Therefore the charitable nature of a divine service must (when the religion is not an established one) depend upon the character of the act, not objectively, but according to the doctrines of the religion in question. The same proposition may be stated in different words. When, in a country like ours at present, where there is no established church, it is alleged that a religion (whose doctrines are not known to the law) is advanced by the performance of an act of divine service, the law, from the fact that it is a divine service, admits that which is involved in its being such an act, viz that its celebration tends to the advancement of the religion, and, consequently, a gift to procure the performance of the act is charitable. Further, the knowledge that it is a divine service necessarily involves a knowledge of those doctrines but for which it would not exist as a divine service, and therefore renders admissible evidence of these doctrines. But when it knows those doctrines, although it knows that, according to them, such an act has the spiritual efficacy alleged, it cannot know it objectively and as a fact, unless it also knows that the doctrines in question are true. But it never can know that they are objectively true, unless it first determines that the religion in question is a true religion. This it cannot do. It not only has no means of doing so, but it is contrary to the principle that all religions are now equal in the law. It follows that there must be one of two results: either – (1) the law must cease to admit that any divine worship can have spiritual efficacy to produce a public benefit; or (2) it must admit the sufficiency of spiritual efficacy, but ascertain it according to the doctrines of the religion whose act of worship it is.
The first alternative is an impossible one. The law, by rendering all religions equal in its sight, did not intend to deny that which is the basis of, at least, all Christian religions, that acts of divine worship have a spiritual efficacy. To do so would, virtually, be to refuse to recognize the essence of all religion: The other result must therefore, necessarily ensue. It must ascertain the spiritual efficacy according to those doctrines, that divine service does result in public benefit, either temporal or spiritual the act must, in law, be deemed charitable.
These considerations have satisfied me that, in this respect also, the decision in The Attorney-General v Delaney IR 10 CL 104 was erroneous, and that the celebration of the Mass, whether in private or in public, is charitable; and for this third reason, also, I am of opinion that this appeal should be allowed.
FitzGibbon LJ: The length of time which it has taken to bring the present question to a decision here, and the course of authority upon it, are equally remarkable.
Lord Manners, in 1823, in Walsh’s Case 7 Ir Eq R 34n, held a bequest for Masses for the repose of a testator’s soul to be valid. But the case was not reported.
Blackburne, MR, in 1844, in Read v Hodgens 7 Ir Eq R 31, was put in possession of Lord Manner’s decree: holding it to be a decision on the very question, he said that it was his duty to declare a similar bequest to be valid. In his opinion, having given all the time and attention to Walsh’s Case ibid 34 n which it was in his power to command, that case closed all further discussion on that point.
Whether the terms of the bequests in those cases would have raised the present question or not may be doubtful; but certainly no indication was given that the decisions depended in any way upon the presence or absence of a specific direction as to the mode of celebration.
For thirty-two years afterwards we do not know whether such bequests were, for the purpose of taxation, treated as charitable; and their liability to legacy duty was first discussed in 1875 in Delaney’s Case IR 10 CL 104, which decided that a bequest for Masses, which did not contain a direction that the celebration should take place in public, was not “charitable,” apparently on the ground that, though the bequest was valid in Ireland, where we never had any Statute of Superstitious Uses, it did not import any “benefit of the public,” in the absence of affirmative direction that the Masses should be publicly celebrated.
For brevity, I throughout use “charitable” as importing that element of public benefit which is necessary to bring a gift within the Statute of Pious Uses, 10 Car 1, sess 3 cap 1.
The decision in Delaney’s Case IR 10 CL 104 seems to me to have followed West v Shuttleworth 2 My & K 698, in so far as Lord Cottenham put the construction upon the legacies to priests and chapels, that “there was nothing of charity in their object; the intention was not to benefit the priests or to support the chapels, but to secure a supposed benefit to the testatrix herself.”
Twenty years have now passed during which Delaney’s Case IR 10 CL 104 has been followed by co-ordinate Courts; but it is now, for the first time, challenged on appeal.
In 1897, in Hall’s Case [1897] 2 IR 426, the validity and the charitable character of a bequest for Masses expressly directed to be celebrated publicly in a specified Roman Catholic Church for the repose of the testator’s soul were affirmed by this Court, and were finally established so far as Irish judicial opinion can go.
In Hall’s Case [1897] 2 IR 433, 448, 449 the direction for public celebration prevented the present question from arising; but I ventured to say that if a Mass was in itself necessarily an act of public benefit, I could not see how it became less so because it was directed to be said for the soul of the testator, and I suggested that whether a bequest for Masses was charitable, as tending to the promotion of religion must depend, not upon positive law, nor upon the testator’s intention, but upon Roman Catholic doctrine, and that if the benefit and edification resulting from the celebration were not, in Roman Catholic belief, confined to the testator, but if the Mass was an official act of public worship, or what Protestants call a “means of grace,” believed by the testator and by his Church to carry religious benefit to all the faithful, it could not lose its charitable character, if it was celebrated in any manner authorised by the Church, even though the motive which dictated the gift was primarily, or even exclusively, that of securing a share of that benefit for the testator himself in the next world.
I think myself happy now in following the Lord Chief Baron in his judgment – I do not say in his conversion, for since Hall’s Case (1897) 2 IR 433, 448, 449 I have needed no conversion.
My excuse for adding anything to such a judgment is that I believe a principle vital to religious liberty and equality, beyond any denominated interest, to be involved in our decision.
What is the essence of a bequest which is held charitable because it is pious or religious? The Statute of Pious Uses specifies gifts: “for the erection, maintenance, or support of any college, school, lecture in divinity, or in any of the liberal arts or sciences, or for the building, re-edifying, or maintaining in repair of any Church, or for the maintenance of any minister or preacher of the Holy Word of God” – which, however differently used, is certainly not denominational – “or for any other like lawful and charitable use and uses warranted by the laws of this realm.”
We have Bacon’s authority (Bac Abr Charitable Uses, C 36) that money given for the maintenance of a preaching minister, though not a charitable use mentioned in the statute, yet comes within the equity of it for “summa est ratio quae pro religione facit.”
What is “religion” here? It can not be abstract religion, for no human being can hold that, or even conceive an “abstract idea” of religion. I suppose Pantheism is the nearest approach to it. Religion for the purposes of the Statute of Pious Uses, must be the aggregate of all the lawful forms of religion conscientiously held by the King’s subjects, with the practical limitation that each of them must be held by a number of persons sufficient to make that particular form of religion an appreciable component of the religion of the State, and so to entitle those who hold it to take a benefit for themselves as a benefit to the public.
Tridentine Dogma, Anglican Doctrine, and the Non-Conformist Conscience, are all phases of the religion of The Holy Catholic Church to which every one who professes the Apostles Creed claims to belong. Not only all these, but also non-Christian religions, and possibly the religion of some Christian sects also, being “warranted by the laws of this realm,” must stand equal before the secular Courts in a country like Ireland, where no particular religion is established by law, and no particular faith has ever been declared superstitious by statute. In determining whether the performance of any particular rite promotes any particular religion, and benefits the members of the Church or denomination, or body, who profess it, the secular Court must act upon evidence of the belief of the members of the community concerned. It can have no other guide upon that subject.
The exclusiveness, the vagueness, or the self-sufficiency of principles religiously held by particular creeds, whether they rest on dogma, on doctrine, or on conscience, cannot exclude those who profess any lawful creed from the benefits of charitable gifts.
It would be strange, indeed, if bequests for the promotion of total abstinence, or even vegetarianism: for the maintenance of a place of worship, or of a minister, for a small congregation of peculiar people: for the dissemination of the works of Joanna Southcote; or for the prevention of cruelty to animals, should be held, as they have been, to be charitable objects, if a provision by a Roman Catholic, for Roman Catholics, for the celebration of the Mass, more especially in Ireland, where “Superstitious Uses” are not mala prohibita, were to be excluded from the category.
Upon the broad principle that the Mass is the most solemn official act of worship in the Roman Catholic Church; that it can be celebrated by the ordained priests of that Church, and by none others; that ever since 1793 that Church has been legalised as a religious institution in this country; and that it has been proved by legal evidence in this case that, according to the creed of every member of that Church, the Mass, whenever and wherever regularly celebrated in accordance with the law of the Church, results in benefit and edification to all the faithful, I hold that the promotion of that celebration is “charitable” under our Law.
Speaking with all reverence of a faith which I do not hold, touching the very “Mystery of Godliness,” I could not impute to any individual professing the Roman Catholic religion that he regarded a gift of money for Masses as a means of securing from such a Sacrifice a private and exclusive benefit for himself alone, as being much less than blasphemy; and, as I understand the proved doctrine of the Church, it would certainly be heresy. But the hope or belief that, in some shape or form, here or hereafter, a man’s good works will follow him – an ingredient of selfishness in that sense – enters into almost every act of charity; and if the act is done in the belief that it will benefit others; for example, in the belief that he that gives to the poor lends to the Lord, it can be none the less charitable because the giver looks for his reward in heaven.
The Lord Chief Baron has shown that the characteristic of charity – in the legal sense – has been attributed to acts of piety to God, his argument from the tenures by Divine Service is most persuasive upon this point; he has shown the recognition of the Mass in pre-Reformation Law, and the effect of the repeal of the Penal Laws in reviving this recognition; he has also endeavoured to identify the Reformed Service with the Mass, so far as their charitable character is concerned. I do not presume to say more on these points than that they all go in aid of the same conclusion which I wish to keep “in the open,” and upon grounds even broader that the treatment of these bequests as an additional endowment for particular clergymen. But it is not immaterial to quote the Irish Toleration Act of 1793. Section 5 repealed the penal laws against the Popish clergy, and section 8 excluded from the benefits of the Act any Popish Ecclesiastic who should exercise any of the rites and ceremonies of the Popish religion, save within their usual places of worship or in private houses, thereby legalising those rites and ceremonies when exercised within those limits. Section 11 expressly mentions the Mass, and repeals so much of the Act 8 Anne, c 3, as subjects any Papist to fine and imprisonment on his refusal to appear and testify on oath before two Justices of the Peace, “where and when he heard the Popish Mass celebrated as the same is usual in the Church of Rome.” This provision seems to me to reduce the question of the lawful and charitable character of any celebration of the Mass to the single question whether it is to be “celebrated as the same is usual in the Church of Rome”? The answer to that question can be obtained only from legal evidence of the laws and usages of the Church of Rome. Here this is supplied by the evidence given in Delaney’s Case IR 10 CL 104, which has been made available in this case, as it was in Hall’s Case [1897] 2 IR 426.
Taking this evidence, as I did in Hall’s case [1897] 2 IR 462, as a paraphrase of the decrees of the Council of Trent, I refer again to the passages in which “Sacrificium istud ver propitiatorium” is described as offered “non solum pro fidelium vivorum peccatis, poenis, satisfactionibus, et aliis necessitatibus, sed et pro defunctis in Christo, nondum ad plenum purgatis, rite juxta Apostolorum traditionem” – (Anglice), “as the same is usual in the Church of Rome” – the very words of the Act of 1793. The same decree commends: “Missas illas in quibus solus sacerdos sacramentaliter communicat, partim quod in eis populus spiritualiter communicat, partim vero quod a publico ecclesiæ ministro non pro se tantum, sed pro omnibus fidelibus qui ad corpus Christi pertinent, celebrantur” Ibid. C. VI.
But in the “Catechismus ex decreto Concilii Tridentini ad Parochos” of Pius V, I find an even more conclusive passage – “Nulla Missa ex communi usu ecclesiæ celebrata dicenda est privata. Ex quo facile perspicitur, omnes Missas communes censendos esse, ut quæ ad communem omnium fidelium utilitatem et salutem pertineant.”
The fruition of faith, “the evidence of things not seen,” is hidden from humanity. It is not within the power of any earthly tribunal to entertain the question whether these propositions are true. But it is for us to decide that belief in their truth is part of the faith of the members of the Church which has laid them down; that the Church of Rome is, in Ireland, a lawful religious institution; and that providing the celebration of the Mass for its members promotes their religion by supplying them with what they believe to be a benefit common to them all.
Therefore, a bequest for that object is a charitable gift within the Statute of Pious Uses, as interpreted by nearly a century of judicial decisions.
Holmes LJ: The question for decision in this case arises on a bequest in the will of Ellen McLoughlin, by which she directs trustees therein named to pay over the income of certain moneys in their hands, “from time to time, to the Roman Catholic Primate of all Ireland for the time being, to be applied for the celebration of Masses for the repose of the souls of my late husband, my children, and myself.”
If this be a bequest for purposes merely charitable, it would not violate the rule against the creation of perpetuities, and would, therefore, be valid; but if the purpose is not charitable, the rule would apply, and the gift must be held bad.
In The Attorney-General v Hall [1897] 2 IR 436 it was decided by this Court that a bequest to a Roman Catholic priest to be applied for Masses to be celebrated publicly in a specified Roman Catholic Church in Ireland, for the repose of the testator’s soul, is a valid charitable bequest, and exempt from legacy duty under 5 & 6 Vict c 82, sect 38. The only substantial difference between the gift in that case and the gift now under consideration is, that there the Masses were to be celebrated publicly in a specified Roman Catholic Church; and I am thus relieved, by a decision which I am bound to follow, from the consideration of all other questions save the one – whether the omission of a similar or equivalent direction in Ellen McLoughlin’s will deprives the bequest to the Roman Catholic Primate of the charitable character which would otherwise belong to it. All previous reported cases bearing on the subject were fully considered by FitzGibbon LJ, in The Attorney-General v Hall [1897] 2 IR 426, 442, and having carefully read his judgment, I agree in his comments thereon, and the proposition he deduces from them.
Although the conclusion announced by him was confined to gifts for the public celebration of Mass, his reasoning seems to me to be equally applicable to cases where the celebration might be, or is directed to be, in private, and that he was conscious of this himself is shown by his final declaration that he is not willing to limit the foundation of his judgment by accepting the decision in The Attorney-General v Delaney IR 10 CL 104. Still, whatever may be the view entertained by individual Judges, Delaney’s Case IR 10 CL 104 has hitherto been accepted as an authority, that a bequest for the celebration of Masses for a departed soul given in general terms, and without specifying whether such celebration was to be in public or in private, is not for a charitable purpose. FitzGibbon, LJ, says, in Hall’s Case [1897] 2 IR 426, 442, that previous to The Attorney-General v Delaney IR 10 CL 104 there is no reason to suppose that any difference was made between public and private celebrations.
Now, there is one point to which little attention seems to have been paid in Delaney’s Case IR 10 CL 104. The evidence is that Mass for a departed soul may be said in private, but in practice generally, and in Ireland almost universally, it is said in a public church.
The Lord Chief Baron deals with this in Delaney’s Case IR 10 CL 104 in the following words:
“In the present case there is not, on the face of the will – nor indeed, at all – an obligation that the Masses shall be celebrated in any specified public congregation in Ireland, or in public at all. The practice is that Masses said in pursuance of obligations imposed by such bequests are usually celebrated in public. The question is not whether the money may be applied to purposes strictly charitable, but whether the legatee is bound so to apply it: Morice v Bishop of Durham 9 Ves 399; 10 Ves 541. This cannot be effected by a usual or even by a universal practice.”
The case of Morice v Bishop of Durham 9 Ves 399; 10 Ves 541, where the language was so vague and general as to cover any benevolent or generous application of the bequest, does not touch my difficulty. Speaking with great deference, I am disposed to think that the passages read during the argument from the Missal or Mass-book show that the Mass is primarily, if not essentially, a public rite, although it may also be said in private; and I am satisfied by the evidence of Dr Delaney that the normal mode in Ireland of celebrating Masses for departed souls is in a church open to the public. If this be so, there is no reason satisfactory to my mind against holding that such a bequest as we are now considering refers to Masses celebrated in the usual way.
I am unwilling, however, to make this the only ground of my judgment; and I now propose to deal with the gift on the assumption that it directs in express terms that the Masses may be said either in public or in private.
On what ground is it argued that the bequest in The Attorney-General v Hall [1897] 2 IR 448 is charitable, while that in The Attorney-General v Delaney IR 10 CL 104 is not? In the last-named case the Lord Chief Baron, in answering the argument that as the Mass, even where celebrated in private, is, according to the Roman Catholic doctrine, for the benefit of all the faithful, and therefore charitable, says:
“In my opinion this is not so. To constitute a charitable use in analogy to the Statute of Elizabeth the purpose must be one which the Court itself can ascertain, and declare to be public or beneficial to the public. It cannot, in my opinion, 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.”
This puts very neatly the argument on one side. I shall now read in connexion with it the words of FitzGibbon, LJ, in Hall’s case [1897] 2 IR 448:
“I cannot conceive it to be the proper exercise of the jurisdiction of a temporal Court in a country professing to be governed upon principles of absolute religious equality to discuss religious doctrines. Nor can I conceive it possible that the liability to duty of a legacy for the benefit of a public minister of religion can in law depend upon considering the efficacy of his ministrations, or whether or how far benefits, which are conscientiously believed by the members of his own denomination to flow from prescribed ceremonies, are really attainable … It is enough to say that where, according to the religious belief of a body of persons recognized 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.”
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. This difference may be further illustrated by reference to the judgment of Andrews, J, in Hall’s Case [1897] 2 IR 426. He says that “the Court cannot determine that the celebration of the Mass in private confers a public benefit, although according to the faith of the Roman Catholic Church it may, and according to the belief of that Church it does, confer such benefit.”
But in the sentence immediately preceding he says – “A Court can, and according to the authorities ought, in my opinion, to determine that the public celebration of the Mass confers a public benefit by the religious edification of those members of the Roman Catholic Church who attend it.” I am wholly at a loss to know now, if the Court cannot determine whether the celebration of a private Mass carries with it public benefits, by what means it can determine that a Mass said in public confers such benefits. The reason it cannot determine the first-mentioned point is, because it is not a proper exercise of the jurisdiction of the temporal courts of a country where all religions are in law on an equality to discuss and determine the truth of religious doctrine. But the determination of the second point would equally involve the consideration by the Court of the truth of a religious doctrine. If I were obliged to arrive at a judicial conclusion as to whether the public celebration of the Mass confers a public benefit on those who hear it. I must consider the doctrine that is embodied in this rite. I might adopt the declarations of the Council of Trent regarding the sacrifice of the Mass, or I might adopt the strong language of the 31st Article of Religion in the English Book of Common Prayer. In the one case it would necessarily follow that the celebration, whether in public or private, would confer a public benefit; in the other case it would just as necessarily follow that no such benefit is possible. No Court of Justice in this country can be called on to decide such a question as this. What we can determine with certainty is, that it is part of the creed of the most ancient Church in western Christendom, of which the testatrix was a member that the Mass is a true sacrifice offered to God by the priest in the name of the Church whose minister he is that every Mass, whether public or private, is believed to bring Divine blessings to the world: and that all the faithful, present or absent, alive or dead, participate in those blessings. Now, if this be true, there can, I think, be no doubt that a bequest for the purpose of having private Masses celebrated would be charitable, and a temporal Court in Ireland, having no authority to decide for itself whether it is true or not must take as its guide the belief of the Church of which the testatrix is a member. I understand this to be the law, and on this ground I concur in holding that the appeal ought to be allowed.
The Incorporated Society v Richards
(1841) 4 Ir Eq R 177
Sugden LC: I am now prepared to decide the only remaining question in this case, namely, the validity of the devise to the plaintiffs contained in the will of Topham Mitchell. That was a gift of all his unsettled estate, after the death of his wife, to “The Incorporated Society in Dublin for the promotion of English Protestant Schools in Ireland.” It was contended on the part of the defendant, although but faintly, that those words do not mean that the devise was for the purpose for which this Society was incorporated, but constituted an absolute gift to them, unfettered by any trust. I cannot say that I feel any difficulty upon that ground, because the nature of the trust is expressed in the very description of the Society contained in the gift; and giving it to them in that character, the testator gives it charged with an obligation to devote it to those purposes, and the plaintiffs must take it, if at all, subject to that obligation. As I put it in the course of the argument, it is just as if the testator said “I give to the Governors of the Deaf and Dumb Schools,” or to the Governors of any other Charitable Institution – when, although he does not say in express terms that the gift is in trust for the charity; yet it must clearly be taken to be so.
Upon the other question, namely, the validity of the gift itself, the case has been elaborately argued; and in coming to a decision upon it, I have had the advantage of every aid which learning, and talent, and research on the part of the Counsel engaged could afford. The case is one of considerable importance, and the principal subject involved in it has long been matter of consideration and doubt, so that it is desirable that it should be settled, if possible, on some firm basis. The early statutes relating to gifts in mortmain to religious houses have been much referred to in the course of the argument. Those statutes undoubtedly included gifts to other bodies corporate as well as religious houses, although the latter were the principal objects of gifts in mortmain at the time they were passed, they were English statutes, and derived their force in this country from Poyning’s Law. I do not think, however, that any difficulty arises from them in the present case, because the plaintiffs here have a licence from the Crown to take in mortmain: and I do not think the time at which that licence was given is material. It was contended by Mr Brooke, that a writ of “ad quod damnum” should have issued; but I think the power given to the plaintiffs to take lands to a certain value, which, it is admitted, they have not exceeded, constitutes a sufficient answer to that.
As to the main question – the validity of this devise – the Statute of Wills in this country, which embodies the provisions of the two statutes in England, contains the same exception as to devises to Corporations which is contained in the second English statute. It has been strongly contended that it is, therefore, impossible to give validity to this devise, because it is a devise to a Corporation for its own purposes, although those are charitable; and the case of The Attorney-General v Flood has been relied on as a decisive authority for that purpose. It is not unimportant, with reference to this question, to keep in view the object and intention of the Legislature upon the subject. When all the early statutes for restraining gifts in mortmain, to which I have before referred, had failed in effecting the purpose for which they had been enacted, chiefly through the medium of uses, it was thought that all the mischiefs could be remedied by the Statute of Uses. That statute is erroneously called in conveyances “the statute for transferring uses into possession;” its more appropriate title would be, “the statute for transferring uses into possessions,” for it transfers the land itself, and not merely the beneficial interest in it. The Master of the Rolls, in his judgment on this case, when before him at 1 S & Sc 603 said, it was extraordinary that the Statute of Uses should save devises previously made. I cannot concur in that remark, for devises had then become common, and it was thought right not to interfere with existing interests. As to the operation of that statute in Ireland, we have very scanty means of information, and must refer to the law of England to shew, by analogy, from what the law there would be but for the 43rd of Eliz, what it is here, where there is no such act. On one side, it is contended that there is an inherent jurisdiction in the Courts of Equity in both countries which enables them to enforce trusts, although the conveyances by which those trusts are declared contravene the rules of law: a jurisdiction which is independent both of the Statute of Wills and of the 43rd of Eliz. Now, let us first see what is the true construction of the 43rd of Eliz, and what the view which it gives of the law of England at the time it was passed. It begins by reciting, “Whereas divers lands, tenements, &c., have been heretofore given, limited and appointed,” &c. Then it mentions all the different species of charitable uses, and after naming them all, proceeds, “Nevertheless they have not been employed according to the charitable intent of the givers and founders, by reason of fraud, breaches of trust, &c.; for remedy whereof, be it enacted, that it shall be lawful for the Lord Chancellor or Lord Keeper to issue a Commission.” &c. Then comes an important proviso “That neither this act nor any thing therein contained shall in anywise extend to any lands, tenements, &c., given or which shall be given to any college, hall, or house of learning within the two Universities of Oxford or Cambridge, or to the Colleges of Westminster, Eton, or Winchester, or any of them, or to any Cathedral or Collegiate Church within this realm.”
In the case of The Attorney-General v The Skinners’ Company 2 Russ 407 Lord Eldon is reported to have expressed some wonder at the retrospective effect given to this act; but I think that it must be an inaccuracy in the report, and that such an observation could never have proceeded from so great a master of Equity; for the words of the act are, “any lands, &c. heretofore given, or which shall hereafter be given.” The construction given to the act in many cases was, no doubt, forced and unnatural; but I do not see how it could be complained of that a retrospective operation has been attributed to it. Let us see, however, whether, on the face of this act, we cannot ascertain what the law of England was before it was passed. It appears, I think, as clearly as possible from the object of the statute, and from its provisions, that the charitable uses mentioned in it were good before it passed, and would have remained good if it had never passed. Its object was not to give any additional power of alienation for charitable uses, which was extensive enough, if not too much so, before it passed; but to create a new jurisdiction, which was to discover and remedy the abuses then existing, and to give to the charities the property that really belonged to them. There is not a word in it to show that those gifts were bad before it passed, but, on the contrary, it appears to me that there is a great deal in it to shew that they were good; it recites:
“Whereas lands, tenements, hereditaments, &c., have been heretofore limited, appointed, and assigned,” enumerating the particular charitable uses to which they had been devoted, and then it proceeds, “which lands, tenements, &c., have not been employed according to the charitable intent of the givers and founders thereof, by reason of frauds, breaches of trust, and negligence in those who should pay, deliver, and employ the same.”
Now, how could the parties interested in the property be guilty of fraud, if the dispositions of that property had been illegal? Then the Commissioners, whom the act authorises the Chancellor to appoint, are to inquire
“of all and singular such gifts, assignments and appointments, and of the abuses, breaches of trust, negligences, misemployments, not employing, concealing, defrauding, misconverting or misgovernment of any lands, tenements, &c., heretofore given, limited, appointed or assigned, or which shall hereafter be given, limited, appointed or assigned for any the charitable and goodly uses before rehearsed.”
There is not a word in the act to render any gift valid that was invalid before but it enforces what was valid before it passed; so that if I were to decide on what was the law of England before the passing of that act, I should say, that the act itself proves to demonstrate that those charitable trusts were binding, although it was necessary to adopt additional means of guarding against the breaches of trust mentioned in the preamble, and that it meant to enlarge the means of carrying into effect charitable uses, but not to affect the validity of the disposition of property to those uses. The proviso in the act, “That neither this act, nor anything herein contained, shall extend to any college,” &c., cannot fail to strike us as most important with reference to this part of the subject, when we consider what the law respecting them was before the act passed. In Flood’s Case Hobart 136 the Court said:
“We agree that the devise was void at law, because the Statute of Wills does not allow devises to corporations; but yet we hold that it is clearly within the relief of the statute of Elizabeth under the words ‘limited and appointed;’ and it was likewise held by us that the proviso in the statute which exempts colleges, is only intended to exempt them from being reformed by commission, but not to restrain gifts to them.”
If there are any words which would exempt colleges from the provisions of the act, I think the words in the proviso that I have referred to have the operation; but notwithstanding that it is declared by the Judges that gifts to colleges are good, manifestly because such gifts were good before the act passed: they were good before the act, and the act left them as it found them. I consider, therefore, that the object of the statute of Elizabeth was to remedy the abuses that then existed in the management of charitable property and to give new jurisdiction for that purpose, and more extended remedies.
I have dwelt thus upon the construction of this act, because I think the right understanding of it will remove a great many of the difficulties in this case. With respect to the decisions subsequent to the act, I would observe as to one of them, Bennett College v The Bishop of London 2 Black 1132, that it is a decision that I have never known followed: three of the Judges held that a devise to a college for a charitable trust, was good, not only in Equity as an appointment, but that it was good even at Law: because they considered that the 43rd Eliz was pro tanto a repeal of the exception in the Statute of Wills relating to devises to corporations. That is a decision which I must say I do not see any ground to support. The statute of Elizabeth does not turn an equitable estate into a legal one; nothing can be more simple than the machinery of the statute, it directs that the Chancellor or Lord Keeper shall issue a commission to inquire into the alleged abuses: and it became a question afterwards whether in consequence of its provisions, the Attorney-General had not lost his power of proceeding by information. How is it possible then to say, that legal validity is given to such devises by that act?
Before I refer to the other English authorities that have been relied on, there is one authority which I would wish to call particular attention to – a case which has frequently been cited and never disapproved of, and which I consider a very high authority – that is Sonley v The Clockmakers’ Company 1 BCC 81. There a testator devised freehold estates to his wife for life, with remainder to his brother in tail male, with the ultimate remainder to the Clockmakers’ Company, upon trust to sell and divide the produce of the sale among his nephews and nieces. The testator’s widow and brother died in his lifetime, and the devise to the corporation being void at law, the question was, whether the heir took beneficially or subject to the trust. Baron Eyre, sitting for the Chancellor, decreed that although the devise was void at law, yet that the trust was sufficiently created to fasten itself upon the legal estate which descended to the heir, and that the heir was a trustee for the uses of the will. It is perfectly manifest, that the decision in that case must have proceeded on the ground of there being an original inherent jurisdiction in the Court to sustain such a devise, and upon nothing else – for the English Statute of Wills 34 Henry 8, c 5 had expressly excepted devises to corporations out of its operation. A gift to a person or a body not capable of taking, is the same in effect as any other case where there happens to be no trustee; the Court fastens on the person who takes the property, as in that case of Sonley v The Clockmakers’ Company, and makes him carry into effect the trust intended by the testator. That case of Sonley v The Clockmakers’ Company, shews that although the Statute of Wills does not allow a devise to a corporation, yet that such a devise upon trust for a family or an individual is good in the view of this Court, which, disregarding the legal effect of the devise, will fasten the trust upon the person who takes the property, and compel him to perform it.
With respect, however, to the cases which have been decided before the statute of Elizabeth, I must say there does not appear to be any case in which the decision itself is an authority directly bearing on this case: Simmoms’ Case Duke 163 has been relied on for that purpose; but it is perfectly clear on looking into that case that the word “sold” which is used in the report, does not refer to a sale for money, but means “bargained and sold,” and that the bargain and sale was not enrolled in due time – and the remarks made by Serjeant Warren are perfectly correct, viz, that this case was decided on the general jurisdiction of equity to relieve against accident, and that the same relief would be given in any similar case of a trust for a private family. That case proves what Sonley v The Clockmakers’ Company proves, that a gift to a person or body incapable of taking, for the benefit of a third person, will be established by a Court of Equity, and the defective conveyance will be made good. It is no answer to say, that relief is given to a purchaser or to the family of the testator, because there exists a valuable or a good consideration which Equity favours, and for which alone it will aid a defective conveyance. That is assuming the very question in dispute, because the argument on the other side is, that charity is in the view of a Court of Equity a good consideration, and that, therefore, a defective conveyance to a charitable use will be aided in equity, and that the Court will support the charity although the legal title be defective. There was another case cited from Duke s154, and relied on a good deal. It was this:
“In the 11 Hen 6, a gift was made to the intent to find a Chaplain ‘ad divinia celebranda,’ until the feoffor or his heirs should procure a foundation, &c.; there was no employment until the reign of King Edward the Sixth; and, therefore, in the Queen’s time, one Payne purchased the land as a concealment: after a commission being awarded upon this statute, the Commissioners inquired and found the gift, and thereupon decreed the property to another from Payne; but afterwards this decree was made void by the Lord Chancellor, because the use limited to find a Chaplain ‘ad divina celebranda’ was no use within the statute inquirable; but the Chancellor, by his Chancery authority, may decree the lands to the first use.”
It is evident, however, that the statute there referred to is the statute against superstitious uses, 1 Edw 6, c 14, and that it has nothing to do with the statute of Elizabeth.
The cases in Duke pp 360, 361, if we look at the dates, bear exactly on this case; but I am not disposed to place much reliance upon the dates ascribed to them; they appear to me so very uncertain, and the resolution at page 361 only proves that Equity would relieve where there was a defective conveyance or gift in favour of a charity after the statute, which is beyond all doubt.
The Mayor of Reading’s case was, I think, decided after the statute, and may therefore, be disregarded as not being an authority on either side. There was an Anonymous case cited by Mr Moore, from 1 Ch Cases p 267, which struck me at first as a strong case in favour of his client. The case was this. After the statute of Elizabeth a man devised his house in London to a charitable use, which was a void devise, because of his misnaming the Corporation, but the Lord Keeper decreed in favour of the charity, “though,” it is added, “before the statute no such decree could have been made.” On looking, however, more closely into the case, it appears to have nothing to do with the subject at present before the Court, because something intervened between the two passages that were cited, and that was a discussion whether after the act of Elizabeth it was necessary to issue a Commission, or whether relief might be had by means of an Information. Properly the case stands thus: “The Lord Keeper, notwithstanding, decreed it to be a good appointment for charitable use. But then it was objected that the process appointed by the statute ought to be adopted, and that a Commission ought to issue and an inquisition be taken under it, and that the plaintiffs had no right to sue by original bill;” then comes the concluding observations cited by Mr Moore: “But the Lord Keeper decreed the charity, though before the statute no such decree could have been made.” That observation does not mean that before the statute no such right existed, but that there were not the same means of enforcing it. In the case of The Attorney-General v Newman 1 Ch Cas 157, the same point arose, and no positive opinion was pronounced by the Court; but we know at the present day that in such cases a Commission never issues: relief is invariably obtained upon an information: and that circumstance, of itself, goes a good way to prove that the Court possesses a jurisdiction, independently of the statute, to sustain such proceedings. The machinery provided by the statute has entirely ceased to operate, but the equity is still constantly enforced; and that equity must, it appears to me, be sustained by some jurisdiction not derived from, or dependent upon, the statute of Elizabeth.
The principal authorities in support of this position are, certainly, no more than dicta, but they are numerous and come from high authorities, and I shall now refer to them in order. In Eyre v The Countess of Shaftesbury 2 P Wms 118, the following passage occurs in the judgment of Sir Joseph Jekyl, one of the Lords Commissioners: “In like manner in the case of charity, the King pro bono publico, has an original right to superintend the care thereof, so that abstracted from the statute of Elizabeth relating to charitable uses, and antecedent to it, as well as since it has been every day’s practice to file information, in Chancery in the Attorney-General’s name, for the establishment of charities.” Nothing can be stronger, to shew that the law upon this subject was the same before, as after the passing of the statute. I do not, however, look upon this as an authority declaring what the law is, but as an indication of what the learned Judge then considered, from his knowledge and experience of the law of England, that law to be.
There is an important observation of Lord Northington, on this subject, in the case of The Attorney-General v Tancred 1 Eden 14.
“The only doubt is, whether the Court should supply this defect for the charity under the statute of Elizabeth; and I take the uniform rule of this Court before, at, and after the statute of Elizabeth, to have been, that where the uses are charitable and the person has in himself full power to convey, the Court will aid a defective conveyance to such uses. Thus, though devises to Corporations were void under the statute of Henry 8th, yet they were always considered good in equity if given to charitable uses.”
In the same book the following passage occurs in a judgment of the same Judge, in the case of The Attorney-General v Bradley 1 Eden 487:
“It is true, and I am sorry for it, that there are old precedents in this Court where, by a perverse and mistaken construction of the statute of Elizabeth, this Court has enabled persons to give to charities, who had no power to do so; and it is as true, that these precedents not only injured private families, but became a public nuisance, which called upon the Legislature to interpose and stop them. But I found the equity of this Court liberal and impartial, and no respecter of persons, and please God, I will leave it so.”
In that I do not see that there is any thing to impeach the former observation: he is only stating what is an undoubted fact, that such a construction had been given to the statute; but there is nothing in it to rebut the existence of a jurisdiction in this Court independently of that statute. It is said that the authority of that case of The Attorney-General v Tancred was shaken by the observations respecting it, made by Lord Brougham in the case of The Attorney-General v Sibthorpe 9 Russ. & My. 116; but I cannot concur in that. The observations which have been referred to, appear to me to leave its authority quite unaffected. Lord Brougham only shews that there was an error in the report as to a particular matter of fact, which does not affect the general opinions expressed by Lord Northington, as to the inherent jurisdiction of the Court before the statute.
The next observation upon this point is by CJ Wilmot Wil Cas & Op 24: “The King, as parens patriæ, has the superintending power over all charities, abstracted from the 43 Elizabeth, and antecedent to it (2 P Wms 119), and that paternal care and protection is delegated to this Court.”
Lord Manners, in The Attorney-General v Flood Hayes 630, entirely adopts what fell from Lord Macclesfield in Eyre v The Countess of Shaftesbury. “The Court of Chancery,” he says, “having always exercised jurisdiction in matters of charity, derived from the Crown as parent patriæ, has proceeded as I have done.”
There is, however, another observation of Lord Manners, which may be set off against the observation by the same Judge, just cited. In the same case he says:
“By this mode of proceeding, every devise to a Corporation for charity, though void at Law, would be good in a Court of Equity. But has this ever been done? In England, indeed, it has been done, but not by any original inherent authority of this Court, but under the sanction of the 43rd of Elizabeth.”
In the case of The Attorney-General v The Skinners’ Company 9 Russ 420, Lord Eldon makes the observations which have been so much relied on in the argument and certainty he speaks with considerable caution. “It may not be quite clear,” he says, “that these instruments, originally void, were held to be valid merely by the effect of the statute of Elizabeth. It might have been supposed that there was in the Court a jurisdiction to render effective an imperfect conveyance for charitable purposes; and the statute has, perhaps, been construed with reference to such the supposed jurisdiction of this Court, so that it was not by the effect of the 43rd of Elizabeth alone, but by the operation of that statute on a supposed antecedent jurisdiction in the Court, that void devises to charitable purposes were sustained. Out of that supposed jurisdiction this construction of the statute may have arisen.” I think, however, it is impossible to read those observations without coming to the conclusion, that Lord Eldon had formed a very clear opinion in favour of the inherent jurisdiction of this Court. That view of the subject had evidently been pressed upon him in the argument; and when he comes to deliver his judgment, he does not find any fault with it, he does not condemn it at all, he leaves the question exactly where it was: and from his not expressing any disapprobation of the doctrine in question when thus brought under his notice, it must, I think, be taken, that the opinion of that eminent Judge was in favour of it.
In The Attorney-General v the Master of Brentwood School 1 My & Kee 376, the following passage occurs in the judgment of Sir J Leach p 390:
“It has been argued that the title of the possessions of the school, and the poor people, depends upon this decree, and that the decree is to be considered as the voluntary act of Wystan Browne, and that he was substantially the founder of those charities in the view which I take of this case, if it were so considered, the decree to be made in this case would not be thereby affected. But I am of opinion that, although at this time no lands so devised, were in Equity bound by a trust for the charity, which a Court of Equity would execute.”
As the period referred to in that passage was antecedent to the statute of Elizabeth, it shews clearly what Sir J Leach’s opinion was upon the subject now in controversy; and there is not any thing, I think, in the case of The Attorney-General v The Skinner’s Company, which at all diminishes the weight of those observations. In that case of The Attorney-General v The Skinners’ Company 5 Mad 200, the same learned Judge says:
“It is very singular, but certainly true, that a devise to a Corporation for a charitable use before the 43rd Elizabeth, has been established as a good appointment under that statute. It is a very extraordinary doctrine. The Legislature cannot have meant that: it must have meant by the use of the word ‘appointment’ in that statute, a legal appointment.”
That is perfectly correct, but it is perfectly consistent with the observations made by him in Attorney-General v The Brentwood School. Neither do I see that there is any weight in the objection that his statement of the law in the latter case is incorrect, because of his overlooking the statute of Philip & Mary, which was passed before the will in that case had been made. At most, those observations would only shew that he had made a mistake upon that particular point, and would not detract from the weight of his general observations. But, in point of fact, he was quite correct in those observations. He said that the law did not authorise such gifts to charity as those in that case; and in that he was perfectly well founded, because the statute of Philip & Mary did not include such gifts as that to the Grammar School there. Porters’ Case 1 Co Rep 22 decided that a Grammar School was not within the 23 Henry 8th, c 10, and it shews by analogy, therefore, that such a School was not within the statute of Philip and Mary, so that when carefully considered, there is nothing in the observations of Sir J Leach, in the latter case, to weaken his observations in The Attorney-General v Brentwood School.
The last authority of this description which I shall refer to, is the case of The Attorney-General v The Corporation of Dublin 1 Bligh NS 347. I agree with Sergeant Warren in the observations which he made upon the general import of this case. It was decided, certainly, in part upon the existence of a right to an account against the defendants; and Lord Eldon was particularly anxious to shew that the case had not been decided upon the ground of charity merely. In order to see, therefore, whether I am to give any weight to the observations used in that case, I am bound to look at it carefully with reference to the objections which have been made to it, and see whether they were intended to be general observations applying to charity generally, or merely used by the learned Judge for the purpose of shewing that the court had the power of investigating the accounts in charity cases. The observations of Lord Redesdale are:
“We have been referred to the statute of Elizabeth with respect to charitable uses, as creating a new law upon the subject. That statute only created a new jurisdiction; it created no new law – it created a new and ancillary jurisdiction – a jurisdiction borrowed from the elements I have mentioned – a jurisdiction created by a Commission to be issued out of the Court of Chancery, to inquire whether the funds given for charitable purposes had not been misapplied, and to see to their proper application; but the proceedings of those Commissions were subject to appeal to the Lord Chancellor, and he might reverse or affirm what they had done, or make such order as he might think fit for reserving the controlling jurisdiction of the Court of Chancery as it existed before the passing of the statute – and there can be no doubt, by information by the Attorney-General, the same thing might be done.”
Giving all due weight to the observations made by Sergeant Warren upon that case, I think it impossible to say that Lord Redesdale did not mean that there existed an original jurisdiction in this Court in such cases before the statute, which might have been exercised; and that the statute only introduced new machinery, but gave no new law.
This case concludes the authorities in support of the doctrine contended for. The case of The Attorney-General v Bowyer 3 Ves 714, certainly, as far as it goes, is an authority on the other side; for in that case Lord Loughborough says at p 726:
“It does not appear that this Court at that period had any cognizance upon informations for the establishment of charities prior to the time of Lord Ellesmere: as far as the tradition in times immediately following goes, there were no such information as this upon which I am now sitting, but they made out the case as well as they could by law.”
It is certainly true, looking at the earliest cases upon this subject, that they were a great deal mixed with law; in almost every case the Judges of the Common Law were called in to assist. The cases, however, to which I have referred before, prove that charity was an object favoured by Courts of Equity before the statute of Elizabeth; and I apprehend, therefore, that a devise to a Corporation for a charitable use is a perfectly good devise. The case of Jenner v Harper 1 P Wms 247 has been referred to as an authority against the jurisdiction of the Court; but I do not see anything in it in the way of my decision – for the doctrine in that case, is merely that a devise to a charity after the Statute of Frauds must be attested in the manner required by that statute, and it depends upon the effect of the Statute of Wills and the subsequent Statute of Frauds.
If I had, therefore, after considering all those cases, to decide the present case, judging by analogy to the law of England, and putting out of consideration the statute of Elizabeth which does not exist in this country, I should say that an inherent jurisdiction existed in this Court to sustain the devise in question, and I should enforce the Equity accordingly. The case, however, does not depend entirely upon that: there is a statute in this country which is not often referred to, but which is, I think, entitled to more consideration than is usually given to it; the statute I refer to is the 10 Car 1, Sess 3 c 1, commonly called “The Statute of Pious Uses.” The first section enacts “that all archbishops and bishops of this kingdom and their successors, shall and may from the time of any grant or estate to them or any of them, made or to be made either by our late Sovereign King James the First, of happy memory, or by the King that now is, or by any other person or persons, bodies politic or corporate whatsoever, of any manors, lands, tenements, &c., unto the use or upon trust and confidence unto, or for, the erection, maintenance or support of any college, school, lecture in divinity, or in any of the liberal arts or sciences, or for the relief or maintenance of any manner of poor, succourless, distressed or impotent persons, &c.” After having enumerated the different gifts, it proceeds to enact:
“That they shall be taken and construed to be good and effectual in law, according to the purport and true intent and meaning thereof; and that the said Archbishops, Bishops, and their successors, &c., shall and may be compelled by subpoena out of the High Court of Chancery, or by petition before the Lord Deputy and the Privy Council, to execute and perform all and every the said trusts and uses, according to the true intent and meaning of the charters, deeds, and conveyances to them in that behalf made, or hereafter to be made.”
It is said, and with truth, that this statute is confined to gifts to Archbishops and Bishops; and, therefore, it is contended that it has no operation in a case like this; but would it not be extraordinary that the Legislature should pass an act relative to Bishops and Archbishops, providing for their applying to the proper objects property vested in them upon trust; but that if such gifts were made to archdeacons or any other churchmen, they should be allowed to appropriate them as they pleased? It occurred to me on reading the statute, that there must have been some particular abuse existing at the time, which required correction, and at which it was particularly pointed. I found, accordingly, in Bishop Mant’s History of the Church of Ireland an explanation of the history of the act. There is a letter given there Vol 1, p 474 from the Lord Deputy (Wentworth) to Archbishop Laud, in the year 1634, a short time before the act was passed, in which he says:
“The Bishops aliening their very principal houses and demesnes to their children, to strangers, farming out their jurisdiction to mean and unworthy persons; the schools which might be a means to season the youth in virtue and religion, either ill-provided, ill-governed for the most part, or – which is worse – applied sometimes to the maintenance of popish schoolmasters; lands given to those charitable uses, and that in a bountiful proportion, especially by King James of ever blessed memory, dissipated, leased forth for little or nothing, concealed contrary to all conscience and the excellent purposes of the founders; all the monies raised for charitable uses converted to private benefits.”
The Archbishop, in his reply Vol 1, p 476, says that some of the evils may be easily corrected by keeping the Clergy, “especially the Bishops, from their sacrilegious alienations. For the schools – if your Lordship will remedy anything, you must take the same way of restoring their temporalities. For the third thing your Lordship mentions, I conceive the remedy is more easy; for there you have nothing to do but to turn the money given to charitable uses, to the use intended by the donor.”
This it was which led to the passing of the act; and accordingly, it begins by stating what the Lord Deputy wrote to Laud, that it is “for the maintenance and execution of pious uses.”
This explains why it was that the Archbishops and Bishops were mentioned in the act. They had a great deal of property in their hands intended for charitable purposes which they applied to their own use. The act was intended to remedy this gross evil, and to prevent for the future the misapplication of charity property by the heads of the church. The act, however, gives no new jurisdiction to this Court, although it introduced the proceeding by petition before the Lord Deputy and the Privy Council. The Lord Deputy, seeing the want of power in the Privy Council to remedy the evil, wrote, as we have seen to Laud, and this act was passed early in the next session of Parliament. So far, however, from its affecting in any way the jurisdiction of this Court. I think it is a clear parliamentary recognition of the jurisdiction which existed at the time. It recognises the authority residing in this Court, which could have compelled any man to perform a trust; but as against those particular classes of persons who were possessed of great power that might enable them to disregard its decrees, it establishes a new jurisdiction. I have carefully compared the charitable uses mentioned in this act, with those enumerated in the 43 Eliz and I find there is very little difference between them, although the order in which they are put is different in both. There is scarcely one in the act of Elizabeth which is not to be found in the Irish act; but the latter goes farther than the former, with respect to the liberal arts, and it also includes trusts “for the maintenance of any Minister or Preacher of the holy Word of God,” which are not included in the former.
This statute proves that all the uses mentioned in it were legal at the time it was passed, independently of its operation. A particular mode of enforcing them is given in certain cases, but their legality is not created by it; it is treated as pre-existing, and it is open to all the observations upon that point which I made already upon the statute of Elizabeth. But we come now to a more important part of the statute. After describing the uses which it was intended should be within the remedies given by the act, and adding to that these words, “And for any other like lawful and charitable use and uses warranted by the laws of this realm,” it enacts thus, “they are and shall be taken and construed to be good and effectual in law, according to the purport and true intent and meaning thereof.” Now, can any man doubt for a moment that the statute, when it speaks of other like lawful uses, means to declare lawful those uses which were enumerated in the early part of the section? These concluding words, therefore, in my opinion, prove, beyond the possibility of doubt or cavil, that the Legislature treated all those uses as lawful. I consider the act of Charles as moulded on the 43rd Elizabeth, and that whatever the latter gives in England is given by the former in this country. The Irish act gives a powerful remedy for breaches of such trusts, in certain cases, without coming into this Court upon information, namely, by enabling the party complaining of them, by a petition to take the heads of the Church before the Council Board, there to answer for the misapplication of the funds: and is left every other person to the ordinary course of law, to compel them to perform those trusts which they were subject to.
I have been very careful in forming any opinion upon this act, because there have been several opinions expressed upon it, and I am not very fond of new discoveries in such matters. I have, therefore, read the act over several times, to see whether I was right, and have only been confirmed in the view I originally took of it. The opinions to which I have just referred are certainly open to some observations, although they are expressed by high authorities. In The Attorney-General v Flood Ha & Jones Ap 30, the late Master of the Rolls says:
“In discussing the validity of this devise, it becomes first essential to consider whether the 10 Car 1, sess 3, c 1, is in any manner analogous in its extent or provisions to the 43rd of Eliz c 4; for if it be, the case of the relators is, in my opinion, clear – and they would have both the legal and equitable interest in the same manner as either of the universities of England clearly would. I am not aware of any Irish statute material to consider, except the Car 1 sess 3, c 1; and that cannot, I conceive, by any possible construction be extended beyond the grantees, the Archbishops and Bishops named in it, although a beneficial remedial law.”
Now, as the Master of the Rolls does not refer to the other provisions of the statute, but rests his opinion solely on the literal expressions appearing on the face of the act, I cannot consider that as an authority of much weight. In the report of the same case when before the Lord Chancellor, assisted by Lord Downes, CJ Hayes 624, the latter is represented to have said:
“It is then contended, on the part of the college, that supposing the statute of Elizabeth not to be declaratory, or to shew that the law was the same before as after its enactment, and although that statute does not exist in terms in Ireland, yet that the 10 Car 1, Sess 3, c 1, is in substance the same as that statute; and that, of course, the law of Ireland is the same as that of England with respect to devises to Corporations, after the passing of the 43rd Elizabeth. The college must, according to that, take to their own use. Now, what words are there in the statute of Charles, which can lay any foundation for allowing devises to eleemosynary Corporations and others; – there is not a word about Colleges and Corporations in it. So that the statute of Charles, not saying a word upon the subject would repeal the whole exception in the Statute of Wills, without a single expression occurring in the act capable of being tortured into such a meaning.”
Lord Downes is there represented to say, that there is not a word in the statute about Colleges or Corporations. It is strange how such a mistake could have arisen in his Lordship’s mind, because the first thing enumerated in the act is a provision for assisting “the erection, maintenance and support of any College, School, Lecture in Divinity,” &c. There is a mistake, therefore, on the part of the learned Judge, as to the contents of the statute; and, therefore, I cannot consider his opinion entitled to all the weight ascribed to it. It must have arisen either from some mistake of his own, or from some misapprehension of the Reporter. In the same case Hayes, 634, Lord Manners says,
“In the same year with the Statute of Wills in Ireland, was passed another statute, the 10 Car 1, sess 3, c 1. – As far as I understand that statute, it does not apply to the present case at all; it seems applicable only to other conveyances than wills. It is enough, however, to say, that Archbishops and Bishops alone are the persons mentioned in it, and grants to them only are protected by it. It is certainly a very imperfect statute. It makes those persons who are specified in it liable to a subpoena from Chancery, to account for such charitable donations as should be given to them in trust. Surely, no act of Parliament could ever be necessary to give such a jurisdiction as that to the Court. If a Corporation be a trustee, it is accountable to this Court just as much as an individual. What the statute meant, I am really at a loss to know, and I am utterly ignorant what jurisdiction which the Privy Council could have had over the matter comprised in it; but it is enough to say, that it does not apply to this case.”
The answer to that is – not that the learned Judge was ignorant of any jurisdiction the Privy Council possessed when the statute was passed but that he overlooked the fact, that by that statute the Legislature gave the Council a jurisdiction which it had not before. I am compelled, therefore, by the nature of the opinions which have been just mentioned, not to give them the weight which, from the high authority of the Judges who expressed them, they would otherwise be entitled to. The present Master of the Rolls, in his judgment on this case, when before him on the demurrer, says 1 Sa & Sc 609, “In Ireland, the statute 10 Car 1, sess, 3, c 1, is entitled ‘An act for the maintenance and execution of pious uses.’ It is very imperfect as it appears in the Statute Book, and evidently some portion of the statute was by mistake omitted.” I do not quite understand the force of this observation, nor do I think that, even if well founded, it touches the question.
As I said before, however, I am not enamoured of my own construction of that statute; and, if shewn to be incorrect, I will immediately retract my opinion upon it: but even, independently of that statute altogether, there is, I think, abundant ground for the decision I am about to pronounce. The law of Ireland stands now, I think, upon the same footing in this respect as the law of England. In England, the machinery of the statute of Elizabeth, is no longer used, and relief is always given upon an information. If I be right, therefore, in considering that the statute of Charles in this country is a parliamentary recognition of such devises, the law of the two countries will be precisely parallel. Such, I think, will be the result of an examination of the authorities; and, if so, I should be glad that the law upon this subject in the two countries was still further assimilated, by extending to this country the provisions of the 9 G 2, c 36, to which there is no corresponding statute in this country. This is, in my view of the matter, the only difference now existing between the laws of the two counties upon this subject.
I was very much pressed by the case of The Attorney-General v Flood; and certainly, if the view of the subject there taken be correct, it may be questioned whether this case would not require the consideration of a higher tribunal. That case was decided by very learned persons, who had much greater opportunity of knowing the law of this country than I possess; but it is my duty to decide according to my own judgment, and, after a most careful consideration of the authorities, I cannot consider that decision as a binding authority.
An objection has been taken to the terms of the devise here, and it has been contended that there cannot be a devise to this Corporation for the charitable purpose mentioned, because the Society is incorporated solely for this charitable purpose – that it is, therefore, a gift to a Corporation for its corporate purposes, which is not allowed by the Statute of Wills. If, however, we look to the cases, it will be seen that a gift may be made by devise to a Corporation for a charitable purpose, precisely as it might to a private person; and, therefore, I cannot see why this devise is void. Let us, however, try the question by putting hypothetical cases. Suppose a devise was made to this Corporation in trust for me, it could not be disputed that that would be a good devise. For that, Sonley v The Clockmakers’ Company Ante is a clear authority. If, therefore, a devise to a Corporation upon trust for an individual is good, a devise to them upon trust for a charity must be equally good, because the law favours charities. Both devises are void at law, but this Court fastens the trust upon the land into whatever hands it comes. Suppose, again, a devise to a third person, upon trust for this Corporation – that is admittedly good; or even a devise to another Corporation upon trust for this is good – if my decision in the present case be right. Let us put this Corporation aside, and suppose a devise was made to any individual or any other Corporation for maintaining the Protestant Schools of Ireland, that would undoubtedly be good. But, then, it is said this devise is void, because the Corporation to whom it is made is to employ it for its corporate purposes – which are admittedly charitable. But I cannot see how the union of an estate which is void at law, and of an equitable estate which can be made available in this Court, in the same party, will defeat what would otherwise be a good devise. The gift for charitable uses is the subject upon which the trust attaches – the charitable use is the trust to be performed, which this Court will enforce without reference to the medium by which the estate was sought to be conveyed. I feel, therefore, with very great confidence, that I have formed a correct opinion in this case, and I have come to a conclusion as clear as any I ever arrived at in my life, that this is a perfectly good devise – not at Law, I admit but perfectly good in this Court; and I must, therefore, give a decree for the plaintiffs according to the prayer of the bill.
With respect to costs, the defence which has been set up is certainly not one that is ever favoured in that respect. Any one setting up such a defence must be prepared to pay the costs of it, if unsuccessful; and, certainly, if the bill had been filed within a reasonable time, if there had not been so much laches on the part of the plaintiffs, I might have made a different arrangement of the costs from what I am now disposed to do. The manner in which I purpose disposing of the costs at present is this: I will make the defendant Richards pay all the costs occasioned by his setting up the Statute of Limitations. Then, as to the other points set up in defence – although it does not lie well in his mouth to set them up, yet, as there were difficult points of law arising on this will which it was necessary to decide – I think it right to give no other costs up to the hearing. The subsequent costs will depend on the results of the accounts. The accounts I shall direct to be taken on this footing: the late JN Richards representing the life interest of Mrs Mitchell, and being also an encumbrancer, was bound to keep down the interest on his own encumbrance, out of the rents, and to apply the surplus rents in liquidation of the principal; the sum received on the sale of part of the lands must be brought into the account at the time it was received, and applied in reduction of the debts. If there be any difficulty in drawing up the decree, I should be glad if the case were mentioned while it is fresh in my memory. The parties will see that I have decided the legal questions upon their request, and have not taken it upon myself to decide them.
Browne v King
[1885] 17 LR Ir 448
Porter MR: The question in this case arises on the validity of a limitation in a deed of the 27th April 1853.
The plaintiff claims to be entitled to this property as heir-at-law of Matilda Browne, asserting that the ultimate limitation in the deed is invalid as an attempt to create a perpetuity. Two views are suggested against that contention: First, that it is a gift to the persons who should be under the age of twelve years, and children of the tenantry of this property in Mayo, at the death of the tenant for life. Whatever may be the meaning of the word “tenantry,” whether it means the tenants in the lifetime of Matilda Browne or the tenantry at any other time, there was plainly no intention to vest an estate in fee in infants under the age of twelve years. The limitation is that the trustees of the deed should pay the rent, issues, and profits to the Roman Catholic clergyman entrusted with the spiritual care and superintendence of the Roman Catholic inhabitants of the parish of Robin, in the county of Mayo, for the purpose of having the said rents, issues, and profits applied by the said clergyman for the benefit of the children under the age of twelve years of the tenantry of Matilda Browne. The intention plainly was to constitute, out of the rents, issues and profits, a fund in the hands of the Roman Catholic clergyman for the benefit of such children in perpetuum, not for the purpose of a sale of the lands, and dividing the proceeds of the sale among the children, whatever their number might be. That would be contrary to the plainly expressed intention. Secondly, it is contended that the limitation in the deed can be sustained as a gift for a charitable purpose. I wish I could adopt that view, because it seems to me that it would carry out the intention of the settler, which was a benevolent and kind one. Is this, then, a valid charitable gift for the children of the tenantry of this estate under the age of twelve years? An affidavit has been put in evidence to show the state of this property. It appears that there are a number of families on this estate, and that some of the children are necessarily objects of charity. Morice v The Bishop of Durham 7 Ves 399; 10 Ves 522 decides, that a bequest in trust for such objects of benevolence and liberality, as the trustee in his own discretion shall most approve, cannot be supported as a charitable legacy if some of the objects are charitable and some not. Where the principal part fails the whole fails. See 10 Ves 538.
A number of cases were relied on by the defendants to show that this is a charitable gift. In Rogers v Thomas 2 Keen 8, a testatrix bequeathed to the inhabitants of Tawleaven-row all that might remain of her money after her lawful debts and legacies were paid, and Lord Langdale held that the persons found to be inhabitants of Tawleaven-row were entitled to the residue of the personal estate, but not on the ground that the bequest was a charitable one. That case therefore is not an authority in the present case.
In The Attorney-General v Comber 2 Sim & St 93, a bequest to the widows and orphans of a parish was held to be a good charitable bequest. Sir John Leach said that the gift could not in its nature have proceeded from general benevolence to particular individuals; it must have proceeded from general benevolence towards two classes of persons who were suffering under a common circumstance of destitution or privation, and is necessarily to be confined to such of those two classes as are within the scope of general benevolence, and he acted upon this bequest as if the expression had been to the poor widows and orphans of Lindfield, and declared this to be a charitable use.
Those observations show the grounds on which the case was decided. The bequest was to the “widows and orphans of the parish of L – .” The word “parish” has had weight attached to it in more than one case in England in determining charitable bequests. It has a peculiar force in an English will by reason of the parochial organisation by which the poor-law is administered in England. That organisation does not exist in Ireland. The word “parish” is not coupled in this deed with the children for whose benefit the bequest is given; the parish of Robin is used only to describe the residence of the clergyman who is to apply the fund. It was stated at the bar, and not denied, that the parish of Robin is eighteen miles from this property. In The Attorney-General v Comber 2 Sim & St 93 the gift was “to the widows and orphans.” They were, as Sir John Leach says, “two classes of persons who were suffering under a common circumstance of destitution or privation.” The “education and preferment of orphans” is one of the charitable purposes enumerated in the statute, 43 Eliz c 4.
In Thompson v Corby 27 Beav 649 the gift was to “twenty aged widows and spinsters in the parish of Peterborough,” and it was held to be a good charitable gift. Widows or spinsters as such are not enumerated in the statute of 43 Eliz c 4; but the Master of the Rolls says: “If the matter had depended on the statute alone, I should have thought the word ‘aged’ would have been sufficient to create a good charitable bequest for the relief of the poor on the estate – not because they were tenants, for the testatrix had settled the estate, and had only a rentcharge on it, but because they were poor.”
Powell v The Attorney-General 3 Mer 48 was a peculiar case. There was a bequest of residue to the widows of children of seamen belonging to the town of Liverpool. The bill which was filed against the Attorney-General and the testator’s next-of-kin for the directions of the Court as to the application of the residue charged that there was no existing charitable institution for the relief of widows and children of seamen belonging to the town of Liverpool, but that there were alms-houses in the town for widows of seamen, erected by virtue of different charitable bequests, and a hospital, under an Act of 20 Geo 2, c 38, for the relief of maimed and disabled seamen, and the widow and children of such as should be killed, &c, in the merchants’ service. The decree made at the hearing is not mentioned, further than that it was thereby referred to the Master to inquire whether there was any and what charitable institution for the benefit of the widows and children of seamen belonging to the town of Liverpool. The Master, by his report, stated several charities for poor seamen’s widows, and others for the poor of Liverpool generally, besides the hospital mentioned in the bill; and one under the will of Elizabeth Cain, whereby she directed the residue of her estate to be continued at interest or placed out on securities at the discretion of her executors, and after their death, of the rectors of Liverpool for the time being: the interest to be paid and distributed unto and among such poor sailors’ widows and orphans (inhabitants of Liverpool), as should in their Judgment be deserving objects of charity. The question on the hearing for further directions was, whether there was a good charitable bequest, and if so, whether it was general, or to go in aid of any of the specified charities. Sir W Grant held that it was a valid bequest, and that the words were sufficiently descriptive of the last of the charities mentioned in the Master’s report. Careful consideration of that case has satisfied me that the decision was that the gift was a valid gift to the institution for the support of poor sailors’ widows and orphans. It must have been rejected as a gift to individuals. But the gift to the widows and children of seamen could be supported as a charitable gift, and brought them within the term poor sailors’ widows and orphans, for whose benefit the institution was established.
Isaac v Defriez 17 Ves 373n was a gift to poor relations. In Gillam v Taylor LR 16 Eq 581, the gift was of the interest of a fund from time to time for such of the lineal descendants of Richard Wilson, my dearest mother’s brother, as they may severally need it. On the authority of Lily v Hey 1 Hare 580, and The Attorney-General v Price 17 Ves 371, it was held that the gift was a charitable one. That case is explained in The Attorney-General v The Duke of Northumberland 7 Ch Div 745, where it was held that to constitute a gift to the poorest of a stipulated class charitable, it must be construed as a gift to those who are actually poor and not the least wealthy of a wealthy class. There the gift was for the benefit of the poorest of his kindred, such as could not maintain their own charges.
In The Attorney-General v Gladstone 13 Sim 7 the gift was to TR, to be applied by him to the use of the Roman Catholic priests in and near London at his absolute discretion. TR died in the testator’s lifetime, and it was held that the legacy was not void for uncertainty, and did not lapse by TR’s death in the testator’s lifetime, but was good as a charitable legacy; and that it must be applied for the benefit of persons filling the character of Roman Catholic priests in and near London. No objection arises from the indefinite word ‘near’, because if the fund is given for a charitable purpose, the Court can solve the difficulty with regard to its application by directing a scheme to be approved by the Master.” The Vice-Chancellor then referred to the will, and says: “Upon the whole, I think that the fair construction of the bequest in question is that it was intended for the benefit of persons filling the character of Roman Catholic priests in and near London, both at the testator’s death and afterwards.”
The gift there was a gift for a public religious purpose, and the case is not applicable to the case before me. There is nothing to guide me in deciding that the gift is for children of poor persons, or persons in great need. The law imposes on parents the duty of supporting their children, and there is nothing to satisfy me that the tenantry of Matilda Browne are not able to fulfil that obligation.
For the reasons I have with considerable regret come to the conclusion that the gift is not charitable. I shall make a decree for the plaintiff.
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.)
In Re Michael Quinn
deceased
in the Matter of the Trustee Act, 1893
in the Matter of the Charities Procedure Act, 1812
The Most Reverend Vincent Hanly and Others v The County Council of the County of Galway and Others
High Court.
4 November 1953
[1954] 88 I.L.T.R 161
Budd J.
Budd J.:
In order to determine the questions arising in connection with the bequest for the improvement of Killian cemetery, I must first decide whether there is a good charitable bequest. I am entitled to approach that question with the knowledge of the general statistics of this country, that it is a predominantly Christian country; I also approach the problem on the basis that it is the custom of Irish people generally to regard the upkeep of a cemetery as being connected with religion. I can see no real distinction between a gift given for the improvement or repair of a church and one given for the improvement or repair of a churchyard. In one of the English cases, In Re Vaughan: Vaughan v. Thomas, 33 Ch. D. 187, North J. said at p. 192: “I do not see any difference between a gift to keep in repair what is called ‘God’s House’ and a gift to keep in repair the churchyard round it which is often called ‘God’s Acre’.” I think that view applies with at least equal, if not with greater force, to this country.
It was argued that Killian cemetery is an undenominational graveyard; that a gift for the upkeep of such a graveyard could not be said to be a gift for the advancement of religion. I cannot follow that argument at all. It seems to me, in view of the fact that the vast majority of Irish citizens are Christians, that a gift given for the upkeep of a cemetery such as this, which is open to persons of all denominations, is a gift for the advancement of religion.
It was, however, also argued that this gift is not charitable by reason of the fact that the upkeep of the graveyard is now the duty of Galway County Council. I cannot accede to that view. It seems to me that Mr. Fahy is correct in his submission that, even if the bequest is not for the advancement of religion, it falls, in any event, within the fourth category enumerated by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v. Pemsel [1891] A. C. 531, at p. 583, as a gift given for purposes beneficial to the community other than those falling under the preceding heads.
The decision in In Re Manser: Attorney-General v. Lucas [1905] 1 Ch. D. 68. was relied on. I think it is applicable here. No reasons have been shown why I should not apply the same reasoning as applied in that case. It is to be noted that the decision of Warrington J. did not depend on the provisions of any statute, but rested on general *165 grounds. Vaughan’s Case (supra) was also relied on. It is open to the comment that North J., did rely to some extent on the provisions of the English Church Building Act, 1803 (43 Geo. 3 c. 108), but his decision does not depend in toto on that statute.
It was further suggested that there was no real charitable intention in the legal sense because the testator’s primary object was the upkeep of his family plot rather than the improvement of the cemetery. I agree, however, with Mr. Kenny’s submission that there would be no breach of trust if the trustees did not apply any of the fund to the upkeep of the Quinn family tomb. I find support for this view in Manser’s Case (supra). The bequest there in question contained an addition to the effect that in particular the grave of the testator’s late wife should be cared for. Warrington J., regarded the words pertaining to the care of the grave of the testator’s late wife as nothing more than a special obligation ancillary to the repair of the burial grounds, and not as a separate trust at all. In the present case the portion of the bequest dealing with the Quinn family plot is merely ancillary to the main trust. I hold accordingly that the bequest for the annual improvement of Killian cemetery is a good charitable bequest.
The next question arising for determination is whether it would be practical to carry out the conditions and terms of the trust in the manner contemplated by the testator. In the main there would be real difficulty in so doing. This graveyard is full for all practical purposes. Interference with graves is frowned on generally and very much so in this country. It would be very difficult to do what the testator wished to have done without interfering with existing graves. I am not prepared to say it would be utterly and completely impossible, but it would certainly prove very nearly so. While some very small expenditure could be made along the lines indicated by the testator, it would clearly not be practical to expend the full annual income according to his directions, consequently it becomes necessary to determine whether the bulk should be applied cy près.
The question then arises whether the testator had only a particular object in view or whether he had a general intention towards charity. I have been referred to In Re The Templemoyle Agricultural School, Ex Parte Sheil I. R. 4 Eq. 295, where Chatterton V. C. considers the meaning of the expression ‘general charitable intention.’ He said (at p. 301 of the report) that the phrase “does not mean merely an intention to give charity generally, without reference to any specified object; but it means an intention the substance of which is charitable, whether generally and without any specified object, in which case the Crown will prescribe the mode of effectuating it, or for an object more or less accurately specified, but with a mode of benefitting that object superadded, which cannot be lawfully or at all carried into execution, in which case the Court will carry out the substantial intention.” In order to determine whether there is a general charitable intention I have to regard the will as a whole. I think that the fact that this testator had a general intention towards charity is amply borne out. The words of Black J., in In Re McGwire, Deceased: Walter Gyles v. Sir Joseph Glynn [1941] I. R. 33 at p. 47 are applicable to the will under consideration. It is, in the words of the learned Judge, “permeated with expressions of charitable intentions.” The cemetery bequest is followed by a clearly charitable gift for the poor orphans and the poor widows of the parish of Killian, and succeeded by other charitable bequests. I have referred to them during the arguments and need not enumerate them again in detail. This is a holograph will. The particular expressions used by the testator indicate the lines along which his mind as a layman was operating. I have no doubt that the whole will manifests a charitable intention. Of course if, as counsel for the next-of-kin submitted, the testator’s intention had been merely to benefit some particular charitable object, there would not be a general charitable intention.
Two cases were cited in support of this contention, In Re Wilson: Twentyman v. Simpson [1913] 1 Ch. 314, and In Re ffrench: De Stacpoole v. Keller [1941] I. R. 49. As far as In Re Wilson (supra) is concerned it is to be noted that Parker J., who decided the case, goes out of his way to point out that he had nothing to assist him in the rest of the will. In Re ffrench (supra) depends, to my mind, on its own particulars facts. The late President, in his judgment expressed the view that the preservation of Monivea was the testatrix’s primary intention to which the charitable gift was merely subsidiary. My view of the will before me being that the bequest for the upkeep of the graveyard is charitable and that this testator had a paramount intention towards charity, I will order that it be referred to the examiner to settle a scheme for the future administration of the trusts cy près.
Another matter should be mentioned. It may well be that this project of the testator was practical at the date of his death in 1919. Possibly Killian cemtery was not so *166 crowded then as now, and could have been improved and embellished. I have before me evidence of its present capacity. It would seem, in all probability that in 1919 there was quite a fair amount of space still available in the graveyard. If the testator’s intention could have been carried out then, the next-of-kin, having been disinherited would it appears, remain disinherited. It is, however, not necessary to come to a definite decision on that matter, and I do not purport to decide that point.
Having come to these conclusions it becomes unnecessary to express a view as to whether the residuary clause is particular or general, or whether any statute of limitations applies. I do not propose therefore to deal with either of those questions.
There remains to be considered the bequest to the very poor orphans and very poor widows of the Parish of Killian. That is clearly a good charitable bequest, and as I have already held that the will manifests a general charitable intention, the cy près doctrine is applicable. While, at present, there may not be any widows or orphans in the parish of Killian, needing assistance, without doubt, there will be such in the future, as there have been in the past. The fund bequeathed by the testator is unlikely ever to be used fully. There is always likely to be a surplus. It seems to me that the balance should be applied cy près and I will order that a scheme should be settled in respect of this bequest also. Reverting to the question of the fund bequeathed for the annual improvement of Killian cemetery, I take the view that a small portion of this bequest should likewise be expended in carrying out the testator’s wishes in so far as they are practicable with regard to the cemetery and the Quinn family grave. The balance should be applied cy près.
In re Howley; Naughton v. Hegarty.
Gavan Duffy J.
[1940] IR 109
The late Very Rev. Patrick Canon Howley P.P., 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, by 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 M.R. and the Court of Appeal in Ireland in MacLaughlin v. Campbell (7), and the opinion of the Judical Committee of the Privy Council in England in Dunne v. Byrne (8).
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 L.J., that a gift for the purposes of the Catholic Church is charitable.
Dunne v. Byrne (1) 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 (2) 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 be 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 (3),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 improvementso catholic is juristic charitythough 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. Moore (1)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 A. L. Smith, L.JJ.) in In re White (2), 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 M.R. in In re Bain, Public Trustee v. Ross (3).
In this country the principle was applied more than a century ago by Lord Manners in Powerscourt v. Powers-court (1), and it is recognised in recent times by O’Connor M.R., Barton J., and Ross J. in Arnott v. Arnott (2), In re Salter(3), and Rickerby v. Nicholson (4), 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 (5), applied in In re Jackson(6), 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 (5). 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 (7). In In re Davidson(8) where a power to give to objects non-charitable defeated a bequest to the Archbishop of Westminster, Cozens-Hardy M.R. (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 establishand, it may be, goes sufficiently far to establishthe 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 M.R. in In re Ashton(1), “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 honorariato 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 the 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 (2)per Palles C.B. A lawyer can ascertain the Catholic position readily from the evidence of the Bishop of Cork in Attorney-General v. Delaney (3),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 the 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 (4).And it is well settled that gift 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 hominesargument 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 A. B. 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 (1), 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 Cannot 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.
In the Matter of the Estate of Hogan, Deceased.
Halpin v Hannon
Supreme Court.
22 November 1947
[1948] 82 I.L.T.R 74
Maguire C.J., Murnaghan, Geoghegan, Black J.J.
Maguire, C.J., in the course of his judgment, after referring to the words of the bequest, said that it had not been contended that a gift to a bishop or his successor without any further words in the bequest was not a charitable gift. That such a bequest was a valid charitable gift has been settled by the decisions of Palles, C.B., Barry, J., and Dowse, B., in the case of Robb & Reid v. Dorrian, I. R. 11 Ch. 292, following the decision in Thornber v. Wilson, 3 Drew 245.
Counsel for the respondent had contended, however, that the words “for such purposes in the diocese as he wishes” used in their particular Will had the effect of widening the scope of the gift so as to include non-charitable objects, and that accordingly the gift should fail for uncertainty. The President of the High Court in accepting that contention had held that on the wording of the Will the Bishop might use the moneys for any purpose including non-charitable purposes in the Diocese of Limerick and the gift therefore failed, in accordance with the decision in Dunne v. Byrne, 1912 A. C. 407.
His Lordship here referred to the words of the Will in the case of Dunne v. Byrne (supra) and quoted from the decision of Lord MacNaghten where he said: “The learned counsel for the appellants have been insisting that in as much as according to the authorities a gift to a Roman Catholic Archbishop and his successor without more would be a good charitable gift, there is to be found in this Will an overriding charitable intention sufficient to supply the lack of certainty—if lack of certainty there be—in the declared object of the bequest. Their Lordships have no hesitation in rejecting this argument …. It is difficult to see on what principle a trust expressed in plain language, whether the words used be sufficient or insufficient to satisfy the requirements of law, can be modified, or limited in its scope by reference to the position or character of the trustee.” Lord MacNaghten had expressed the view that by giving the Archbishop an uncontrolled discretion as to the things which he might consider “most conducive to the good of religion in his diocese,” the testator had left it open to apply the gift to things which “would not be charitable in the sense which the Court attaches to the word, and indeed without being in itself in any sense religious.” The case of In Re Garrard, 1907, 1 Ch. 382, his Lordship pointed out, was not referred to in Dunne’s case. In that case Joyce, J. held on the authority of Thornber v. Wilson (supra) that a gift to the vicar and churchwardens of K. “to be applied by them in such manner as they in their sole discretion think fit” was a good charitable bequest and the judge had been of opinion “that the words in the latter part of the gift merely direct that the particular mode of application within the charitable purposes of the legacy is to be settled by those individuals.” Commenting upon these decisions his Lordship stated that the distinctions though fine were discernible and logical, and were made clearer when the more recent cases of In re Jackson, 1930 2 Ch. 389, Farley v. The Westminster Bank, 1938, Ch. 503 and 1931, A.C. 430, and In re Norman, 1947, 1 A. E. R. 400 were considered.
From these decisions it was clear that it was necessary to distinguish the case where a gift to the holder of a religious office was followed by words which made it clear that the gift might be applied to non-charitable purposes and that such was the testator’s intention, and cases where later words do not clearly indicate an intention to widen a field of selection so as to include non-charitable objects where earlier words might be regarded as limiting the discretion giving the beneficiary “merely a power of selection within the charitable purposes of the legacy,” as it *75 has been put in In re Garrard. In his lordship’s opinion Lord MacNaghten’s judgment in Dunne’s case did not mean that the later words in a gift of the nature of the gift in the Will before the Court were to be divorced in every case from their context and relation to earlier words which by reason of the religious office of the legatee would give rise to a good charitable gift, and that judgment in no way prevented the Court from viewing the trust by having regard to the character of the trustees where the words used did not clearly include non-charitable objects. In Farley’s case (supra) Farwell, J. had said: “when one looks at the gifts, this at any rate is plain: that the Vicar and the Churchwardens in each case are not given their share of residue beneficially. They take as trustees and not otherwise. That being so one looks to see whether the trust or the purposes for which they are given the money is defined in the Will. It might be that if there is no definition of the purpose for which the money is to be used it might be possible as in the case of In re Garrard to imply the trust from the office of the trustees,” and Lord Romer, at p. 437 of the report of the case in the House of Lords (1939 A. C. 430) said: “It is only, in my judgment, in a case where the trust itself is not specified that the office of the trustee may be considered in order if possible to ascertain the purposes of the trust.” In the case before the Court the words: “for such purposes in the diocese as he wishes” would not, in his lordship’s view, clearly include non-charitable objects, and the character of the trustee could be considered to assist in ascertaining the purpose of the trust. The ordinary and very wide meaning of the words used should, therefore, be cut down so as to confine the gift to episcopal purposes within the diocese, which would constitute a valid object of a charitable gift.
Murnaghan, J., having referred to the facts of the case continued, pointing out that whereas a man could make a Will disposing of his property, the law would not permit him to pass this task to another, and that if a testator failed to express his intention with clarity the Will would be void for uncertainty. To that rule, however, the law permitted an exception in the case of gifts for charitable purposes—in the legal sense—in which case a testator could make a gift for purposes to be selected by a person named in the Will.
Having read the Will of the deceased his Lordship went on to say that the advancment of religion was a recognised and valid charitable object in the full legal meaning of that word. Where a testator gave a gift to a person holding an ecclesiastical office and a Court was satisfied that such a gift was not personal to that office, the Court would conclude that the testator intended the gift for the purposes of this particular office and that it was a charitable gift. The gift in the Will before the Court was expressed to be “to the Most Reverend Doctor Keane or his successor,” and in view of the fact that the testator did not know who such “successor” might be, it was clear that the gift was to the holder of an ecclesiastical office, and for the purposes of that office and not a personal gift to the holder of the office. There were cases where a testator having given a gift by his Will to the holder of an office followed the gift with words which clearly showed that the purposes of the gift included non-charitable purposes. His Lordship referred to Dunne v. Byrne (supra) and to Farley v. the Westminister Bank (supra) in which, he said, the Court had come to an interpretation of the Will based on the specific words of the testator and had followed the principle stated by Sir William Grant in James v. Allen, 3 Ves. 17 that if the gift might, consistently with the words of the Will, be applied to other than strictly charitable purposes the trust is too indefinite for the Court to execute. There were many cases in which a gift to an office holder followed by general words “to be applied in such manner as he thinks fit,” or similar expressions had been held to create a valid gift, the Court interpreting the general words as merely giving a power of selection amongst objects connected with the office and charitable in their nature. A gift to a private individual for such purposes as he thought fit was understood to be general in its purpose and not to be limited in this way, but a gift to an office holder for the purposes of his office might, in accordance with the ordinary use of language be interpreted as a power of selection amongst the purposes of that office and not to mean or include purposes wider than those of the office.
His Lordship referred to the decision of Joyce, J., in In re Garrard, Gordon v. Craigie 1907, 1 Ch. 382, and commenting on the decision in In re Norman, Angel v. Vine, 1947, 1 A. E. R. 400, said that in that case Vaisey, J., had felt himself entitled to say that the generality of the language used was not to be interpreted in a strictly literal sense, and that the objects in the testator’s mind were charitable. His Lordship stated that he agreed with that decision, and considered that it would be deplorable if a rigid insistence on a purely verbal interpretation were to defeat what every plain reader of the Will would understand to be the intention of the testator. A speaker when using general *76 language related such language to the matter in his mind at the time. Could it be imagined when a person sent a cheque to the treasurer of a charitable society stating that it was to be used for such purposes as the treasurer thought fit, that such words would be interpreted as meaning that the treasurer could use the moneys for purposes unconnected with the society? His lordship held that the words of the Will following the gift to the Bishop contained a power of selection amongst charitable objects and nothing more.
Geoghegan, J., stated that the gift was a bequest to Bishop Keane or his successor by virtue of his episcopal office. Had the testator the clause giving the gift with the word “successor” he would have given a charitable legacy. It had been argued that the additional words contained after the word “successor” in this Will ought to be read in their widest sense as embracing noncharitable objects into the gift. In his Lordship’s opinion those words having regard to their setting should be construed as a direction as to the mode of application of the gift to the charitable purposes of the legacy. His Lordship referred to In re Gerrard 1907 Ch. 382, and In re Norman, 1947, 1 A. E. R. 400.
Black, J., in the course of his judgment, after referring to the decision of the President of the High Court, said that the Courts when deciding as to whether a testator’s objects were uncertain or not in that they might or might not include objects not charitable look to the testator’s own words referring to those objects. The Courts would not look primarily at other words which referred not to the objects, but to individuals who were to carry them out. If the scope of the objects of the testator was clearly indicated other words and matters including the character of the particular trustees appointed would be irrelevant. The character of trustees might indicate that if given a free hand they would, in all probability use the trust moneys for a certain purpose only, and a testator who appointed trustees of such a character, and who did not expressly state his objects, might believe that such trustees would apply the fund to such a particular purpose and no other. Yet he might also, having unlimited confidence in the judgment of the trustees intend that they should be free to use it for any meritorious purpose which might happen to be more deserving than a purpose for which the character of their office might normally predispose them to apply the gift. In such a case an interpretation of the Will in question which would have the effect of tying the trustees to objects of a particular character would frustrate the intention of the testator, and the Courts would not take such a risk, but would, if possible, give full effect to the intentions of the testator as expressed in his plain language regardless of the character of the trustees nominated by him. This doctrine would only apply where a testator had expressly and clearly indicated the scope of his objects. Where the testator had not done this, as where he left property to named trustees without expressly indicating the scope of the purposes for which they were to employ it, the character of the trustees might be such as to make it probable that if given a free hand they would employ that property for purposes strictly charitable in the legal sense of the word. In cases of this latter type Courts had considered the character of the trustees and even the surrounding circumstances, and had implied, from such considerations, that the testator intended the gift to be solely for purposes charitable in law, thereby taking the risk, already mentioned by his Lordship, and frustrating his wishes pro tanto, rather than resorting to the other alternative of treating the entire gift as void for uncertainty and frustrating his wishes in toto, and in so doing had followed the principle referred to by Lord Chelmsford in Bruce v. Presbytery of Deer, 1. H. L. Sc. 96. The decisions in In re White, 1893, 2 Ch. 41, Baker v. Sutton 1 Keen, 224, Cocks v. Manners, 12 Eq. 574, and In re Delany, 1902, 2 Ch. 642, were examples of the application of that principle, but, in his Lordship’s opinion the present case did not fit into the same category by reason of the fact that the testator in the case before the Court had not only designated his trustees, but had in addition referred to his objects by the use of the words, “for such purposes in the diocese as he wishes.”
His Lordship then dealt with a second category of cases, in which were found cases where the testator having designated his trustees went on to indicate the purposes of the trust but did so in such ambiguous language that it was impossible from a consideration of the language of the Will to be certain whether the purposes were sufficiently wide to include some object not charitable in the legal sense. In cases of this type, his Lordship said, the Courts had again looked at the character of the trustees and even at the surrounding circumstances as a means of claring up the ambiguity; In re Rees, 1920; 2 Ch. 59, in which case Sargent, J., had expressly referred to In re Kenny, 97 L. T. 130, was a case of this type. Eve, J. in In re Friends’ Free School, 1909 2 Ch. 675, had *77 found this principle inapplicable on the facts of the case, but had recognised the principle when he had said: “no doubt there are cases where the appointment of a particular trustee had been treated by the Court as an element to be taken into consideration in determining whether a gift tainted with some possible ambiguity is to be treated as void for uncertainty, such, for example, as Nightingale v. Goulbourn, 2 Ph. 594, In re Kenny, 97 L. T. 136, and in re Garrard, 1907, 1 Ch. 382.” The soundness of the decision in In re Garrard had been doubted by more than one judge, and Eve, J., had placed it in the category of cases where a testator, whilst purporting to designate his objects had done so ambiguously. In his Lordship’s opinion In re Garrard could only be upheld, if at all, if treated as coming within that class of case.
Continuing, his Lordship said that there was a third category of cases, in which a testator after naming his trustees, went on to indicate the purposes of the gift, and did so in unambiguous terms. In cases falling into that category the highest authorities were unanimous in holding that a Court could not look to the character of the trustees for the purpose of placing a limit on the purposes indicated by the testator’s words. The case of In re Freeman, 1908, 1 Ch. 720, was a case of this type, and applying that decision to the words of the Will before the Court, if those words were sufficiently clear to indicate purposes wide enough to include purposes which would be non-charitable in law, the Court could not look to the character of the trustee for the purpose of narrowing those purposes to purposes strictly charitable. His Lordship referred to the decisions in In re Davidson, 1909, 1 Ch. 567; In re Dunne v. Byrne, 12 A. C. 407, and In re Ashton; Farley v. Westminster Bank, 1938, 1 Ch. 482; 1939, A. C. 430. Commenting on the judgment in In re Ashton, his Lordship pointed out that in that case Lord Atkin had adopted the words of the Master of the Rolls in the Court of Appeal when he said: The whole question in this case turns on whether or not the words ‘for parish work’ can in some way be limited, either by their own inherent meaning or by reference to the character or quality of the trustees. I have come to the conclusion, and I do so with regret, that that limitation cannot be imposed upon the words,” and that Lord Romer had expressed complete agreement with the words of Farwell, J., when he said in the Court of Appeal: “It is only in my judgment, in a case where the trust itself is not specified that the office of the trustee may be considered, in order if possible to ascertain the purpose of the trust. In the present case the trust itself is specified quite clearly.” His Lordship was not prepared to find that the judgment of the House of Lords, the Privy Council, and Court of Appeal, in those cases, were wrong, and it followed that if the words of the Will before the Court were unambiguous, and in their ordinary sense clearly indicated the scope of the purposes to which the bequest could be applied, and showed that the scope of such purposes was sufficiently wide to include noncharitable purposes, the Court could not look to the character of the trustee or use that character to cut down the designated purposes and limit them to purposes strictly charitable in law. The question, therefore, was: “are these words: ‘for such purposes as he wishes’ in themselves ambiguous, or, do they clearly express the trust, or, in other words, the scope of its objects?”
The testator had no doubt set a territorial limit to the beneficial purposes of his bequest, but as had been said by Lord Shaw in Houston v. Burns [1918] A. C. 337: “The local limits do not add any definiteness to the class of purposes or objects which it was in the mind of the testator to benefit or promote.” As his Lordship understood the position, it was suggested that if the testator had set some limits to the scope of the character of his purposes, no matter how vast those limits, the Court could not allow the character of the trustees to limit the scope of those purposes as indicated by the testator’s own words. But, if, as in the case before the Court, the testator had set no limit to that scope, or left the trustee free to use the fund for any purpose he wished, the Court could use the character of the trustee to cut down the unlimited scope of the gift indicated by the testator’s words. His Lordship stated that he could not follow that contention, and could not see on what common sense basis it could be argued that the trustee’s character could not be used for the purpose of cutting down limited powers, but could be used to cut down unlimited powers. His Lordship said that he would hold that where a testator in plain language had indicated the scope of his intended purposes, that indication could not be limited by reference to the trustee’s character, and it would not matter in this respect, whether the scope so indicated had been limited or unlimited, provided it had been expressed in plain language. Unlimited scope could be expressed with clarity, and in his Lordship’s opinion, a gift of a fund to a person, together with an unlimited power of applying it could not be expressed in plainer language than that used by the testator when he said: “for such purposes as he wishes.” His Lordship stated that he could not conceive any rational principle whereby a trustee given an unlimited power going beyond the ambit of charity in its legal sense should be *78 favoured as against a trustee with limited power, the scope whereof was also beyond the ambit of charity, by being allowed to invoke his character for the purpose of showing that the testator had not meant what he had plainly expressed.
His Lordship, continuing, referred to the decision in In re Garrard [1907] 1 Ch. 382 and in In re Norman [1947] 1 A. E. R. 400, and stated that despite those decisions he found it impossible to find any ambiguity in the phrase such as “for such purposes as he thinks fit,” or for such “purposes as he wishes.” Such expressions clearly informed the trustee of his powers, left no room for doubt, and in those circumstances the character of the trustee could not be invoked for the purpose of limiting the effect of the testator’s words. The question of the probability or improbability of the actual words correctly expressing the actual intention was irrelevant, a matter which had been dealt with by Lord Langdale in Wilson v. Eden (11 Beaven 295) when he said: “It is a common rule of construction that if the words of a gift are themselves plain, distinct, and capable of a legal effect, effect must be given to them notwithstanding any improbability that may arise from looking at other parts of the Will.” It was not for the Court to consider probabilities, if it were there was no improbability in supposing that the testator might have intended to give his Bishop power to apply that gift to a range of objects wider than those purely charitable in law. The decisions which he had already quoted had not, his Lordship said, made new law, they had merely applied the unquestioned rule of construction as stated by Lord Alvanley, C.J., in Ex parte Ilchester 7 Ves. 348, at p. 368, where he said: “Upon the rules and principles that I have ever thought it my duty to observe …. I have ever thought it imposed upon me not to make any intendment contrary to the plain sense of the words used, unless from other parts of the Will I could see plainly that the testator could not have intended them to have that extensive operation.” There was no doubt about the extensive operation which the vital words in the case before the Court could and, in his Lordship’s opinion, did carry. In his view it was obvious that they did not exclude any purpose that would not be charitable in law. If he had had any doubt as to the scope of the testator’s words his Lordship said he would have given the benefit thereof to the charity; where a well established rule of construction and its application had been brought into issue in the highest court in the land to overlook or override it, as might have been done in a Court of First instance in England in very exceptional circumstances would have the effect of putting an end to that rule within the jurisdiction of the Court. The President of the High Court had found himself coerced to decide as he did by reason of the overwhelming weight of the authorities and the logic of their application to the case. In his Lordship’s view he could not have decided otherwise, and his decision had been correct.
In the Matter of the Trusts of the last Will of the Very Reverend Patrick C. Ryan, deceased, dated July 27, 1891, and in the Matter of the Trustee Act, 1893
James Ryan v Norah Ryan
High Court of Justice.
2 July 1925
[1926] 60 I.L.T.R 57
Johnston J.
An affidavit made by the Very Reverend Jeremiah Kinnane in the suit D’Alton v. Gibbons, [1917] 1 I. R. 448, in the terms hereunder, was, after due proof on affidavit, admitted in evidence on behalf of the Attorney-General. The said affidavit was in the following terms:—
1. I am an ordained priest of the Roman Catholic Church (in this affidavit referred to as “the Church”) and a Doctor of Canon Law. I occupy at present the position of Professor *57 of Canon Law in St. Patrick’s College, Maynooth. I am familiar with the Doctrines and Laws of the Church, and in particular with the teachings and laws of the Church, in respect of the dead and of the benefits which may be conferred on them by acts or works of the living.
2. It is a Dogma of the Church that the souls of some persons, while they have not died in such a state of sin as to merit eternal punishment, have yet such a degree of guilt or undischarged indebtedness to Divine Justice in respect of the punishment due to sin as to debar them from immediate admission to the Divine Presence, and are detained in a temporary state or place of punishment called by the Church “Purgatory,” until such guilt or indebtedness has been purged or satisfied.
3. The Dogma stated in the last paragraph is enunciated by the Council of Trent in the following words:—“Si quis, post acceptam justificationis gratiam, cuilibet peccatori pœnitenti ita culpam remitti, et reatum æternæ pœnæ deleri, dixerit, ut nullus remaneat reatus pœnæ temporalis exsolvendæ, vel in hoc sæculo, vel in futuro in purgatorio, antequam ad regna cælorum aditus pateri possit; anathema sit. (Sess. VI. Can. 30)” The following translation of the passage just cited actually conveys its meaning:—“Anyone who shall have said that, once the grace of justification (justification, that is, by the merits of Jesus Christ) has been received, sin is so remitted to the penitent sinner, and liability to eternal punishment is so wiped out, that there remains no liability to undergo temporary punishment either now, or hereafter, in purgatory, before admission can be gained to the kingdom of Heaven: Let him be anathema.”
4. The Church further teaches that the faithful can help the souls detained in purgatory and alleviate the punishment temporarily debarring them from admission to the kingdom of Heaven.
5. The Dogma stated in the last preceding paragraph, and the mode in which such help can be given, are re-affirmed in the opening words of the Decree of the Council of Trent entitled “De Purgatorio,” of which Decree the following is the text:—“Cum Catholica Ecclesia, Spiritu Sancto edocta, ex sacris litteris et antiqua patrum traditione, in sacris Conciliis, et novissime in hac œcumenica Synodo docuerit, purgatorium esse; animasque ibi detentas, fidelium suffragiis, potissimum vero acceptabili altaris sacrificio, juvari, precipit sancta Synodus episcopis, ut sanam purgatorii doctrinam, a sanctis patribus et sacris Conciliis traditam, a Christi fidelibus credi, teneri, doceri, et ubique prædicari, diligenter studeant. Apud rudem vero plebem difficiliores, ac subtiliores questiones, quæque ad ædificationem non faciunt, et ex quibus plerumque nulla fit pietatis accessio a popularibus concionibus secludantur. Incerta item, vel quæ specie falsi laborant, evulgari, ac tractari non permittant. Ea vero, quæ ad curiositatem quamdam, aut superstitionem spectant, vel turpe lucrum sapiunt, tamquam scandala, et fidelium offendicula prohibeant. Curent autem episcopi, ut fidelium vivorum suffragia missarum scilicet sacrificia, orationes eleemosynæ, aliaque pietatis opera, quæ a fidelibus pro aliis fidelibus defunctis fieri consueverunt, secundum Ecclesiæ instituta, pie et devote fiant; et, quæ pro illis ex testatorum fundationibus, vel alia ratione debentur, non perfunctorie sed a sacerdotibus, et Ecclesiæ ministris, et aliis, qui hoc præstare tenentur, diligenter et accurate persolvantur.”
6. The following translation of the Latin text cited in the last preceding paragraph actually conveys its meaning:—“Whereas, the Catholic Church, instructed by the Holy Ghost, has, out of the sacred writings and old tradition of the fathers, taught in the sacred Councils and most recently in this œcumenical Synod, that there is a purgatory; and that the souls detained there are helped by the suffrages of the faithful, but most of all by the acceptable sacrifice of the altar; the holy Synod enjoins upon bishops diligently to see to it that the sound doctrine as to purgatory handed down by the saintly fathers and sacred Councils is believed by the faithful of Christ, and held, taught, and preached overywhere. In the presence of ignorant people, however, let the more difficult and subtle questions, and those which are not of use for edification, and from which no increase of piety generally results, be excluded from popular discourses. Likewise, let them not permit matters which are doubtful or have the appearance of falsehood to be published and discussed. But let them prohibit those matters which tend towards a certain curiosity or superstition, or savour of base gain, as scandals and stumbling-blocks of the faithful, but let the bishops take care that the suffrages of the faithful living, namely, the sacrifice of Masses, prayers, alms, or works of piety, which are usually done by the faithful on behalf of others of the faithful who are dead, be carried out piously and devoutly, according to the ordinances of the Church; and let what works are due on behalf of the last-mentioned ( i.e., faithful dead) on account of the provisions made by testators or for any other reason, be discharged not *58 negligently but carefully and exactly by the priests and ministers of the Church and others who are obliged to attend to this matter”
7. I beg to refer to a printed book with the title: “Canones et Decreta Sacrosancti Œcumenici Concilii Tridentini,” now produced, and shown to me, and upon the title page and pages numbered respectively 34 and 204 of which I have written my name at the time of making this affidavit. The said printed book contains the authoritative text of the Canons and Decrees of the Council of Trent. The text of the Canon cited in paragraph 3 of this affidavit is set forth at the said page numbered 34 and the text of the Decree cited in paragraph 5 of this affidavit is set forth at the said page numbered 204 and concluded on the page thereof numbered 205.
8. Inasmuch as but three states or conditions of the souls of the faithful who have died are contemplated by the teaching of the Church, of which two are definite, final and for eternity, the third only, that mentioned in paragraph 2 of this affidavit, which is a temporary state of punishment or purgation, and is capable of being alleviated by acts of the faithful on earth, is that contemplated by Catholics who make testamentary provision for their spiritual benefit or advantage after death, few persons daring to anticipate that death will find them so prepared that they will not pass through a period or purgatory.
9. The means of attaining the spiritual benefit or advantage of deceased persons are declared by the Decree cited above to be Fidelium suffragia, and these suffragia are enumerated in the last clause of the Decree as:—(1) Masses ( Missarum Sacrificia ), (2) Prayers ( Orationes ), (3) Alms ( Eleemosynœ, and (4) other works of Pietas ( alia pietatis opera ), the word pietas pointing to works subserving the good of man and the glory of God.
10. Of the four kinds of suffragia enumerated in the last clause of the said Decree, the sacrifice of the Mass is mentioned in the first clause as the one of pre-eminent efficacy, and, therefore, generally speaking, the best method of providing for the spiritual advantage of a deceased person would be to procure the celebration of Masses for his soul, for example, by endowing churches and altars for the celebration of Masses for his soul.
11. Catholic theologians, however, recognise that the general rule just stated is not without exception in special circumstances. Thus, La Croix, a recognised authority on Catholic theology, writes:—“Missam esse præcipuum opus satisfactorium pro defunctis … . . Notat autem Rayn cum Soto posse per accidens fieri, ut eleemosyna in certis casibus ratione charitatis adjunctæ vel magnæ indigentiæ pauperis sit gratior Deo adeoque utilior defunctis quam multæ missæ.” This passage will be correctly rendered as follows:—“That the Mass is the principal work of atonement on behalf of the dead… . . Rayn, however, observes with Soto that it may chance to happen that in particular cases alms giving may on account of the accompanying charity or of the great need of the poor person be more pleasing to God and therefore more useful to the dead than many Masses.”
12. Shortly stated, the teaching of the Church on this subject is that the living may assist the dead by Masses, prayers, alms, and other works of piety (piety pointing to works subserving the good of man and the glory of God—for example, the building of a church). It is also the teaching of the Church that the principal work of satisfaction for the dead is the Mass. Nevertheless, according to some theologians, other works may in particular cases be more pleasing to God and, therefore, more useful to the dead than Masses.
Authorities cited:
In re Dean, 41 Ch. Div. 552;
Wilson v. Lord Bury, 5 K. B. D. 518;
Attorney-General v. Hall, [1897] 2 I. R. 426;
In re Smith, [1904] 1 Ch. Div. 139;
O’Hanlon v. Logue, [1906] 1 I. R. 247;
D’Alton v. Gibbons, [1917] 1 I. R. 448.
Johnston, J.
This is a summons for the construction of the will of the Reverend Patrick C. Ryan, Catholic Curate. (Recites will.) I cannot distinguish the terms of this bequest from those of the bequest in the case of D’Alton v. Gibbons, [1917] 1 I. R. 448, where there was a residuary gift to a Catholic clergyman who was to dispose of it “to my best spiritual advantage, as conscience and sense of duty may direct.” Barton, J., decided that this was not a charitable trust in the legal sense of that term, but that it was a valid private trust. He added: “The Court is not asked to compel the enforcement of this trust. The executors are willing to carry it out, and I see no sufficient ground for refusing to allow them to effectuate, as they propose to do, the expressed intentions of the testator.” In other words, he decided that the bequest of the residue was a good discretionary trust in the hands of the executors. There is, however, a complication in this case which did not arise in D’Alton v. Gibbons. The Reverend Father Humphreys, to whom an “unfettered” discretion was given, pre-deceased *59 the testator, and the next-of-kin contend that if the will did create a good private trust at all, it cannot now be carried out, seeing that the person in whose discretion it rested is dead. The will speaks from the death of the testator—viz., 24th February, 1924—on which date the proposed trustee was dead. I must treat the case, therefore, as one where a valid private trust was created by the will, but where no trustee was appointed. I do not think that the case of Re Smith, [1904] 1 Ch. 139, to which Mr. Costello referred me, has any applicability to the facts in the present case. If the Reverend Father Humphreys had survived the testator, and had died before he had carried out the terms of the trust, the question then would have arisen whether the power was annexed to the office and estate of the trustee for the time being, or was of a kind that indicated a personal confidence in an individual, and that question would have had to be determined. But such a question does not arise. I will refer to Chambers the question of the appointment of a suitable trustee, with a direction that regard shall be had to the office that the testator held in his lifetime and the nature of the power that will be reposed in the trustee when appointed. He will then have all the powers, authorities and discretions, and he may in all respects act as if he had been originally appointed a trustee by the will (Trustee Act, 1893, s. 37). I do not think it will be out of place for me to point out that the trustee will take the property under the will on what has been called a discretionary trust, which might be more accurately called (as Jarman calls it) “a power in the nature of a trust.” After he has honestly exercised his unfettered discretion in carrying out the testator’s wishes, if any part of the property remains undisposed of, it will go to the parties beneficially entitled as on an intestacy. Accordingly, the answers to the questions submitted in the summons are: (1) It does not; (2) Yes; (3) No. (4) It is not necessary to answer this question, which is entirely a matter for the trustee appointed on reference to Chambers. I declare all parties entitled to their costs out of the estate.
Munster and Leinster Bank v. Attorney-General and Others.
[1940] IR 19
Black J. 19
The first question I am asked to answer is whether a deposit receipt for £80 forms part of the assets of the deceased, Nicholas Doyle, or whether the £80 enures as a voluntary gift to his widow, Agnes Doyle, being portion of the sum of a £100 covered by a deposit receipt which he handed to her on his death-bed. I shall not recapitulate the facts, which are on affidavit.
During a previous illness, deceased had given his wife a deposit receipt for £10, and when he got well he had complained to the Bank that it should not have paid her the whole £10 at once. From this I infer that the deceased was the kind of man who would not hand out to his wife at once more money than he thought was necessary to defray household expenses for a very short time, unless he was thinking of making a more serious provision for her than a mere allowance to pay outgoings from day to day, and that when, on what proved to be his death-bed, he handed her a deposit receipt for £100, he had in mind to make provision for a very protracted period. This may have been a period during which he contemplated his illness might last, and during which he might not be again in a fit state to be troubled about money matters, or it may have been a period following his anticipated death, during which his widow’s necessities, pending the winding up of his affairs, would not in his view be adequately provided for by a less sum than £100.
His ailment was heart trouble. He had been confined to bed for some ten days. That indicates that it was severe, and in my opinion that class of affection would be more likely to make the deceased contemplate death than to make him expect a protracted period of sustained inability to sign a deposit receipt or to send a message to his bank. He must have felt much worse than on the previous occasion; for he not only gave his wife a sum ten times as large, but he asked her if that would be enough. If the requirement he anticipated had merely been provision for the daily expenses during his illness, I think, having regard to the previous £10 incident, he would have assumed that £100 would be a great deal more than enough for the time being, and that if he did happen to remain ill so long that £100 was nearly spent, it would be time enough then to ask questions about the need for making further provision. On the whole, I am of opinion that he intended a donatio mortis causa.
Now, when a dying man hands over deposit receipts under circumstances establishing a donatio mortis causa,the gift is not the scraps of paper, but the money they represent. The scraps of paper are merely indicia of title. As Buckley J. said in In re Beaumont (1): “The delivery of the deposit receipt is the delivery of some effective means of obtaining the money itself.” Here, the deposit receipt was for £100. £20 of that was reduced into possession by the wife. It was spent on household expenses. That £20 was, I think, a gift inter vivos, but perfected without the need of asking Equity to complete it, which, the transaction being a voluntary one, Equity would not do, if it had to be invoked. Hence, if there is a validdonatio mortis causa, it can only be in respect of the £80, portion of the £100, which the Bank retained.
My opinion is that, in handing over the deposit receipt for the £100, the deceased had a twofold intention, namely, that part of the £100 should be a present gift to defray household expenses and that the rest should be a donatio mortis causa. If there had been no question of running expenses, and if he had merely given his wife a deposit receipt for £80, saying that it was to be hers if he died, but that if he recovered it was to be given back to him, that would have been a valid donatio mortis causa. Could it make any difference if he gave his wife a deposit receipt for £100, of which £80 was for her if he died, but to revert to him if he got better, while £20 was for his wife outright and unconditionally? I cannot see why it should make any difference that the deposit receipt covers a larger sum than the sum intended to be given as a donatio mortis causa.
Further, I think it cannot make any difference that the two sums in question were not ascertained sums at the time, if the precise intended means of ascertaining them can be gathered from the evidence from which the deceased’s intentions are to be inferred. If the deceased’s intentions were what I take them to have been, the means of ascertaining how much of the £100 was to be a gift outright inter vivos was to find out by the events that would happen how much would be required for household expenses, and this would depend on how long the deceased would live. In the same way the amount of the donatio mortis causa would be ascertained. If the deceased lived a long time it might be wiped out altogether. My view on this point is rather strengthened by a decision of Mr. Justice Kenny in Murphy v. Quirke (1) where the donatiowas not an ascertained sum, but a balance remaining in the hands of the trustee after the payment of certain charges of uncertain amount.
It is, of course, well settled that a deposit receipt may be the subject of a donatio mortis causa: Cassidy v. Belfast Banking Co. (2). It is equally well settled, notably by In re Farman (3), that I can act on the uncorroborated evidence of the donee, if I consider it trustworthy. In this case, I consider the widow’s affidavit conspicuously and pathetically trustworthy. Were it not so, I should not regard the affidavit of Edward Doyle as of much, or perhaps any, corroborative value. I, therefore, answer the first question “No” and the second question “Yes.”
I shall dispose of the fourth question before I deal with the third. It is whether a bequest in the first codicil in the deceased’s will of his house Brookville, Skerries, to the Skerries branch of the Catholic Young Men’s Society is a valid bequest to the individual members of the said branch living at the testator’s death. Such a question is often difficult. In the comparatively recent case of In re Byrne (4) the Supreme Court was divided upon a like question arising out of a will perhaps not more difficult than that which I have to construe. My impression of the elaborate argument before me was that counsel for the Catholic Young Men’s Society and for the Attorney-General alike rather concentrated on their contention that the bequest was a charitable one in the legal sense, and therefore sustainable notwithstanding the rule against perpetuities. They did not appear to me to have quite the same strenuousness in regard to the view that it might be construed as a gift to the members living at the testator’s death. immediate and outright. The mere fact that the Society has rules which showas Byrne J. said in In re Clarke (5)”an intention that it should be permanent in the fullest sense of the word,” does not make a gift to that Society one that tends to a perpetuity. Neither does the fact that the subject of the gift is a house have that effect necessarily; although as Lord Justice FitzGibbon said in In re Wilkinson’s Estate (1) the fact that the subject was land “created a difficulty” in Delaney’s Case (2).Nevertheless, the difficulty was surmounted, and a gift for the Sisters of Mercy at Bantry was interpreted to be one for the Sisters who survived the testator individually. In the present case, not only is the subject of the bequest a house held on lease for 999 years and the object of the gift a Society plainly intended to be permanent, but the testator expressly “declares that the said house shall be used for the purposes of the said Society and that it is my express wish that the said house shall not be sold or otherwise disposed of.” Considering the nature of the Society and the words of the bequest in their entirety, I am of opinion that the testator intended this gift for the Skerries branch of the Catholic Young Men’s Society in its quasi-corporate capacity and to enure for the benefit of the continuing body indefinitely. I must, therefore, answer the fourth question in the negative.
It follows that unless the bequest can be supported as charitable in the legal sense, it must fail by reason of the rule against perpetuities.
I have, therefore, next to consider whether the bequest of Brookville to the Catholic Young Men’s Society can take effect as a valid charitable gift which the rule against perpetuities does not affect. I have divided this inquiry into a series of questions, on the answers to which my conclusion must depend.
1. Has the Catholic Young Men’s Society any charitable object, the word “charitable” here and throughout my remarks meaning charitable in the technical legal sense?
2. If the Society has a charitable object, has it also other objects, so that its objects may be said to be mixed?
3. If it has mixed objects, is it possible to ignore the non-charitable objects, and to treat the bequest as valid on the strength of the charitable object alone?
The answer to this last query will depend on the answers to two sub-queries, viz.:
(a) Are the two classes of objects so linked together that it would be impossible for the Catholic Young Men’s Society to devote the house in question to advancing any of the non-charitable objects without also advancing the charitable object? or
(b) Is the charitable object predominant, and are the other objects purely secondary and subsidiary and really only means towards the predominant end?
This analytical method of dealing with the problem involves a close examination of quite a volume of case law.
The conventional opening in cases like this is to cite the four classical categories of charities set forth in Pemsel’s Case (1) by Lord Macnaghten, but really taken from Sir Samuel Romilly’s argument in Morice v. Bishop of Durham (2). These are:(1) Relief of the poor. (2) Advancement of education. (3) Advancement of religion. (4) Other purposes beneficial to the community.
As the testator has not defined the nature of the objects of his bequest, but merely bequeathed the house in question to the Skerries Branch of the Catholic Young Men’s Society to be used for the purposes of the Society, I have to rely on the Constitution and Rules of the Society to see what these purposes are. The Constitution and Rules are contained in a booklet almost every line of which has been parsed by counsel. In the introductory part, it is declared that “the religious character and spiritual purpose of the Society are paramount.” If there was nothing but that simple pronouncement before me, an interesting argument might have been developed, based on In re White (3), a case which has been doubted more than once, but never overruled. That case decided that a gift to a religious institution, without naming it, is prima facie a gift for religious purposes, and must be treated as a gift for charitable purposes in law, unless the contrary is shown. So, here, it might have been argued that a body which presents itself in the character indicated by that pronouncement is a religious society and that a gift to it must be charitable unless shown to be otherwise. It would, no doubt, have been contended in reply that the words”religious character” and “spiritual purpose” are too vague to justify a Court in holding a gift to such a body as being for the advancement of religion. However, I have not to consider such an argument, for the booklet proceeds to amplify and particularise the Society’s objects in a manner which compels me to base my conclusion on the Constitution and Rules as a whole, and not on any single introductory pronouncement.
The second Fundamental Law of the Society reads as follows:
“That the Catholic Young Men’s Society be defined as an ecclesiastically approved association of Catholic young men founded by Dean O’Brien of Limerick for the purpose of fostering by mutual union and co-operation the spiritual, intellectual, social, and physical welfare of its members, and in obedience to and under the guidance of the Hierarchy and their representatives, of taking part in the great campaign of Catholic Action.”
Now, while the term “Catholic Action” conveys a meaning to every educated person who does not live in a balloon, I cannot claim to know, judicially or otherwise, that it always means the same thing, with the same manifestations and limitations, in every place and in every period. Catholic Doctrine and Catholic Action are quite different terms. In fact, from a lawyer’s point of view, no term could be much more vague than Catholic Action. The Constitution of the Catholic Young Men’s Society does not define it, and no affidavit has been filed to assist me to its meaning and limits. The booklet referred to does, however, give some instances of Catholic Action, such as Vigilance Committees, and Committees for Literature, Stage, Cinema, and to oppose the infiltration of anti-Christian ideas and for housing and relief. Again, I find in the 7th Fundamental Law that each Branch of the Society is to be affiliated to the Arch-Confraternity of the Immaculate Heart of Mary, which, in turn, is described as “for the conversion of sinners.” There is nothing about”the conversion of sinners” in the Constitution of the Catholic Young Men’s Society itself, but the affiliation of the Society to the Confraternity in question, taken in conjunction with the declaration of paramount purpose, and the propagandist and other aims alluded to, have led me to the conclusion that one of the cardinal objects of the Catholic Young Men’s Society is the advancement of religion. That is in law a charitable purpose. Hence, I must answer in the affirmative the first question I have propounded for my own solution. I now pass to the second question.
The second Fundamental Law of the Catholic Young Men’s Society referred to sets out first, at any rate in order of place, a composite object of a quite different kind. It has four sub-heads, all confined to fostering the welfare of the members of the Society themselves. The four aspects of members’ welfare to be fostered are:(a) spiritual, (b) intellectual, (c) social, and (d) physical.
In addition to these objects, I find on pages 14-15 that the Diocesan Council is to provide, where possible,”organisations for the material benefit of the members, such as business guilds, thrift societies, sick benefit, etc.”On page 22, one of the objects of the Federation of the Catholic Young Men’s Society is declared to be to watch over and defend the spiritual, and, as far as possible, the temporal interests of individual members and affiliated Branches.
Now, if these objects extended to the welfare of the community at large, or of a defined section of it, I should have to go deeply into the argument of counsel that all, or at least some of them, could be regarded as charitable; for, as was emphasised by the Court of Appeal in In re Macduff (1), some trusts for purposes beneficial to the community are not charitable. “Social welfare” I should rule out at once. If, as has been decided, “philanthropic purposes” is too vague, “social welfare” seems much more vague. The same applies to “intellectual welfare.”But, “spiritual welfare” and “physical welfare,” the latter redeemed from vagueness by indication of the methods of promoting itby national pastimes and contestsare not to be dismissed so easily. As regards “spiritual welfare,” I think that, taking the rules as a whole, it is clear that promotion of the “religious welfare” of the members is intended to be, and is beyond doubt, an object of the Society. But, the promotion of their own religious welfare was precisely the object of the Dominican nuns in Cocks v. Manners (2), a case quoted as still authoritative by the highest Courts, including the late Irish Court of Appeal. Yet, the purpose of the Dominican nuns was held not to be charitable. Without presuming to question a decision which I must take to be good law, I think something might be said for the potential reactions upon religion amongst the neighbouring public, arising from the very existence in its midst of a community of nuns, all of whom had given up fortune, pleasure, and liberty for an ideal, even if confined, as the Court said, to working out their own salvation. Example is sometimes better than precept, and the pattern of a self-sacrificing life may impress some more than an indifferent sermon. One must have read history to little purpose who does not know that men have sometimes done more to influence public causes by supreme self-sacrifice than they could ever have accomplished by missionary endeavour. On the other hand, one can see the force of what Lord Brougham said in the Attorney-General v. Haberdashers’ Co. (3) against admitting a gift which is only consequentially charitable as a charitable use. 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 (1) has drawn it,
What, then, of the promotion of physical welfare by indicated means? If I had to go into that, I should have to try to reconcile In re Nottage (2) and In re Patten (3)with In re Hadden (4) and Shillington v. Portadown U.D.C. (5). These cases, in turn, would raise the question of whether the “purpose of the gift” can be separated from the “motive of the donor.” Thus, in In re Cranston (6) FitzGibbon and Walker L.JJ. agreed that to make the gift charitable, it must have contemplated a public benefit, and been actuated by benevolence, while Holmes L.J. held that whether the gift is charitable or not does not depend on the view of the donor. The latter view had been the ground of the decision of Kindersley V.C. in Hoare v. Osborne (7) as it was also in In re King (8).In both these cases, the testatrix made a bequest for the erection of a stained glass window in a church, the motive being to set up a memorial, in one case of the mother of the testatrix and in the other case of herself. This motive was not charitable, but the purpose of the gift, being the ornamenting of a church, was. It was held that the motive was immaterial. This principle was approved of in In re Hummeltenberg (9).
I am not without some views on this subject; but as I think I can decide the present case without expressing them, I shall only advert to one of them, and it is this. If the donor’s motive is decisive, and if the impelling motives of those who endow public enterprises, or even of governing bodies who control them when they are endowed, could be probed and proved, I am afraid the result would be a holocaust of many admirable and useful trusts; for, quite apart from possible cases of devout donors whose object may be the laudable, but legally non-charitable, one of benefiting their own souls, it is commonly believed that a yearning for honours, publicity, and other forms of temporal vain glory, with or without financial gain, is not seldom the motive for charitable disposition.
Be all this as it may, it is well settled that a gift for a voluntary association of persons for their own benefit is not charitable: In re Clark’s Trusts (1); In re Dutton (2); Carne v. Long (3); Cummack v. Edwards (4), and many other cases.
A distinction has been drawn where the gift is for an institute founded for the benefit of all local inhabitants: In re Mann (5). Moreover, the rule does not apply where”poverty is clearly an ingredient in the qualification of members”: per Jessel M.R. in Spiller v. Maude (6). In In re Lacy (7), Spiller v. Maude (6) was said to be still good law. In re Buck (8) is to the same effect. However, there is no question of poverty in the bequest to the Catholic Young Men’s Society, so that these cases do not help.
It was argued by counsel that by reason of its numbers and character the Catholic Young Men’s Society constituted a class or section of the public, and in that way it was sought to apply the many cases in which a trust for the benefit of a defined class has been upheld as charitable. This opens up one of the many anomalies of the law of charities. In In re Christchurch Inclosure Act (9)a trust was upheld as charitable, although the gift was only for the benefit of a small section of the inhabitants of a certain village, who happened to own their cottages. But I am afraid the cases establish that the class or section of the public must be determined by geographical location or by some factor other than voluntary association. This may lead to strange results. If a factory is erected in a rural area and a number of workmen are provided with new houses, thus forming a village, and if somebody wishes to leave a permanent gift in perpetuum for the adult workmen resident in the village, there would seem to be no difficulty. But, if he left it on trust for the village club, knowing, as might be the fact, that all the adult workmen in the village were members of the club, the gift would fail, unless the principle of In re Mann (5) could be made applicable to the particular case. Yet in both instances the beneficiaries would be in reality the same persons, and might not the workmen in coming to work in the new factory and forming the village with that object in view, be said to have voluntarily associated themselves together for their mutual benefit just as truly as if they formed a club for another kind of mutual benefit? Perhaps something like this was in the minds of counsel when they argued in at least one reported case that it would be absurd to uphold the trust in favour of the occupiers for the time being of a few cottages, as in the Christchurch Inclosure Case (1), and to invalidate a trust for possibly an immensely larger number of persons who might form a club for their mutual benefit. I find further introspection into this branch of the problem as disturbing as an attempt to conceive infinity. But there is consolation, if not encouragement, in the words of Lord Sterndale M.R. in In re Tetley (2). He said: “I, at any rate, am unable to find any principle which will guide one easily and safely through the tangle of cases as to what is, and what is not, a charitable gift. If it is possible I hope sincerely that some time or other a principle will be laid down. The whole subject is in an artificial atmosphere.” So, in Cranston’s Case (3) Lord Justice Holmes said about this same tangle of cases:”It is difficult to reconcile them with each other or to extract from them any guiding principle.”
The most recent reported cases in which the purposes of a voluntary association were held not charitable was In re Topham (4). It was a case of a club, the objects of which were almost word for word the same as those of the Catholic Young Men’s Society, except that Catholic Action was not one of them. They were the religious, moral, intellectual, physical and social improvement of the members.
This decision was in accord with the whole weight of authority. I must, therefore, hold to be non-charitable in the technical sense all those objects of the Catholic Young Men’s Society which are confined to the welfare of the members. But, as I have already held that one main object of the Society is charitable, it follows that I must proceed on the basis that this Society has mixed objects, some charitable and others not.
Mr. Nolan-Whelan, while strenuously contesting the conclusions which I have already stated, was quite undaunted by the possibility that I might arrive at them, or even that I might be right in doing so. He had further lines of fortifications behind which to retire. Even if, he contended, the objects are mixed, they must be read conjunctively, and I must hold the sum of the objects to be charitable, ignoring those that are not so. There have been many cases where mixed objects have been considered. In some they have been treated conjunctively and in other disjunctively. I think the practical force of the distinction can be made clear by paraphrasing some observations of Lord Sterndale M.R. in Tetley’s Case (1).I might express it this way:If the objects can be so regarded that the charitable object is so coupled with the non-charitable objects that the trusteesor, in the case of a voluntary association, the controllers of that body cannot apply the fund, the subject of the trust or gift, to any non-charitable object without at the same time thereby advancing the charitable object, then the whole trust may be treated as charitable. If those who have to apply the fund “might in their discretion apply the whole income and capital” to the non-charitable objects, “it follows,”to use the words of Lord Shand in Hunter v. The Attorney-General (2), “that, if it be held that one of the purposes is not charitable, there is not an effectual charitable bequest of the residue as a whole.” He said “residue”because in that case the bequest was a residuary one.
In Morice v. Bishop of Durham (3) Sir Wm. Grant said:”The question is not whether the trustee may apply it”[the fund] “upon purposes strictly charitable, but whether he is bound so to apply it.”
When counsel seek to have the objects read conjunctively, they mean that the mixed objects should be recognised as being so inextricably conjoined that any money that is used to promote the one must in the very nature of things be used to promote the other. In In re Bennett (4), itself founded on Dolan v. MacDermot (5),which latter case was declared to be still law save for onedictum of Lord Romilly, certain objects which, taken alone, might have been non-charitable were construed as ejusdem generis with preceding objects which were charitable, and hence were themselves limited and narrowed down to charitable objects. In In re Best (6), following In re Sutton (7), a bequest for “charitable and benevolent”purposes was upheld, although a gift for benevolent purposes alone would have been void for uncertainty, the intention being construed to be that only such benevolent purposes as were also charitable purposes should benefit.
In In re Mariette (8) a gift to provide squash racket courts for a school was upheld, games for the boys being treated as to all intents and purposes an essential part of the educational curriculum. In In re Scowcroft (1) there was a devise of a building for a Conservative Club and Village Reading Room to be maintained “to further Conservative principles and for religious improvement.” These two objects were treated as so conjoined that neither could be excluded in the legitimate user of the building. I think the more obvious basis of the decision, and it was certainly part of it, was that “Conservative principles” did not constitute a separate object, but merely qualified the”religious improvement,” which could not be made any less a charitable purpose by being restricted in its operation to lines consistent with Conservative principles.
On the other hand the number of cases where the objects had to be treated disjunctively is legion. Amongst them are: Hunter v. Attorney-General (2); Blair v.Duncan (3); Attorney-General v. National and Provincial Bank (4); Houston v. Burns (5); In re Eades (6).
In Ireland, Miley v. Attorney-General and Rooney (7),illustrates the disjunctive objects, although the point there was whether a legacy for the College of Surgeons, which had two objects, one the promotion of surgery, which was charitable, and the other the promotion of the interests of the profession, which was not charitable, could be treated as a bequest for charitable uses under 7 & 8 Vict. c. 97, s. 16. It was held that it could not.
Closely allied to this submission that the mixed objects are conjunctive is the theory of a “predominant” charitable object to which the non-charitable objects are merely subsidiary, and in reality not objects in themselves at all, but only means to an end. I think both contentious might be considered and dealt with together. This “predominant object” idea was referred to in Bowman v. Secular Society, Ltd. (8). At p. 443 Lord Parker says: “Any argument in favour of the testator’s general charitable intention . . . would have had to proceed on the footing that the Society’s first and paramount object was charitable, and that its subsequent objects, though not charitable in themselves, were entirely subsidiary to the first object.” Later he says: “The suggestion must be that . . . all the subsequent objects (being non-charitable) must, on the hypothesis that the first is charitable, be ignored altogether . . . Such suggestion appears to rest entirely on the assumption that the object first specified in the memorandum must be the paramount object, and that all the other specified objects must be subsidiary or subordinate.” The argument in the present case is that not the first objects, but the second object specified in the Fundamental Laws of the Catholic Young Men’s Society must be the paramount object, and that the first objects specified must be treated as subordinate. I do not, however, attach much weight to the fact that the non-charitable objects are given pride of place, because if they are only means to the dominant end, it might be natural to mention them first. To return, Lord Parker says of the assumption in question, that “it introduces a new, and in my opinion a very dangerous, canon of construction.” The House of Lords was divided on whether or not one of the objects there was predominant and the others merely subsidiary; but I am not concerned with that. I only refer to Lord Parker’s words as a succinct expression of the theory I am asked to adopt in this case.
The theory appears again in In re Hood (1). There, the testator expressed two objects. In effect these were the advancement of Christian principles and the extinction of the drink traffic. The second object was treated as itself charitable. But the Court of Appeal also dealt with the case on the assumption that the second object was not charitable, saying that this would not matter, as the specification of the two objects did not indicate “two separate spheres of activity,” and that the first object was the paramount purpose, the second merely “pointing out one of the ways in which the main object could be attained.”
Again, in In re Hadden (2), although the case turned on another point, the same idea of a dominant object was recognised by the Court, and a second purpose there in question was treated as qualifying the main purpose and relieving it from what might otherwise have been the fatal defect of vagueness. Inland Revenue Commissioners v.Yorkshire Agricultural Society (3) is another decision based on the same idea. It was an income tax exemption case. The Society’s dominant object was the general promotion of agriculture. But, like the Royal Dublin Society, it also gave considerable advantages to its members. These latter purposes were ignored, and it was held that the Society was established for charitable purposes onlywhich in that case meant the main purpose of promoting agriculture.
One dictum of Lord Justice Atkin in that case is significant. He said: “if it were a substantial part of the object that it should benefit its members, I should think that it would not be established for a charitable purpose only.” Finally, in Peterborough Foxhound Show Society v. Commissioner of Inland Revenue (1) Lawrence J. says: “The question is whether the Society’s main or dominant motive is charitable.”
In the case of Cocks v. Manners (2) there is a feature that I have not seen noted in the many references to that case in the Reports. I have said the Dominican nuns were held non-charitable because their sole object was said to be “personal sanctification.” But the Sisters of Charity were held to be charitable, because they nursed the sick and taught the children of the poor. The point I have never seen noted is that the Chief Clerk had found in the case of the Sisters of Charity also that their “primary object” was “the personal sanctification of the members, who, as a means thereto, employ themselves . . . in teaching the children of the poor and nursing the sick.” Thus both Orders of nuns were certified as having the same object, namely, personal sanctification; the difference being that with the Dominican nuns it was their sole object and with the Sisters of Charity it was their primary object but not their sole object. The Vice-Chancellor apparently ignored this “primary object,” for he referred to the Sisters of Charity as “in point of law, a voluntary association for the purpose of teaching the ignorant and nursing the sick.”In view of the modern cases, I can only understand the decision that the Sisters of Charityif in truth theirprimary object was the same as the sole object of the Dominican nunswere a charitable body, on one or other of two grounds. First, that their so-called primary object should not be treated as an object at all, but merely as ulterior motive, on the basis that motive and object can be distinguished, or second, that the three objects, self-sanctification, nursing, and teaching were so conjoined, that any endowment of the good Sisters must necessarily be applied for the advancement of all three objects, and could not be used for what was called the work of “self-sanctification,”without advancing at the same time the altruistic works of charity.
The first of these explanations seems to have inspired the English decision in In re Delany (3). There, bequests to the Poor Sisters of Nazareth and to the Little Sisters of the Assumption were held to be charitable gifts, and so void under the Mortmain Act, 1736. Referring to the Sisters’ work of caring for the infirm poor and the orphans, Farwell J. said:
“This admirable object is not rendered less charitable within . . . the Act of Elizabeth because the sisters also desire to sanctify their own souls . . . whether such sanctification is regarded as concurrent with or assisted by their charitable work. The Court can only look to the actual purpose aimed at by the association, and cannot inquire into the motives of the members.”
In that case, professedly following Cocks v. Manners (1),a distinction was drawn between the “outward and visible object,” and the inner and spiritual motive. I am afraid that the distinction between “motive” and “object”tends to create a blur in my mind. A motive suggests to me something that impels and an object something that attracts. I cannot conceive one operating without the other or not conducing to the same result. When one speaks of an act being done with an altruistic object, but an egotistical motive, I think one must necessarily mean that the act is done with two objects and inspired by two motives, and that if the egotistical motive is predominant, the egotistical object must be predominant too, and the subordinate altruistic object must be regarded as a motive also. If this view is right, I should look upon the good Sisters in both Cocks v. Manners (1) and In re Delany (2) as having had two objects and two motives, the one charitable in the legal sense and the other not so; and I should explain the cases, not by any distinction between “motive” and “object,” but on the principle that their work of public charity was so bound up with their work of self-sanctification, that any funds with which they might be endowed could not in any practical way be applied to advance their work of self-sanctification without at the same time being applied equally, and probably a great deal more than equally, in advancing their work of mercy and benevolence. I do not know whether that is the real explanation of the cases; but I think it would be consistent with a fundamental principle laid down in many of the leading authorities; and, indeed, I am not sure that I can see any other explanation of which the same could be said. To put it another way, I should attribute to the nuns in those cases two distinct objects, and I should read them conjunctively in the sense I have already explained.
The conception of a predominant object seems to me to involve the same principle. If there is a predominant object and a second object merely subsidiary, there are still two objects; but in the nature of things it will be impossible to endow the subsidiary object without furthering the predominant object, which the subsidiary object itself exists to further.
Now, in the case of the Catholic Young Men’s Society’s Constitution at p. 15, there are set out in leaded type the four separate heads of the Diocesan Programme. These are (a) Spiritual Formation. (b) Intellectual Life. (c) Catholic Action. (d) Physical Development and Recreation. In my opinion, the authorities coerce me to hold that only head (c)that is, Catholic Actionis charitable in the legal sense, and even it, in respect of some of its specified manifestations, would appear not to be charitable either, in the technical legal sense. There is nothing to indicate that heads (a), (b) and (d) are in any way subordinate or merely ancillary or subsidiary. It is stated in one of the affidavits that the deceased knew that the religious and spiritual objects of the Society are paramount.
I know that too; for the introduction to the Constitution says so expressly. But that could be equally true even if the sole object of the Society wasand I have held it is notthe religious and spiritual uplifting of the members. Assuredly, the religious character and spiritual purpose of the Dominican nuns in Cocks v. Manners (1) were paramount. They were more than paramount; they were the be all and end all of the Dominican community. Yet that did not make the purpose charitable in the legal sense, and I am bound by the authorities to hold that it does not do so.
I can see nothing in the Constitution of the Catholic Young Men’s Society to indicate that the members of any particular branch might not quite constitutionally decide at any particular time that conditions in their sphere of activity for the time being did not require any Vigilance Committee work or outside propaganda, and that they should concentrate all their energies and devote all their funds and facilities to religious exercises confined to their own members and also to their social, physical, and even material welfare. These would be quite praiseworthy objects, the promotion of the members’ religious welfare pre-eminently so. But they would not be charitable objects in law. Again, even if they carried out all their objects equally, they might none the less utilise the premises with which this case is concerned solely for the members’ own religious exercises, social intercourse, and even recreation. When I put this to counsel, I was told that it would not be likely. The rejoinder I am bound to make to that answer is to paraphrase the words of the eminent Judge already quoted and say “the question is not whether they might use the premises for purposes strictly charitable, but whether they would be bound by their Constitution to do so.”As I construe the Constitution, they would not be so bound.
The British Privy Council has decided in Dunne v.Byrne (1) that even a purpose which is conducive to religion is not necessarily charitable, inasmuch as the mode of carrying it out might have nothing of a religious character about it. But the decision which I have felt bound to study most inquiringly and earnestly of all was In re Byrne (2), where a gift in trust for the Jesuit Order in Ireland was in question. The late Chief Justice held that in that case the gift could not be supported as a gift to the individual members, but that it could be upheld as a charitable trust. The majority of the Supreme Court held, on the contrary, that it could not be supported as a charitable trust for the continuing body in its quasi-corporate capacity; but that it wax valid as a non-charitable gift to the individual members forming a class. The late Chief Justice thought that all the objects of the Jesuit Order were charitable in law. Those objects were set out in an affidavit by the Very Rev. Father Kieran, Provincial of the Order in Ireland. The first object was the securing of the spiritual perfection of the members; but a similar object actuated the Sisters of Charity in Cocksv. Manners (3) and the other Sisters in In re Delany (4);yet this did not prevent their purpose as a whole being held charitable in law. Then, other objects of the Jesuits were educational; and the promotion of education is one of the classic charitable purposes in law. They received emoluments for this work; but so do many educational institutions, including, I am sure, the School in In re Mariette (5), whose bequest to provide squash racket courts for the boys was upheld as charitable. Other objects of the Society of Jesus were those for which, along with education, they are known throughout the worldthe propagation of the Catholic religion and the organization of works of charity in aid of the poor. Unfortunately the report of the case does not indicate which of the Jesuits’ objects the majority of the Court held to be non-charitable. I felt that if I could discover this, it might help me greatly in the present case by way of analogy. It may even be that there were other objects proved besides those specified by Father Kieran. The case is vital, however, because it is a decision of the majority of the Supreme Court, which binds me, and which emphatically affirms and in a very sweeping way the principle already laid down in so many cases, that invalidates trusts for mixed purposes when they tend to a perpetuity. The words of Mr. Justice Murnaghan are:”The work of the Jesuit Body, although largely charitable in the legal sense, is not so exclusively charitable in this sense that a gift may be considered as a charitable gift, if given for the purpose of the Jesuit Order in Ireland.” So far as the Report shows, nothing seems to have been discussed in that case as to the various objects being regarded conjunctively or as to the possibility of those which were held to be charitable being predominant, and the others subsidiary. Nor, as I have said, were the non-charitable objects indicated in the Report. But although the wording of the judgment quoted might be construed as meaning that charitable purposes must be exclusively charitable in law in order that a gift for those purposes, if it tends to a perpetuity, may be upheld, I do not think that that was intended, for if the Court had meant to overrule the many cases in which subsidiary purposes have been ignored, and even alternative non-charitable purposes, though hardly merely subsidiary, treated conjunctively and read as merely qualifying the charitable objects, I am sure this intention would have been fully and unmistakably expressed. The chief impression the case makes upon me is this, that if I were to hold the present bequest to the Catholic Young Men’s Society charitable, the Supreme Court having held a like bequest to the Jesuit Order in Ireland to be non-charitable, I should be at a loss to say on what ground such a decision of mine could be supported. The answer to the third question propounded in the summons must therefore be in the negative.
Kelly v. Walsh and Durkin.
Dixon J.
[1948] IR 388
DIXON J. :
The point in this case is whether the bequests to Father Walsh are invalidated by the provisions of s. 15 of the Wills Act, 1837. This depends on whether or not Father Walsh takes a beneficial interest in them within the meaning of that section. One of the bequests is the sum of £40 for Masses for the repose of the testator’s soul and the other is a residuary bequest for the same purpose.
It is clear that both bequests were made for the spiritual purpose of having Masses said for the testator’s soul. There is clearly a moral obligation and, according to a passage contained in the judgment of Chief Baron Pallas (at p. 273) in O’Hanlonv. Logue (2), these bequests also carry a legal obligation that the Masses be said. The Masses need not, however, be said by the named donee of the bequests. He can arrange to have them said by other priests. The essence of the bequests is the spiritual purpose of having the Masses said.
It is agreed that the bequests are charitable bequests and I think Mr. O’Connor’s contention is sound when he says that it would be inconsistent with this to hold that the particular donee could be regarded as taking a beneficial interest or devise within the meaning of s. 15 of the Wills Act, although he may, himself, benefit incidentally in a material sense thereby.
I hold, accordingly, that the bequests give no beneficial interest to Father Walsh and that they are not in validated by s. 15 of the Wills Act. I therefore affirm the decision of the Circuit Court Judge.
Maguire v. Attorney-General
[1943] IR 238
Gavan Duffy J.
The late Sister Mary de Sales, of the Order of Mercy, otherwise Mary Maguire, by her last will bequeathed to her executors all the moneys accruing to her from the estate of her deceased brother, Thomas (of Lisnaskea), and directed her executors and trustees thereout to expend a sum not exceeding £5,000 in founding a Convent of Perpetual Adoration at Lisnaskea or elsewhere as they might determine, and she directed that the residue of her estate should be applied to charitable purposes. The main question for decision is the question whether the bequest of £5,000 is in law a valid charitable bequest. On the religious aspect of the gift I have an affidavit from the Very Rev. Canon Maguire, P.P., of Castleblayney, one of the executors, and an affidavit, filed on behalf of the Attorney-General, by the Very Rev. Canon Dargan, D.D., President of Holy Cross College, Clonliffe, and I shall begin by summarising the evidence very briefly.
Dr. Dargan deposes that the primary purpose of exposition of the Most Blessed Sacrament is to honour God incarnate, really . present under the Sacred Species; the Blessed Sacrament is enclosed in a monstrance and placed on a throne upon an altar, in acknowledgment of the Kingship of Jesus Christ in the Blessed Eucharist and as an invitation to the faithful to pay Him the tribute of adoration. The devotion of perpetual adoration of the Blessed Sacrament is well known in the Catholic Church; strictly perpetual adoration requires some person to be engaged always, day and night, in prayer before the Blessed Sacrament, but religious institutes, where adoration is maintained during the greater part of each day and all through certain nights, are usually called institutes of perpetual adoration by Catholics. In practice, the devotion is always associated with reparation for the sins of men, thus propitiating God and securing His clemency towards guilty man; invariably and as a matter of course the participants pray for the welfare of the Church, the conversion of sinners, and the needs, spiritual and temporal, of persons who have asked for prayers. A convent for perpetual adoration is comparable to a spiritual powerhouse.
I am further informed that continuity of adoration is secured in practice only through religious institutes, usually of women, and the approval of the competent ecclesiastical authority is essential; the constitutions of convents for perpetual adoration may vary considerably. Mass is always said daily in any such convent, and daily Mass would certainly be prescribed by the rules of the convent; and daily Benediction of the Blessed Sacrament is also a matter of course. I need only add that the contemplated convent would be the home of a society, recognised by the Church, of Catholic women, bound by religious vows and living under a strict rule, which might cut them off completely, or almost completely, from the world outside. And adoration in the deep seclusion of an enclosed convent may be absolutely private, though the evidence shows that the admission of the public at certain times every day is usual.
The purpose of the testatrix was unquestionably to secure the perpetual adoration of the Blessed Sacrament; the Convent is the means to that end.
Lisnaskea is a little place in Fermanagh; its population is stated to be mainly Catholic. The testatrix was born there.
A bequest of £4,000 Consolidated Stock upon trust to apply the income for the exclusive benefit of the Dublin
Home for Starving and Forsaken Cats was held by the Court of Appeal in Ireland thirty years ago to be a valid charitable gift, Swifte v. Attorney-General (1)because cats are useful to man. Since the legal concept of charity stretches so far, it is a shock to one’s sense of propriety and a grave discredit to the law that there should, in this Catholic country, be any doubt about the validity of a trust to expend money in founding a convent for the perpetual adoration of the Blessed Sacrament; but the law of charitable donations has strayed far from reality and its perspective has grown hazy, and a gift for secluded devotion, as I must assume this gift to be, has been held by eminent Judges to be outside the purview of the charity recognisable in the Courts. A gift, now recognised as charitable, for the celebration of the Most Holy Sacrifice of the Mass, though to be said in private, may be thought to stand alone as a provision for the central act of the Catholic faith: In re Caus; Lindeboom v. Camille (2), and I must, therefore, look further into the authorities. The fundamental objection must be that this bequest cannot be charitable because no public benefit will necessarily result from it; unhappily the test is elusive, since men’s notions of public benefit will vary with the outlook of their age. Of other possible objections, any difficulty as to the power of the Court to ensure the proper administration of the endowment seems to be fully met by the judgments in Attorney-General v. Hall (3). As to remoteness, though an indefinite time must elapse before the executors can carry out this quite impersonal trust, the gift must be deemed immediate and free of the rule against perpetuities, provided I find an intention to make an unconditional gift to charity: Gray on Perpetuities, 4th ed., par. 607. The fundamental objection is therefore the only one that I need examine to determine whether this is a valid charitable bequest.
The recognition of religious purposes as charitable in law, because religious, is thoroughly well settled. In 1817 Lord Eldon held that a bequest to maintain and propagate the worship of God was charitable: Attorney-General v.Pearson (4). In 1824 Lord Manners in this country found a good charitable gift in a direction to the trustees of a will to lay out £2,000 at their discretion, until a boy came of age, “in the service of my Lord and Master, and I trust
Redeemer”: Powerscourt v. Powerscourt (1). Lindley L.J., speaking for an eminent Bench, in 1893 declared that a bequest to a religious institution, or for a religious purpose, is prima facie a bequest for a charitable purpose: In re White; White v. White (2). Contrast Stewart v. Green (3).
It has proved impracticable to define the test of public benefit. Very narrow sections of the community have answered the test for non-religious charity, a bequest to a man’s poor relations: Attorney-General v. Northumberland (4), for instance, and a gift to the incapacitated employees of a large emporium in London: In re Rayner; Clontman v. Regnart (5), and for the education of the children of employees, and even a fund for a firm’s old and worn-out clerks (with one candidate for relief): In re Gosling; Goslingv. Smith (6); religion seldom fares so well, though Romilly M.R. upheld a testamentary annuity for three persons for ever to study the Bible and to say a prayer on his anniversary in praise of God: In re Michel (7),and actually held charitable a bequest to diffuse “the sacred writings” of a patently demented visionary, whose sectaries had practically disappeared after her death: Thornton v. Howe (8).
On the other hand, a gift by a Chinese testatrix for the erection of a house where rites should be performed to her late husband and herself was held non-charitable and void, because meant for an observance which could lead to no public advantage and would benefit or solace only the family: Yeap Chea Neo v. Org Cheng Neo (9); and a legacy to a pretended Society for the Suppression of Cruelty to Animals by United Prayers failed, when Chitty J., finding the main intention to be the improvement of the supplicants by private prayer, and not the suppression of cruelty, held that there was no purpose of general utility to make the gift charitable “within the statute” of Elizabetha phrase to be noted. The piety of enclosed religious orders has been assigned to the same category, on the authority of an English case which has enjoyed a remarkable vogue since 1871; Sir John Wickens V.C. decided in Cocks v. Manners (10):
(a) that a non-charitable testamentary gift to a religious institution may, if involving no perpetuity, be sustainable as a personal gift to the members, provided they be in law to spend the money as they please (and it is under this head that the case has often been called in aid by the Irish Courts);
(b) that a certain gift to a contemplative convent was not charitable in law; and
(c) that a gift for religious purposes, provided it be for religious services tending to edify the public, is charitable in law (and I regret any need that there may be to uphold a pious gift for its accidental effect and not for its intrinsic merit).
The word “services” must be construed broadly; it could not, on the authorities, have meant only rites and ceremonies.
Two convents were residuary legatees and either, if charitable, had, under an English Act, to forfeit part of the gift, payable out of leasehold land; one, a Dominican convent, presented as a body of celibates, associated for the purpose of sanctifying their souls by prayer and contemplation, was held to have none of the requisites of a charitable body, since it tended neither directly nor indirectly towards the instruction or edification of the public and the gift was “neither within the letter nor the spirit” of the Elizabethan statute; and the gift was held valid as an immediate bequest to the existing community; the other convent was a house of Sisters of Charity of St. Paul, who taught the poor and nursed the sick as a means to the personal sanctification, which was certified to the Judge after an inquiry to be their primary object; this body was held to be charitable by reason of its work and competent to share in the pure personalty only; the Vice-Chancellor trusted the Reverend Mother to apply the money properly; (that is the principle of Walsh v. Gladstone (1)); but, in affirming the charity, he passed over both the primary object (which had made the other convent non-charitable) and the rule that a gift to be charitable in law, must be destined exclusively to purposes wholly charitable in law; the apparent inconsistency is critically examined by Mr. Justice Black in Munster and Leinster Bank v. Attorney-General (2). A quarter of a century later Rigby L.J. in an illuminating comment, explained that the Dominican Convent, which abstained “even from good works as regards the outside public” could not be called a charity: In re Macduff; Macduff v. Macduff (3); and shortly afterwards Farwell J. declared unequivocally that there was no”charity” in attempting to save one’s own soul, because
charity, that is charity in law, was necessarily altruistic: In re Delany; Conoley v. Quick (1). Lord Macnaghten in Dunne v. Byrne (2) added his high authority to the view that the gift to the Dominicans was certainly not charitable.
It was, no doubt, hard for these Judges to apprehend the true raison d’être of a Catholic religious Order, but as recently as 1917 a distinguished Irish Catholic Judge went further than Wickens V.C. In Commissioners of Charitable Donations and Bequests v. McCartan (3) observing that a monastery is not necessarily devoted to works of charity, such as education or the nursing of the sick poor, and that monasteries of men or women are often institutions whose members devote their lives exclusively to piety, and thatprima facie a monastery, either for men or women, is not charitable, O’Connor M.R. plainly held a trust to establish a monastery not to be charitable; perhaps his reasons were not quite so plain as the conclusion; he did not use the non-edification argument, which would have sounded grotesque in Ireland, and he seems (particularly from the non-official report) to have proceeded on the assumption that a contemplative Order of monks or nuns is in law deemed to be of no benefit to the public and on the principle that without public benefit there can be no charity in law.
These several judgments seem to me to postulate egoism as the note of the monastic life. If an orthodox Catholic can be so strangely misled, perhaps it is hardly possible for any unbeliever to form a clear picture of the higher vocation without passing some days in a monastery, but it is necessary that Christian and pagan critics alike should understand what a monastery is and what it means, and the “egoists” are most willing to let outsiders into the secret.
A monastery of St. Benedict, to take an outstanding example, “has no function in the life of the Church save to provide an ordered way of life based on the teaching of the gospel, according to which its inmates may serve God and sanctify their souls apart from the life of the world . . . the evils of corporate selfishness are excluded by its raison d’êre, which is the service of God in simplicity of life and without contact with the world.”
I quote from the study of early Benedictine and other foundations in England by Dom David Knowles, O.S.B., “The Monastic Order in England,” pp. 4-5, 15 (Cambridge University Press, 1940), where a beautiful description will be found of the life of the “Black Monks” according to the Rule of St. Benedict; “through all vicissitudes the Rule has remained one of the great formative influences in the life of the Church, outlining in majestic simplicity the broad principles of monastic life and government.”
The law laid down by Lord Eldon and Lord Manners seemed plain enough, but a strange effect upon their established principles has been attributed to Cocks v.Manners (1): a testamentary gift to maintain the worship of God or a gift to be applied in the service of the Redeemer remained charitable, unless the donor had been so maladroit as to express his bounty in the form of a gift to a society of cloistered men or women, wholly devoted to those charitable purposes, when the charity was submerged in the overwhelming egoism of the chosen instruments (who with sublime love of their RedeemerI must not say”sublime charity”had consecrated their lives to His worship in their monastery); but, if the donees were a pious community engaged in civic works of mercy, the ensuing public benefit somehow redeemed the inherent vice of the spiritual family, and charity triumphed.
It has been assumed that Sir John Wickens decided, as a matter of law, that a testamentary gift to a contemplative religious Order cannot be charitable on the ground that, in the eyes of the law, the public is neither instructed nor edified by the gift. I agree with the very different view, adumbrated by Mr. Ó CuÃv on behalf of the Attorney-General. The decision on this point seems to me incontrovertibly to have been 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. Perhaps all cloistered cenobites were regarded as eccentrics in mid-Victorian England. Possibly they may be so regarded in England to-day. The law laid down was that religious purposes, to be charitable, required services tending to instruct or edify the public; the fact was assumed that the Dominicans did not pass that test. Taking that view of Cocks v. Manners (1) I hold that there is not now, and never has been, the flimsiest warrant for attributing the same outlook to public opinion here. I shall waste no time in establishing the proposition of fact that the cloister is a powerful source of general edification in this country. The finding, or assumption, in Cocks v. Manners (1) that the convent of a contemplative community tended neither directly nor indirectly towards public edification has no scintilla of authority as a determinant of the actual position among us.
I have said so much about the judgment of Sir John Wickens because it loomed so large in argument here; I was earnestly invited to overrule Cocks v. Manners (1)in order to validate the bequest before me; that prayer was made under the common misapprehension as to the true result of Cocks v. Manners (1) on the material point. But I should be very sorry to appear to reduce the validity of this particular gift to the level of an appraisement of public opinion; moreover the convent here is only an instrument to achieve the desired end. I believe the gift to be valid, and, if it is valid, the Attorney-General and the executors are in my judgment entitled, under a Christian polity, to have its validity established upon a truer and a more substantial foundation.
The whole difficulty in such a case as the present is traceable to the Elizabethan statute of Charitable Uses of 1601, and Mr. O’Reilly is right in appealing, for the validation of the gift here, to the pre-existing common law, which has been overlooked and overlaid to an extent almost beyond belief. The value of the statute lay in its enumeration of a series of public purposes as being charitable in law; but the statutory emphasis on works of public benefit induced Judges, examining religious donations, to test their claim to be charitable by the views of the day as to the likelihood of some public good ensuing upon their validation. Judges were misled into looking for a code of charities in the preamble to the Act, whereas, on the true view of the Act, “the objects there enumerated,” to quote Lord Cranworth in London University v. Yarrow (2), “are not to be taken as the only objects of charity, but are given as instances.” The Act contains no index or chart of charities; it merely provides new machinery for the reformation of abuses, per Lord Macnaghten in Commissioners for Special Purposes of Income Tax v. Pemsel (3). Hence the statutory list, if misread as a pandect, becomes a snare, inducing Courts to test the claim of a gift to be charitable by ascertaining whether it is “within the statute” and to condemn religious gifts found to be outside its purview. Now, the statute does nothing to impair the charitable character, under the antecedent and continuing common law, of the prominent category of charities constituted by religious donations; the repair of churches is just mentioned among the recognised good works and the jurisdiction. of the Ordinary is expressly preserved, but pious uses generally are left out and the omission was deliberate. Sir Francis Moor (“Expositions on the Act, ad incip.,appended to Duke’s Charitable Uses (1676), p. 131), who certainly ought to know, testifies that a gift of land to celebrate divine service “was of purpose omitted in the penning of the Act, lest the Gifts intended to be imployed upon purposes grounded upon Charity, might in change of times (contrary to the minds of the Givers) be confiscate into the King’s TreasuryFor religion being variable, according to the pleasure of succeeding Princes, that which at one time is held for Orthodox, may at another be accounted Superstitious, and then such lands are confiscate, as appears by the Statute of Chantereys, 1 Ed. VI, cap. 14.”
The prudence of the canny draftsman is, no doubt, to be commended; so is the candour of Serjeant Moor’s confession. But lawyers, who conceived the Act to form a code and overlooked the persistence of the common law of pious uses, found themselves in desperate straits: thus, treating the list in the preamble to the Act as being an encyclopaedia of charity. Matthew Bacon and his editors (Bac. Abr., tit. “Charitable Uses, (C)”) contrive, under the head “What is a good charitable Use within the 43 Eliz.,” to bring a gift to maintain a preaching minister within the equity (sic) of a statute which omitted pious uses designedly, on the plea from Papinian, strangely incompatible with the context, that summa est ratio quae pro religione facit.”
The derivative Act for Ireland, the Statute of Pious Uses, 1634, (10 Car. I, sess. 3, cap. 1), (literally unintelligible as enacted), has only a little more connection with pious uses than the Act of 1601, but I need spend no time on it, since the legal meaning of charity has more than once been held to be the same in Ireland as it is in England, e.g., by Lord Herschell and Lord Macnaghten in Commissioners for Special Purposes of Income Tax v. Pemsel (1), and the Act of 1634 was no more a code than the Act of 1601. Incidentally, both Acts have been repealed. To rescue the gift here from the post-Elizabethan morass and place it upon firm ground, I am driven back to the earlier position, before proscriptive legislation had for the time being blocked the steady flow of the common law. Lord Buckmaster in Bourne v. Keane (2) declares that the principles of the common law do not change, though their application is capable of indefinite variety with the changing habits and customs of mankind. The old common law of England, from which the common law in force in Ireland before the Treaty, was, for the purposes of charity law generally, indistinguishable, is therefore open to me, now that all statutory bars against the application of the common law to gifts for pious uses have disappeared.
Thus I find myself back in an era when the mass of the people, in England as in Ireland, believes devoutly in the Christian Revelation; religion is, as a rule, taken very seriously; the well-springs of life are spiritual, and the spiritual has not yet been subordinated to the materialistic outlook. Writing more than 450 years ago, Sir John Fortescue tells his young Prince that he must, above all things, implore divine grace (De Laudibus Legum Angliae, cap. VI), and he concludes his learned study with the prayer:”Let every thing that hath breath praise the Lord. Amen.” The temper of our own world towards religion is so remote from the spirit of the old common law that a modern lawyer can hardly approach in its proper setting the position of pious uses and of the Blessed Sacrament at and before the Reformation without first recalling the outlook of long-forgotten days upon the things that did not belong to Caesar. The testamentary judge ordinary is, as he long remained, the bishop of the diocese, and the “dead’s part” of an intestate’s goods falls to the Church and the poor. The intimate connection subsisting between religion and gifts for charity emerges from the assertion of Swinburne, writing on Wills as late as the end of the sixteenth century, to the effect that, ever since Christianity came into the world, it hath been the peculiar care of bishops that gifts to charitable uses should be duly applied (Pt. I, par. 15), and he shows that testaments ad pias causas enjoy many privileges in law (Ibid.). Often a will is made “In the Name of the Father, Son and Holy Ghost,” much as an Irish will to this day so frequently opens “In the Name of God, Amen.” Under the influence of the Church pious gifts and gifts for the poor predominate among the bequests which would be recognised as charitable or as savouring of charity to-day. Anyone who has the patience to plod through Coke’s discursive report of Adams & Lambert’s Case (4 Rep. 104 (b)) will be struck by the recurrence in the same wills, even at this period, circa 1598, and by the frequent juxtaposition, of pious and eleemosynary dispositions. The system of relief comprises hospitals and almshouses founded by the guilds in the big towns and, older and more extensive, the monastic centres and the manifold labours of the mendicant orders; the confiscation of religious land has not yet compelled the enactment of the poor law with its attendant cruelties, in 1601, the year of the charity statute. The recognised way for the man of property to do good at the end of his life is the way of charitable endowment; he may leave money for such charitable uses as the repair of a highway or the foundation of a grammar school, but very often he is the penitent sinner, anxious, before facing his Maker, to atone by giving generously to religion and to the poor. No sense of duty is stronger than the sense of duty that springs from religious conviction. Men believed in God and the belief was apt to be reflected in their testaments.
The common law was impregnated with the faith of the people, naturally and inevitably. The Mass was known to the common law, and the Blessed Sacrament was the express subject of the statute affirming Transubstantiation, 31 Hen. VIII, cap. 14. Cardinal Gasquet cites (“The Eve of the Reformation,” p. 350), amongst a number of gifts for pious uses, taken from the Surtees Society’s “Testamenta Eboracensia,” gifts of a chain of gold to make a cup for the Blessed Sacrament and of crystal beads to adorn the monstrance, used on Corpus Christi Feast Day.”Pollock and Maitland (History of English Law, Bk. 2, ch. 1, par. 2) state that gifts to maintain lamps before particular altars were not uncommon, and the Statute of Chantries (1 Edw. VI, c. 14), found the practice so prevalent as to provide for the forfeiture of revenues from land dedicated to a perpetual light or lamp in a church or chapel; persons familiar with the practices of the Catholic Church will infer that some of the lamps thus condemned were lamps intended to burn before the Blessed Sacrament; in fact Cardinal Gasquet mentions gifts for that purpose (loc. cit., p. 343). The feast of Corpus Christiis said to have been introduced into England early in the fourteenth century.
In the scholarly work of Dom David Knowles, O.S.B., already cited (“The Monastic Order in England,” p. 543), I find the following passage:”It would seem to have been the universal English practice, at least in the monasteries, for the Eucharist to be kept in a vessel hanging from the roof or a beam above the High Altar. The actual pyx in which the Hosts were kept was often made of gold studded with precious stones, and sometimes encased in a vessel of the shape of a saucer to which the chain or cords were attached; sometimes this took the form of a dove. Before it burned constantly a lamp or taper, and in the middle of the monks’ choir usually hung another circular holder of precious metal, supporting candles or lamps which were lighted in greater or less quantity on the various feasts”; and instances are given from Canterbury and St. Albans and Battle and Glastonbury. There appears, however, to be no evidence that perpetual adoration became a practice in England before the Reformation.
But research into the extent of the practice of the adoration of the reserved Host in Englandthe Irish sources are still difficult of accessis unnecessary here, because Palles C.B. when he rediscovered the common law of pious uses in O’Hanlon v. Logue (1), in one of his greatest judgments, decided the present case for me conclusively. The Chief Baron examines the old spiritual tenure of land in frankalmoynewhich (though often requiring Masses) I may describe succinctly, in the language of Pollock and Maitland (Bk. 2, ch. 1, par. 2), as a gift of land with a general stipulation for the donee’s prayersand proceeds to show, from Bracton and from Pollock and Maitland, that these donations were made primarily to God and to the Church, and only in a secondary sense to the canons or monks, so that in practice a gift for the abbey of Ramsey would take the form of a gift “to God and St. Benet of Ramsey Abbey” or simply “to God and St. Benet.”
Mr. O’Reilly has referred me to analogous grants of land in the Book of Kells (see Miscellany of Ir. Archl. Socy. (1846):”Irish Charters in the Book of Kells” (O’Donovan))”to God and Colmcille and to Bishop ó Cellaig” and “to God and to pious pilgrims.” “All this,” the Chief Baron declares, “shows the true reason why the common law held the gifts pious. It was because they were gifts to God: gifts which provided for the worship of God.” And he holds the gift then before the Court [for Masses] to be charitable “first, and principally, by reason of the piety which is the essence of the gift to God, the gift which is to be applied to His divine worship”; even gifts for Masses would have remained charitable after the Reformation, as involving a general principle of piety, had they not been made illegal.
The common law knew the Mass. The common law knew the Blessed Sacrament. The common law knew the adoration of the Blessed Sacrament. Therefore I know them judicially. The doctrine known to the common law is the doctrine of the Catholic Church. In my judgment, a testamentary gift to found a convent for the perpetual adoration of the Blessed Sacrament is, beyond all doubt, a gift charitable at common law, because it is a gift to God, a gift directly intended to perpetuate the worship of God.
And that conclusion is in harmony with the Constitution enacted by the Irish people “In the Name of the Most Holy Trinity . . . to Whom, as our final end, all actions both of men and States must be referred.”
Palles C.B. and FitzGibbon L.J. justified their decision in O’Hanlon v. Logue (1) on the dual grounds that the gift was charitable at common law and that it imported the element of public benefit necessary to bring a gift within the Statute of Pious Uses. But one ground would have sufficed, since the Act neither codified the law of charity nor superseded the common law of pious uses. I rest my judgment upon the common law. I have no occasion to look beyond it for the resultant good to the common weal. I question the relevance here of the public benefit “within the statute” and that public benefit has shown itself an importunate and unruly amicus curiae in an epoch addicted to disparaging the Kingdom of God. Now that I have found the purpose of the testamentary trust, the perpetual adoration of the Blessed Sacrament, to be a valid charitable purpose in law, no difficulty arises from the fact that the executants of the charity are to be the nuns of a convent, however strictly enclosed; see the judgments of Lord O’Hagan in Stewart v. Green (2) and of Sullivan M.R. in Mahony v. Duggan (3). From the very nature of the subject-matter, the greatness of the purpose must have placed it in the donor’s mind on an immeasureably higher plane than her concern for the convent intended to secure that purpose.
I think the trustees are at liberty, in their discretion, to found the convent either at Lisnaskea or elsewhere in Ireland. I have read the judgments in Revenue Commissionersv. Doorley (4); I do not think that “elsewhere”extends in the particular context and circumstances beyond this country, but, if this view is not accepted, I shall defer my decision on the point for argument.
I must thank Mr. O’Reilly for acquainting me with the brilliant study of the decisions on religious bequests in the nineteenth century, contributed by the late Archbishop Walsh to the Irish Ecclesiastical Record for 1895 (vol. 26)
Brendan v. Commissioner of Valuation
Henchy J.
[1969] IR 212
This Case Stated raises the question whether the nuns’ residence and oratory, which are attached to the school conducted by the Sisters of Mercy in Castlerea, should be exempt from valuation for rating purposes. There is no dispute about the school premises: the Commissioner of Valuation has distinguished it as exempt in the valuation lists. It appears from the Case Stated, and a statement furnished by the Commissioner, that from 1890 until 1961 the convent premises (including an oratory) and the school premises were exempt, but the ground or grounds of exemption are not stated. Up to the year 1955 the school was a primary or national school. In the year 1959/60 the school premises was extensively reconstructed and enlarged at a cost of over £25,000. Since 1955, in addition to national school courses, courses leading to the intermediate and leaving certificate examinations, as well as courses in commercial subjects and cookery and other domestic-science subjects are provided. In 1961 the Commissioner distinguished the reconstructed school premises as exempt, but not the convent residence or the oratory. The appellant, acting on behalf of the community of nuns in the convent, appealed unsuccessfully to the Circuit Court against the Commissioner’s failure to treat the latter two premises as exempt and now appeals further to this Court by Case Stated.
I shall deal first with the residential building, which I shall call the convent to distinguish it from the school and the oratory. The appellant advances two grounds for its exemption: (1) that it should be treated as being used integrally with the school and exclusively for the same purposes without any direct private profit or use; (2) alternatively, that it is entitled to exemption on the ground that it is used exclusively for charitable purposes, namely, the advancement of religion.
The cases cited in support of the first of these grounds fall into two main categories. The first comprises those cases where the question was whether a particular hereditament, treated as an entity and in the light of the totality of its uses, was entitled to exemption: Commissioner of Valuation v. O’Connell 22; Doré v.Commissioner of Valuation 23; McGahan and Ryan v. Commissioner of Valuation 24; Barrington’s Hospital v. Commissioner of Valuation 25;and Maynooth College v. Commissioner of Valuation .26 In each of these cases the problem was whether an exemption existed in respect of the whole or part of the hereditament in question, and the problem fell to be resolved without reference to the use to which other premises was put. The second category of cases cited dealt with a situation where a particular hereditament was exempt, and what the court had to decide was whether a particular part of the exempt premises, or premises used in connection with the exempt premises, could be properly held, having regard to its use, to be captured by the exemption. That is the position in the present case. The school is exempt and the appellant argues that the convent is used exclusively for the same purposes as those for which the school is used, and that consequently the convent is entitled to the same exemption under the second proviso27 to s. 63 of the Poor Relief (Ireland) Act, 1838. To test the validity of this submission, it is necessary to consider the cases.
Maguire v. Newry Guardians 28 was an appeal against the rate made on the convent of the Poor Sisters of St. Clare in Newry. The convent consisted of a large building with some land attached. Two large rooms were used as schoolrooms, two as lecture rooms, and four were exclusively devoted to the use of poor children who were educated gratuitously in the convent. There was another apartment in which food was given to the children and a kitchen in which food was prepared. A considerable portion of the building was used as a chapel by the nuns and such persons as they allowed to use it. The remainder of the building, comprising a refectory and cells in which the nuns slept, was occupied exclusively by the nuns. The nuns were bound by a vow to devote themselves to the care and education of poor female children, especially orphans. Apart from the time spent in religious exercises, the nuns were daily and constantly employed in teaching the poor children, providing food and clothing for them, and distributing fuel to poor families. The Chairman of Quarter Sessions (Jones, Q.C.), before whom the appeal came, held as follows at p. 520 of the report:”Some parts of the nunnery are occupied exclusively by the nuns, to enable them to perform those duties which they have imposed upon themselves. Such parts are not rateable, for the nuns are entitled to reasonable accommodation according to their station, and the course of life which they have adopted. It cannot be said that they have any excess of occupation beyond what is required for the performance of their self-imposed duties.”
The decision in Maguire v. Newry Guardians 29 was followed in Hoope v. Griffith 30 which was also a decision at Quarter Sessions. It was an appeal in which the rating of the Christian Brothers’ School at Kingstown was contested. There were six Brothers living in the premises, which was entirely under one roof. The parlour was used occasionally to accommodate adults who were instructed by the Brothers in the evening, another room was used for keeping school books, another as a library, and the only other room, apart from the chapel, was the dining room which was also used as a study room. About 400 children were educated gratuitously in the school. In allowing the Christian Brothers’ appeal and holding that the whole building was exempt from assessment, the Chairman of Quarter Sessions (O’Hagan, Q.C.later Lord O’Hagan) said at p. 226 of the report:”It is proved that they [i.e. the Brothers] derive no profit from the house, and that they were admitted to it and continue in it only in their quality of teachers, and for the fulfilment of the duties they have undertaken to discharge, voluntarily and gratuitously, to the children of the poor. Adopting the language of the cases, I cannot hold that there is here that ‘beneficial occupation’ without which there is no ‘rateability.’ I think that the occupation is ‘subsidiary’ to the purposes of the schoolcreated, permitted, and existing for no other purpose, and used only for these. I thinkin the words of Mr. Justice Crampton [ Churchwardens of St. Anne v. Linnaean Society 31]it is mere ‘occupation for the purposes of the institution,’ which, ex concessis, is a charityan ‘occupation in furtherance of those purposes, and without profit to any one.'” The court rejected the argument that the sleeping apartments of the Brothers should be rated because they might as well have their lodgings at a distance from the school, holding that the more convenient performance of their duties was promoted by their residence at the scene of their labours.
A contrary conclusion was reached in Sisters of Mercy v. Water Commissioners of Belfast .32 In that case the nuns had a convent and school at Crumlin Road, Belfast, both within the same curtilage. The school was used exclusively for the education of poor children and so was held exempt. The nuns, who lived in the adjoining convent, which had an orphanage attached, taught in the school and, apart from the time spent in teaching, devoted their energies to prayer and works of charity. It was argued that, following Maguire v. Newry Guardians 33 and Hoope v. Griffith 34,the convent should be exempt as being ancillary to the school and necessarily used for the purpose of the running of the school. The Chairman of Quarter Sessions (Otway, Q.C.) rejected this submission and held the convent rateable, giving his reasons as follows at p. 274 of the report:”In my opinion, therefore, inasmuch as the education of the poor must be the ground of exemption in the case before me, and believing that the institution and existence of the convent was for the primary purpose of conventual life for the spiritual advancement of the Sisterhood, and the blessing and benefits they considered to flow from it, that it was not subsidiary or subordinate to the schools, that it was not simply the residence of the teachers, but something, if not a good deal more, and further, that beyond the instance of the Sisters, who sleep in the orphanage, residence was not essential for the imparting of the education which the Ladies of the Convent give so laudably.”
In Heron v. Monaghen 35 the appellant was a national-school teacher who lived in a dwellinghouse which was separate and distinct from the school. The dwellinghouse had been built with money borrowed from the Board of Works through the National Board of Education. It was held by the Queen’s Bench Division that it was not exempt from valuation. Giving the judgment of the Court, Sir M. Morris C.J. said at p. 534 of the report:”A schoolmaster is occupied on business of a public nature when he is actually teaching, but he is so occupied only during part of the day; but when that duty is over, and he returns to his house, how can his occupation of his private house be said to be an occupation for a public purpose? It may be ancillary, inasmuch as it is necessary for him to have a dwellinghouse somewhere. In our opinion this teacher’s residence does not come within any of the exceptions from rateability contained in the several statutes referred to by counsel for the defendant . . .” It would seem that the decision in Heron v. Monaghen 36 would not have been different if the teacher’s residence had been attached to the school building, for then it could equally be said that he would be engaged in business of a public nature only when actually teaching, and that when he retired to his private quarters his occupation would not be for a public purpose and would therefore not be exempt. On that basis, it is difficult to justify the decisions in Maguire v.Newry Guardians 37 and Hoope v. Griffith .38 In Maguire v. Newry Guardians 37 the school run by the nuns was exempt as it was used exclusively for the education of the poor. But it was a day school and when, after school hours and on days when there was no school, the nuns were in their private quarters, it is difficult to see how they could be said to be using them “exclusively . . . for the education of the poor” as is required for exemption by the second proviso to s. 63 of the Act of 1838. The same criticism could be levelled against Hoope v. Griffith 38, at least as far as the sleeping quarters of the Brothers were concerned, for it could scarcely be said that their use of these particular bedrooms was exclusively for the purposes of the education of the pooras it might be argued if the school was residential.
The case of Commissioner of Valuation v. O’Connell 39 was analogous to Heron v. Monaghen .36 The facts were that the parishioners of a parish had a house built as a residence for the parish priest and he resided in it and carried out parochial duties in and from it. It was conceded that the house was held by trustees on a valid charitable trust, i.e, the advancement of religion, but the King’s Bench Division nevertheless held that it was liable to be valued for rating purposes. Giving the decision of the Court, Palles C.B. said at p. 485 of the report:”To be so exempt, they [the house and premises] must be ‘used’, and ‘used exclusively’, for charitable purposes: 15 & 16 Vict. c. 63. s. 16. Any use of such premises by a person who is not an object of the charity is, to my mind, ‘a private profit or use . . . directly derived therefrom’ within 1 & 2 Vict. c. 56, s. 63, and such a profit or use, if it exists, prevents the premises being used ‘exclusively’ for charitable purposes.” Having pointed out that the parish priest was not an object of the charity, Palles C.B. added at the same page:”I desire to be distinctly understood as not deciding that if the main purpose for which a building is used is a charitable one, as is that of an hospital for the gratuitous healing of the poor, the residence therein, as part of their duty, of nurses or a resident physician would necessarily render the use not ‘exclusively for charitable purposes.’ I should be prepared to hold quite the contrary. But in the present case, in my opinion, this house was provided for the benefit and convenience of the parish priest, and not as imposing upon him the personal obligation of residence there which medical gentlemen and nurses may be subjected to.”
In M’Kenna v. Commissioner of Valuation 40 Madden J. said at p. 104 of the report that O’Connell’s Case41 “was decided upon the general principle that if premises are used substantially as a residence they are liable to assessment, although the persons residing in the building use it for the discharge of charitable duties.” Whether that interpretation of the ratio of the decision is correct or not, O’Connell’s Case41 was followed in M’Kenna’s Case 40, where it was ruled that a valuation was properly made on a house outside the town of Carlow in which Christian Brothers resided in connection with their teaching duties in a Christian Brothers’ school in the town. Six members of the Christian Brothers lived in the house, which had five bedrooms, a room for the use of the community, a kitchen and a classroom. The class-room was used for educational purposes about three times a week. Madden J. held that, notwithstanding the regular use of part of the house for educational purposes, it did not cease to be substantially the residence of the Christian Brothers and that it was accordingly rateable. It would seem from the reasoning of the judgment that, even if the house adjoined the school, the result would have been the same.
O’Connell’s Case 41 was also followed in Doré v. Commissioner of Valuation .42 In that case it was contended that the Franciscan Friary in Ennis, in which members of the Franciscan Order resided for the purpose of ministering to the poor in the district, should be exempt from rating. Palles C.B. ruled that the case was governed by O’Connell’s Case 41 and that there was no exemption.
The dictum of Palles C.B. in O’Connell’s Case 41 warning that his decision was not to be stretched to fit the case of nurses or doctors residing, as part of their duties, in a hospital used for the healing of the sick poor, was much relied on in the following cases: Armagh County Infirmary Committee v. Commissioner of Valuation for Northern Ireland 43; Commissioner of Valuation for Northern Ireland v. Fermanagh County Hospital Management Committee 44 and Clonmel Mental Hospital v. Commissioner of Valuation .45 In the Armagh Case 46 a part-time surgeon was required to live in a house within the curtilage of the hospital; it was held by the King’s Bench Division in Northern Ireland that the house should be distinguished as exempt as being used “exclusively for charitable purposes.” In the Fermanagh Case 44some of the nursing staff of the county hospital were required to live in a dwellinghouse which was some 500 yards from the hospital; it was held by the Court of Appeal in Northern Ireland (Babington and Porter L.JJ.; Black J. dissenting), ruling that the dwellinghouse was not exempt, that it was not permissible to look beyond its actual user as a nurses’ residence. In the Clonmel Case 45 a hereditament adjoining the mental hospital was used as a nurses’ home for some of the hospital nurses, who were required by their terms of employment to live there; it was held by Davitt P. and by the Supreme Court, preferring the dissenting judgment of Black J. in the Fermanagh Case 44, that it was permissible to look beyond the walls of the nurses’ home to ascertain the purpose of its user, and that it was used exclusively for the charitable purposes of the hospital and, therefore, that it was exempt.
The existence or non-existence of exemption for the convent in the present case is to be found in the second proviso47 to s. 63 of the Poor Relief (Ireland) Act, 1838. The effect of that proviso is that, the school being exempt (as is agreed) as being used exclusively for the public purpose of the provision of public education, the convent will be exempt only if it is also used exclusively for the same purpose, i.e., the provision of public education in the school. The full nature and extent of the user of the convent by the nuns must first be decided as a matter of primary fact. The question will then be whether, on a full assessment of the user, it can be said as a fair, reasonable and objective conclusion of fact that the purpose of that user is exclusively the provision of public education in the school without any private profit or use to the nuns.
The facts as to the user of the convent by the nuns are not in dispute. Those set out in the Case Stated have been augmented by a further statement of facts which the parties have agreed shall be annexed to and form part of the Case. Up to the year 1961 the convent and school were both exempt from rates. They are joined together by a short passage. The school was built as a national school in or about the year 1887, and the original convent was built about two years later. In 1961 the school, as reconstructed, provided primary education for 300 pupils; and what are described as “post-primary and secondary top classes” for a further 150 pupils. It is a day school only. Classes are from 9.30 a.m. to 4 p.m., with a half-day on Saturday. From springtime until the summer vacation, evening classes are held from 5 p.m. until between 8 and 9 p.m. for students who are preparing for examinations. The school is used outside of teaching hours for rehearsals in connection with a school play or concert at Christmas time, for occasional debates and feiseanna; and during the holiday periods the school library is open on any day that the pupils wish to attend for the purpose of getting and exchanging books. Basketball is frequently played in the school grounds between 4 p.m. and 5 p.m. from Monday to Friday; about half of the matches with other schools are played in the school grounds on Saturday afternoons: pupils also use the basketball pitch during the summer holidays. For all these activities, supervision by members of the community is necessary.
The community consists of fifteen members, ten of whom are full-time teachers in the school and the remaining five of whom assist in the running of the convent and school and in cooking and other duties in the convent. The special objects of the Sisters of Mercy are the education of poor girls, the visitation of the sick, and the protection of poor women of good character; but the activities of this community are directed entirely to the first of these objects. The members of the community are required by canon law and the rules of the Order to reside in the convent and to devote themselves to running the school to the best advantage of the pupils.
The convent comprises bedrooms for the members of the community, a refectory, kitchen quarters, two parlours, and a large hall which is used both as a parlour and as a common room. This latter room is used by members of the community in the evenings for correcting exercises and preparing school work, and the nuns do some school work in their bedrooms. Apart from an occasional short visit from a visiting Sister, the convent is occupied exclusively by the members of the community.
Taking into account all the uses to which the convent is put, I have no doubt that the preponderance of those uses is in connection with the running of the school. But equally I have no doubt that there is a residual area of use which is not for the purpose of the provision of education in the school. However devoted the nuns may be to their school duties, they must take time off to eat and sleep, to take recreation, to pray, to engage in the spiritual exercises required by the rules of the Order, and to take part in activities which are part of the conventual, rather than the educational, side of their lives. During such times, although they may sometimes be interrupted by chores in connection with the school, in my view it could not be said that the convent is being used exclusively for the provision of public education in the school. In fact, there must be times when the convent is not being used at all for the purpose of the provision of public education in the school. For example, on Sundays, apart from the fact that presumably one of the Sisters looks after the school library between 12.30 and 2 p.m., the nuns do not seem to have any duties in connection with the school. One assumes from the rules of the Order that the nuns go into spiritual retreat when the school is closed for holidays. It is unlikely that during such times the convent is used for any school purposes. And there must be other times during the holidays when the nuns in the convent put their school duties out of their minds as gladly and successfully as, no doubt, their pupils do.
I feel that many of the reasons advanced in support of the exemption of the convent in this case could have been given in support of the claim for the exemption of the national teacher’s residence in Heron v. Monaghen .48 The teacher in that case in all probability did schoolwork, saw parents etc., in his residence, but the court held that the house was his residence and that, therefore, it was not exempt. In the present case, although the convent is used extensively for the purpose of providing education in the school, it remains the nuns’ place of residence and I must hold on the facts that it is not used exclusively for the provision of public education in the school. The nuns derive a direct private benefit from their occupation, as did the Christian Brothers in M’Kenna v. Commissioner of Valuation 49 and the Franciscan Friars in Doré v. Commissioner of Valuation .50 In my view, the case of the community in the present case is weaker than that of the parish priest in Commissioner of Valuation v. O’Connell .51 He was bound by the terms of a charitable trust to reside in the presbytery in question, and his office required him to be available at any hour of the day or night to minister to the spiritual needs of his parishioners. Yet it was held that the hereditament was not used exclusively for charitable purposes. Even if I were to hold that O’Connell’s Case 52 was wrongly decided, it would not avail the appellant in this case because the private use of the convent by the community prevents me from saying that it is “dedicated to or used for public purposes” without “any private profit or use . . . directly derived therefrom” (s. 63 of the Act of 1838).
My decision that the convent is not exempt accords with all the cases that I have cited with the exception of Maguire v. Newry Guardians 53 and Hoope v. Griffith 54, but I consider that these two cases were decided on the authority of English case-law and on the basis of principles of exemption that are essentially different from those contained in the Irish statutes.
The second ground on which it is alleged that the convent is exempt is that it is used exclusively for charitable purposes, namely, the advancement of religion. Regardless of whether the facts are such as to justify a finding that the convent is used exclusively for the advancement of religion, this ground fails for the reason that it has been held by the Supreme Court in McGahan and Ryan v. Commissioner of Valuation 55 (as interpreted in Elliott v. Commissioner of Valuation 56 and Maynooth College v.Commissioner of Valuation 57) that user for the advancement of religion is not a charitable purpose within the meaning of the proviso to s. 63 of the Act of 1838. I might add that even if it were open to me to consider user for the advancement of religion as a ground of exemption, I would not be prepared to hold on the facts as I have recited them that the convent is used exclusivelyfor the advancement of religion, as is required for exemption by the second proviso to s. 63 of the Act of 1838, for the facts show that the user is partly for the purpose of the provision of public education in the school and partly for the conventual purposes of a community of the Sisters of Mercy. The fact that the appellant has relied on the facts to justify exemption on the ground of user for the purpose of the provision of public education as well as the advancement of religion shows the weakness of the case for exemption on the ground of exclusive use for either of those purposes.
Finally, as to the oratory. It is submitted that it is not rateable as coming within the exemption for any “church, chapel, or other building exclusively dedicated to religious worship” contained in the second proviso to s. 63 of the Act of 1838. However, the proviso stipulates that this exemption does not apply to such building “where any private profit or use shall be directly derived therefrom.” In the present case, the oratory is used primarily by the nuns of the community; it is used occasionally as a matter of leave or licence by the pupils of the school or by members of the public. It is essentially the nuns’ private oratory, and for the most part it is used only as such. The nuns derive a direct private use from it which, under the second proviso to s. 63 of the Act of 1838, is destructive of this exemption. In my opinion, the oratory is clearly liable to valuation for rates.
My conclusion that both the convent and the oratory are liable to be valued for rates is based on the opinion of the Supreme Court in McGahan and Ryan v. Commissioner of Valuation 58 and Barrington’s Hospital v. Commissioner of Valuation 59 that exemption is to be ascertained from the language of the proviso to s. 63 of the Act of 1838. But my conclusion would still be the same if I were free to follow the opinion of the House of Lords in Governors of Campbell College Belfast v. Commissioner of Valuation for Northern Ireland 60 that exemption is to be looked for in s. 2 of the Valuation (Ireland) Act, 1854. Section 6 of the latter Act says that it and the Valuation (Ireland) Act, 1852, are to be construed together as one Act. One would therefore have to apply the provisions of s. 16 of the Act of 1852 to the facts of this case, and since neither the convent nor the oratory is “altogether of a public nature, or used exclusively for such charitable . . . purposes . . .”the claim for exemption would equally fail. In my judgment, the learned Circuit Court judge reached the correct conclusion. Accordingly, I dismiss this appeal.
UK Cases
Attorney-General of the Bahamas v Royal Trust Co.
(1986) 3 All ER 323
LORD OLIVER OF AYLMERTON: Thus the sole question on this appeal is one of the true construction of para (t) and it is common ground between the parties that if the trusts declared in this paragraph were trusts solely for the ‘welfare’ of Bahamian children and young persons they would not, as the author ities stand, be valid charitable trusts. It follows that if, as both Blake CJ and the Court of Appeal held, the words ‘education and welfare’ in the paragraph are to be construed disjunctively (ie as embracing two distinct purposes) this appeal must necessarily fail, since the fund will then be capable of being applied in perpetuity to purposes some of which may be non-charitable.It is, however, the contention of coun sel for the Attorney General that, reading the will and codicils as a whole, the true construction of the paragraph is one which involves reading the word ‘and’ in its conjunctive sense, that is to say, that the only purposes for which the trust moneys are authorised to be disbursed by the paragraph are pur poses which are not merely for the welfare of Bahamian children and young persons but are also edu cational. To put it another way the word ‘education’ limits the word ·welfare’ and there is only one overall purpose of the trust and that is the purpose of educational welfare.
In approaching the question it is helpful to bear in mind the analysis of Sargant J in Re Eades, Eades v Eades [1920] 2 Ch 353. He was there concerned to decide whether a gift for ‘religious, charitable and philanthropic objects’ constituted a good charitable bequest. In the course of his judgment, after
observing that there were only two possible constructions (that is to say, either that the objects must possess all three characteristics or that there were three distinct, but possibly overlapping, character istics the possession of any one of which would qualify an object for selection as a proper object of the trusts) he observed (at 356):
Such a construction as the second is sometimes referred to as a disjunctive construction, and as involving the change of the word ‘and’ into ‘or’. This is a short and compendious way of expressing the result of the construction, but I doubt whether it indicates accurately the mental conception by which the result is reached. That conception is one, I think, which regards the word ‘and’ as used conjunctively and by way of addition, for the purpose of enlarging the num ber of objects within the area of selection; and it does not appear to be a false mental concep tion, or one really at variance with the ordinary use of language, merely because it involves in the result that the qualifications for selection are alternative or disjunctive. Further, the greater the number of the qualifications or characteristics enumerated, the more probable, as it seems to me, is a construction which regards them as multiplying the kind or classes of objects within the area of selection, rather than as multiplying the number of qualifications to be complied with, and so diminishing the objects within the area of selection.
It would be a work of supererogation to rehearse yet again the numerous reported decisions in which testators have used somewhat similar, although not identical, expressions. They have been fully and helpfully reviewed in the judgment of Blake CJ and in the judgments in the Court of Appeal and have been drawn to their Lordships’ attention by counsel for the Attorney General in the course of his able argument. In the end, however, the question is one of the construction of the particular dispositions of this testator and references to the construction placed on different expressions in the wills of other tes tators, whilst perhaps useful as guidelines, are necessarily of limited assistance.
It is true that in the instant case there are two, and only two objects, specified, so that, to that extent, it is the easier to adopt the conjunctive construction for which counsel for the Attorney General con tends. But there are a number of formidable difficulties about this, and not least that it is not easy to imagine a purpose connected with the education of a child which is not also a purpose for the child’s welfare. Thus if ‘welfare’ is to be given any separate meaning at all it must be something different from and wider than mere education, for otherwise the word becomes otiose. Counsel has sought to meet this by the submission that, in the context of the paragraph as a whole, ‘welfare’ is used in the sense of ‘welfare ancillary to education’. But ‘welfare’ is a word of the widest import and when used in connec tion with a class of ‘children and young people’ generally is capable of embracing almost anything which would lead to the enhancement of the quality of life of any member of the class. Counsel’s diffi culty then is to find any context, either in the paragraph itself or in other parts of the will, for subor dinating this wide concept to the object of education. Despite the helpful argument of counsel for the Attorney General, their Lordships have been unable to discern any context from which the inference of subordination can be drawn and that difficulty would remain even if the trustees had been directed sim ply to apply the income for ‘education and welfare’. The difficulty is, however, compounded by the add itional and not unimportant words ‘for any purposes for and/or connected with’, for, if counsel were otherwise able to link the word ‘welfare’ with the preceding word ‘education’ in a conjunctive sense, it would then be impossible to find a purpose which was connected with ‘welfare’ (used in this ancillary sense) which was not also ‘connected with’ education, so that the reference to ‘welfare’ would again become otiose.
The point is not one which is susceptible of a great deal of elaboration and their Lordships need say no more than that they agree with Blake CJ and the Court of Appeal that the phrase ‘education and welfare’ in this will inevitably falls to be construed disjunctively. It follows that, for the reasons which were fully explored in the judgments in the courts below, and as is now conceded on the footing of a disjunctive construction, the trusts in para (t) do not constitute valid charitable trusts and that, accord ingly, the residue of the trust estate falls into the residuary gift in cl 16 of the will.
National Anti-Vivisection Society v Inland Revenue Commissioners
[1948] AC 31
LORD SIMONDS (on the question whether the object to be obtained was political): My lords, if I may deal with this second reason first, I cannot agree that in this case an alteration in the law is merely ancillary to the attainment of a good charitable object. In a sense no doubt, since legislation is not an end in itself, every law may be regarded as ancillary to the object which its provisions are intended to achieve. But that is not the sense in which it is said that a society has a political object. Here, the finding of the Commissioners is itself conclusive. ‘We are satisfied’, they say, ‘that the main object of the society is the total abolition of vivisection … and (for that purpose) the repeal of the Cruelty to Animals Act 1876 [now replaced by the Animals (Scientific Procedures) Act 1986]. and the substitution of a new enact ment prohibiting vivisection altogether.’ This is a finding that the main purpose of the society is the compulsory abolition of vivisection by Act of Parliament. What else can it mean? And how else can it be supposed that vivisection is to be abolished? Abolition and suppression are words that connote some form of compulsion. It can only be by Act of Parliament that that element can be supplied …
Lord Parker uses slightly different language but means the same thing when he says that the court has no means of judging whether a proposed change in the law will or will not be for the public benefit. It is not for the court to judge and the court has no means of judging. The same question may be looked at from a slightly different angle. One of the tests, and a crucial test, whether a trust is charitable, lies in the competence of the court to control and reform it. I would remind your lordships that it is the King as parens patriae who is the guardian of charity and that it is the right and duty of his Attorney-General to intervene and inform the court, if the trustees of a charitable trust fall short of their duty. So too it is his duty to assist the court, if need be, in the formulation of a scheme for the execution of a1’charitable trust. But, my lords, is it for a moment to be supposed that it is the function of the Attorney-General on behalf of the Crown to intervene and demand that a trust shall be established and administered by the court, the object of which is to alter the law in a manner highly prejudicial, as he and His Majesty’s government may think, to the welfare of the State7 … I conclude upon this part of the case that a main object of the society is political and for that reason the society is not established for charitable purposes only.
[His lordship continued on the question of benefit:] It is to me a strange and bewildering idea that the court must look so far and no farther, must seeacharitable purpose in the intention of the society tobene fit animals and thus elevate the moral character of men but must shut its eyes to the injurious results to the whole human and animal creation. I will readily concede that, if the purpose is within one of the heads of charity forming the first three classes in the classification which Lord Macnaughten borrowed from Sir Samuel Romilly’s argument in Morice v Bishop of Durham (1805) 10Ves 522,531, the court will easily conclude that it is a charitable purpose. But even here to give the purpose the name of ‘religious’ or ‘education’ is not to conclude the matter. It may yet not be charitable, if the religious purpose is ille gal or the educational purpose is contrary to public policy. Still there remains the overriding question: Is it pro bona publico ? It would be another strange misreading of Lord Macnaughten’s speech in [Commissioners for Special Purposes of Income Tax v Pemse/ ] [1891] AC 531 … to suggest that he intended anything to the contrary. I would rather say that, 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 further that the court will not be astute in sucha case to defeat on doubtful evidence the avowed benevolent intention of a donor. But, my lords,the next step is one that I cannot take. Where on the evidence before it the court concludes that, however well-intentioned the donor, the achievement of his object will be greatly to the public disadvantage, there can be no justification for saying that it is a charitable object. If and so far as there is any judicial decision to the contrary, it must, in my opinion, be regarded as inconsistent with principle and be overruled.
McGovern v Attorney-General
[1982] Ch 321,
SLADE J:I now turn to consider the status of a trust of which a main object is to secure the alteration of the laws of a foreign country. The mere fact that the trust was intended to be carried out abroad would not be itself necessarily deprive it of charitable status. A number of trusts to be executed outside this country have been upheld as charities, though the judgment of Evershed MR in Camille and Henry Dreyfus Foundation Inc. v /RC [1954] Ch 672 at 684-5 illustrates that certain types of trust, for example trusts for the setting out of soldiers or the repair of bridges or causeways, might be acceptable as char ities only if they were to be executed in the United Kingdom. The point with which I am at present con cerned is whether a trust of which a direct and main object is to secure a change in the laws of a foreign country can ever be regarded as charitable under English law. Though I do not think that any authority cited to me precisely covers the point, I have come to the clear conclusion that it cannot.
I accept that the dangers of the court encroaching on the functions of the legislature or of subjecting its political impartiality to question would not be nearly so great as when similar trusts are to be exe cuted in this country. I also accept that on occasions the court will examine and express an opinion on the quality of a foreign law. Thus, for example, it has declined to enforce or recognise rights conferred or duties imposed by a foreign law, in certain cases where it has considered that, onthe particular facts, enforcement or recognition would be contrary to justice or morality. I therefore accept the particular point made by Mr Tyssen (about the law stultifying itselO has no application in this context. There is no obligation on the court to decide on the principle that any foreign law is ex hypothesi right as it stands; it is not obliged for all purposes to blind itself to what it may regard as the injustice of a particular foreign law.
In my judgment, however, there remain overwhelming reasons why such a trust still cannot be regarded as charitable. All the reasoning of Lord Parker in Bowman vSecular Society Ltd [1917] AC 406 seems to me to apply a fortiori in such a case.A fortiori the court will have no adequate means of judg ing whether a proposed change in the law of a foreign country will or will not be for the public benefit. Evershed MR in Camille and Henry Dreyfus Foundation Inc. v /RC [1954] Ch 672 at 684 expressed the prima facie view that the community which has to be considered in this context, even in the case of a trust to be executed abroad, is the community of the United Kingdom. Assuming that this is the right test, the court in applying it would still be bound to take account of the probable effects of attempts to procure the proposed legislation, or of its actual enactment, on the inhabitants of the country con cerned, which would doubtless have a history and social structure quite different from that of the United Kingdom. Whatever might be its view as to the content of the relevant law from the standpoint of an English lawyer, it would, I think, have no satisfactory means of judging such probable effects on the local community.
Furthermore, before ascribing charitable status to an English trust of which a main object was to secure the alteration of a foreign law, the court would also, I conceive be bound to consider the conse quences for this country as a matter of public policy. In a number of such cases there would arise a sub stantial prima facie risk that such a trust, if enforced, could prejudice the relations of this country with the foreign country concerned … The court would have no satisfactory means of assessing the extent of such risk, which would not be capable of being readily dealt with by evidence and would be a matter more for political than for legal judgment. For all these reasons, I conclude that a trust of which a main purpose is to procure a change in the laws of a foreign country is a trust for the attainment of political objectives within the spirit of Lord Parker’s pronouncement and, as such, is non-charitable.
Thus far, I have been considering trusts of which a main purpose is to achieve changes in the law itself or which are of a party political nature. Under any legal system, however, the government and its various authorities, administrative and judicial, will have wide discretionary powers vested in them, within the framework of the existing law. If a principal purpose of a trust is to procure a reversal of gov ernment policy or of particular administrative decisions of governmental authorities, does it constitute a trust for political purposes falling within the spirit of Lord Parker’s pronouncement? In my judgment it does. If a trust of this nature is to be executed in England, the court will ordinarily have no sufficient means of determining whether the desired reversal would be beneficial to the public, and in any event could not properly encroach on the functions of the executive, acting intra vires, by holding that it should be acting in some other manner. If it is a trust which is to be executed abroad, the court will not have sufficient means of satisfactorily judging, as a matter of evidence, whether the proposed reversal would be beneficial to the community in the relevant sense, after all its consequences, local and inter national, had been taken into account.
Re Koeppler’s WT, Barclays Bank Trust Co. pie v Slack
(1986] Ch 423, (1985] 2 All ER 869, Court of Appeal
SLADE LJ: The organisation and conduct of the conferences which had been held since 1950 at Wiston House were clearly the central features of the Wilton Park project. The ‘specific aspects’ dealt with at each conference covered a wide range of topics. Examples of these specific aspects are to be found in the programmes for the four conferences immediately preceding the date of the testator’s will and those for the four conferences immediately preceding his death. They were as follows:
(1) An enquiry into the ‘quality of life’; ecology and the environment; participation in government and industry; tensions in free societies; (2) Europe and the emergent pattern of superpower relationships; (3) the unification of Europe; a balance sheet; (4) the requirements of Western defence and the possibilities of arms control; (5) the European Community and its external rela tions; (6) the media, public opinion and the decision-makingprocess in government; (7) security issues as a factor in domestic and international politics; (8) labour and capital and the future of industrial society.
As the judge observed, those specific themes are self-evidently matters on which persons of differing political persuasions might have differing views and some of the speakers invited to speak at plenary sessions of the conferences were politicians. However, he found that ‘it is clear that Wilton Park has taken pains to avoid inculcating any particular political viewpoint’ (see (1984] Ch 243 at 251). There is therefore no question of the Wilton Park conferences being intended to further the interests of a par ticular political party..
There are two particular points which have caused me to hesitate before finally concluding that this gift is of a charitable nature. First, I have already mentioned the wide range of topics which are discussed at Wilton Park conferences, some of which could be said to have a political flavour. We were referred to a decision of my own in McGovern v Attorney-Genera/ [1982] Ch 321 [above], where I held, inter alia, that though certain trusts, declared in a trust deed, for research into the observance of human rights and the dissemination of the results of such research would have been charitable if they had stood alone, they failed because, read in their context, they were merely adjuncts to the political purposes declared by the earlier provisions of the deed.
However, in the present case, as I have already mentioned, the activities of Wilton Park are not of a party political nature. Nor, so far as the evidence shows, are they designed to procure changes in the laws or governmental policy of this or any other country: even when they touch on political matters, they constitute, so far as I can see, no more than genuine attempts in an objective manner to ascertain and disseminate the truth. In these circumstances I think that no objections to the trust arise on a polit ical score, similar to those which arose in the McGovern case. The trust is, in my opinion, entitled to what is sometimes called a ‘benignant construction’,in the sense that the court is entitled to presume that the trustees will only act in a lawful and proper manner appropriate to the trustees of a charity and not, for example, by the propagation of tendentious political opinions, any more than those running the Wilton Park project so acted in the 33 years predating the testator’s death: compare McGovern v Attorney-Genera/[1982] Ch 321 at 353.
Webb v O’Doherty and others
The Times, 11 February 1991, Chancery Division
HOFFMANN J: This is a motion for an interlocutory injunction to restrain the Anglia Student Union (Cambridge) from expending money in support of a campaign against the Gulf War and from affiliating to national and local organisations carrying on such a campaign. The Student Union is an educational charity. Its purposes are wholly charitable and its funds can be devoted to charitable purposes only. Charitable educational purposes undoubtedly include discussion of political issues. As Scott J said in A-Gv Ross [1986] 1 WLR 252 at page 263, ‘there is nothing the matter with an educational charity in the furtherance of its educational purposes encouraging students to develop their political awareness or to acquire knowledge of and to debate and to form views on political issues.’
There is, however, a clear distinction between the discussion of political matters, or the acquisition of information which may have a political content, and a campaign on a political issue. There is no doubt that campaigning, in the sense of seeking to influence public opinion on political matters, is not a charitable activity. It is, of course, something which students are, like the rest of the population, perfectly at liberty to do in their private capacities, but it is not a proper object of the expenditure of charitable money.
There are some cases in which it is not altogether easy to distinguish between political discussion carried on for educational purposes and political campaigning. The Amnesty International case (McGovern v A-G [1982] Ch 321) provides illustration of how difficult that distinction may sometimes be. Campaigning against disregard of human rights by foreign governments or our own is not charitable, but research into the observance of human rights may well be, even though an incidental effect of the publication of the research is to provide material for people campaigning against human rights abuses. The law will only permit charitable money to be spent on what might be regarded as political persua sion if that is a mere incidental effect of expenditure for proper charitable educational purposes.
In this case the Student Union passed a resolution on the 22nd of January, 1991 which began by expressing various views about the Gulf War and the situation in the Middle East and then mandated the executive in the following terms: ‘1. To affiliate to the National Student Committee to Stop the War in the Gulf and the Cambridge Committee to stop the War in the Gulf. 2. To campaign on the above issues. 3. To support and publicise national and local demonstrations, speaker meetings and non violent direct actions organised by CND and Committee To Stop War in the Gulf. 4. To support the teach in on the Gulf Crisis organised by the Student Committee To Stop Warthis Thursday. 5. To allocate £100 from the Campaign budget to the anti-Gulf War campaign. 6.To write to the Prime Minister and Ministry of Defence outlining this policy.’ All those aims are, as I have said, perfectly legitimate aims for citizens of this country to espouse, but I have absolutely no doubt that there is no way in which they can be described as ‘charitable’. The whole thrust of the resolutions is to commit the Union and the expend iture of the Union’s money to what is no doubt perfectly accurately described as a ‘campaign against the War in the Gulf.’ So far from that being an education purpose with incidental political effects, it seems to me that any educational effect which it may have (and I do not dispute that it may) is inciden tal to the main purpose of attempting to influence public opinion.
Mr O’Doherty, who is the President of the Union, has sworn an affidavit in which he says that he
undertakes to seek advice as to how the £100 authorised by the resolution should be spent so as to ensure that it is not spent on non-charitable purposes. It seems to me, however, that at present there is nothing within the mandate which has been given to him which could be described as a charitable purpose, and consequently the seeking of advice on this point would be superfluous.If the Union were minded to authorise activities of an exclusively educational character but which nonetheless related to the War in the Gulf, the position might be different, but that would in my judgment require the passing of a wholly different resolution and would give rise to questions which obviously cannot be considered today.
A separate aspect of the application is the question of whether the Union should affiliate to the two organisations, one national and one in Cambridge, which are mentioned in the resolution. Affiliation involves a contribution to the funds of these organisations in a fairly modest amount and an indication of general support for their objectives. The fact that a body to which the Union affiliates is not itself formed for charitable purposes is not necessarily an objection to the affiliation. As Mr Justice Scott said in A-G v Ross, there is no reason why a charitable student organisation should not affiliate to a non-char itable organisation if that enables it to further its own charitable activities for the benefit of students. That is the basis upon which the union is entitled to affiliate to the National Union of Students, a non charitable organisation, and no doubt to other non-charitable organisations as well. It is, however, essential for this purpose that the purpose of the affiliation should be to benefit the student body in their capacity as students. What is not permitted is to affiliate to a wholly non-charitable organisation simply as a way of furthering anon-charitablepurpose or of channelling funds into non-charitable activ ities. It is said here that one of the effects of affiliation to these two organisations is that the Union will receive materials of educational value.I am bound to say that no particulars are given in the evidence as to what such materials may be, and the only literature which has so far been exhibited is a hand bill summoning students to a demonstration in London. On the face of it, these two organisations are of a wholly political and non-charitable character and there is no evidence before me which could provide an educational ground for the affiliation of the student union. For those reasons, it appears to me that not only do the plaintiffs have the necessary arguable case, but there is not a seriously arguable case for the respondents. The injunction must go.
Joseph Rowntree Memorial Trust Housing Association Ltd v Attorney-General
[1983] 1 Ch 159
PETER GIBSON J: The views of the Charity Commissioners on schemes such as these were set out in paras. 102 to 108 of the Charity Commissioners’ report for 1980 (HC Paper (1979-80) no. 608) I
hope I summarise the objections of the Charity Commissioners fairly as being the following: (1) the schemes provide for the aged only by way of bargain on a contractual basis rather than by way of bounty; (2) the benefits provided are not capable of being withdrawn at any time if the beneficiary sub sequently ceases to qualify; (3) the schemes are for the benefit of private individuals, not for a charit able class; (4) the schemes are a commercial enterprise capable of producing profit for the beneficiary. Before I deal with these objections it is appropriate to consider the scope of the charitable purpose which the plaintiffs claim the scheme carries out, that is to say in the words of the preamble to the Statute of Elizabeth (43 Eliz I c 4, the Charitable Uses Act 1601) ‘the relief of aged persons’. That purpose is indeed part of the very first set of charitable purposes contained in the preamble: ‘the relief of aged, impotent and poor people.’ Looking at those words without going to authority and attempting to give them their natural meaning, I would have thought that two inferences therefrom were tolerably clear. First, the words ‘aged, impotent and poor’ must be read disjunctively. It would be as absurd to require that the aged must be impotent or poor as it would be to require the impotent to be aged or poor, or the poor to be aged or impotent. There will no doubt be many cases where the objects of charity prove to have two or more of the three qualities at the same time. Second, essential to the charitable purpose is that it should relieve aged, impotent and poor people. The word ‘relief’ implies that the persons in question have a need attributable to their condition as aged, impotent or poor persons which requires alleviating, and which those persons could not alleviate, or would find difficulty in alleviating, them
selves from their own resources. The word ‘relief’ is not synonymous with ‘benefit’. Those inferences are in substance what both counsel submit are the true principles governing the charitable purpose of the relief of aged persons. Counsel for the plaintiffs stresses that any benefit pro vided must be related to the needs of the aged. Thus a gift of money to the aged millionaires of Mayfair would not relieve a need of theirs as aged persons. Counsel for the Attorney General similarly empha sises that to relieve a need of the aged attributable to their age would be charitable only if the means employed are appropriate to the need. He also points out that an element of public benefit must be found if the purpose is to be charitable. I turn then to authority to see if there is anything that compels a different conclusion.
[Peter Gibson J reviewed the authorities and continued:}
These authorities convincingly confirm the correctness of the proposition that the relief of the aged does not have to be relief for the aged poor. In other words the phrase ‘aged, impotent and poor people’ in the preamble must be read disjunctively. The decisions in Re Glyn’s Will Trusts [[1950} 2 All ER 1150n], Re Bradbury [11950] 2 All ER 1150}. Re Robinson [11951) Ch 198}. Re Cottam’s Will Trusts [11955) 1 WLR 1299] and Re Lewis ((1955] Ch 106] give support to the view that it is a sufficient charitable pur pose to benefit the aged, or the impotent, without more. But these are all decisions at first instance and with great respect to the judges who decided them they appear to me to pay no regard to the word ‘relief’. I have no hesitation in preferring the approach adopted in Re Neal and Le eras v Perpetual Trustee Co. Ltd that there must be a need which is to be relieved by the charitable gift, such need being attributable to the aged or impotent condition of the person to be benefited. My attention was drawn to Picarda The Law and Practice Relating to Charities (1977) p. 79, where a similar approach is adopted by the learned author.
In any event in the present case, as I have indicated, the plaintiffs do not submit that the proposed schemes are charitable simply because they are for the benefit of the aged. The plaintiffs have identi fied a particular need for special housing to be provided for the elderly in the ways proposed and it seems to me that on any view of the matter that is a charitable purpose, unless the fundamental objec tions of the charity commissioners to which I have referred are correct. To these I now turn.
The first objection is, as I have stated, that the scheme makes provision for the aged on a contractual basis as a bargain rather than by way of bounty. This objection is sometimes expressed in the form that relief is charitable only where it is given by way of bounty and not by way of bargain (see 5 Halsbury’s Laws (4th edn) para. 516). But as the learned editors recognise this does not mean that a gift cannot be charitable if it provides for the beneficiaries to contribute to the cost of the benefits they receive. There are numerous cases where beneficiaries only receive benefits from a charity by way of bargain. Re Cottam and Le eras v Perpetual Trustee Co. Ltd provide examples. Another class of cases relates to fee-paying schools (see for example The Abbey, Malvern Wells Ltd v Minister of Town and Country Planning [1951] 2 All ER 154, [1951] Ch 728). Another example relates to a gift for the provision of homes of rest for lady teachers at a rent (ReEst/in, Prichard v Thomas (1903) 72 U Ch 687). It is of course crucial in all these cases that the services provided by the gift are not provided for the private profit of the individuals providing the services.
The source of the statement that charity must be provided by way of bounty and not bargain is to be found in some remarks of Rowlatt J in /RC v Society for the Relief of Widows and Orphans of Medical Men (1926) 136 LT 60 at 65. This was a case relating to the statutory provisions allowing tax relief for income applicable to charitable purposes only of trusts or bodies established for charitable purposes only. Rowlatt J said:
It seems to me that when it is said that the relief of poverty is a charity within the meaning of the rule which we are discussing that does mean the relief of poverty by way of bounty; it does not mean the relief of poverty by way of bargain. A purely mutual society among very poor people whose dependants would quite clearly always be very poor would not, I think, be a charity: it would be a business arrangement, as has been said in one of the cases, whereby contractual benefits accrued to people whose poverty makes them very much in need of them. That would not be a charity. I think, therefore, that the crux of this case is whether this is a case of that sort.
He went on to hold that the case before him was not that of a mutual society: the beneficiaries had no right to anything.In my judgment Rowlatt J’s remarks must be understood in their limited context. They are entirely
appropriate in determining whether a mutual society conferring rights on members is charitable. If a housing association were a co-operative under which the persons requiring the dwellings provided by the housing association had by that association’s constitution contractual rights to the dwellings, that would no doubt not be charitable, but that is quite different from bodies set up like the trust and the association. The applicants for dwellings under the schemes which I am considering would have no right to any dwelling when they apply. The fact that the benefit given to them is in the form of a contract is immaterial to the charitable purpose in making the benefit available. I see nothing in this objection of the charity commissioners.
The second objection was that the schemes do not satisfy the requirement that the benefits they provide must be capable of being withdrawn at any time if the beneficiary ceases to qualify. No doubt charities will, so far as practical and compatible with the identified need which they seek to alleviate, try to secure that their housing stock becomes available if the circumstances of the persons occupying the premises change. But it does not seem to me to be an essential part of the charitable purpose to secure that this should always be so. The nature of some benefits may be such that it will endure for some time, if benefits in that form are required to meet the particular need that has been identified. Thus, in Re Monk, Giffen v Wedd [1927] All ER Rep 157 a testatrix set up a loan fund whereby loans for up to nine years were to be made available to the poor. This was held to be charitable. No doubt the circum stances of the borrower might change whilst the loan was outstanding. If the grant of a long-term lease hold interest with the concomitant security of tenure that such an interest would give to the elderly is necessary to meet the identified needs of the elderly, then in my judgment that is no objection to such a grant. The plaintiffs have put in evidence that they oppose the inclusion in a lease of any provision entitling the plaintiffs to determine the lease in the event of a change in financial circumstances of the tenant. Their main reason, which to my mind is a cogent one, is the unsettling effect it could have on aged tenants. In any event the distinction between what prima facie is a short-term letting and a long lease has been rendered somewhat illusory by statute. A charity may find it no less difficult to recover possession from weekly tenants whose circumstances have changed than it would to recover posses sion from a tenant under a long lease.
The third objection was that the schemes were for the benefit of private individuals and not for a charitable class. I cannot accept that. The schemes are for the benefit of a charitable class, that is to say the aged having certain needs requiring relief therefrom. The fact that, once the association and the trust have selected individuals to benefit from the housing, those individuals are identified private indi viduals does not seem to me to make the purpose in providing the housing a non-charitable one any more than a trust for the relief of poverty ceases to be a charitable purpose when individual poor recipi ents of bounty are selected.
The fourth objection was that the schemes were a commercial enterprise capable of producing a profit for the beneficiary. I have already discussed the cases which show that the charging of an eco nomic consideration for a charitable service that is provided does not make the purpose in providing the service non-charitable, provided of course that no profits accrue to the provider of the service. It is true that a tenant under the schemes may recover more than he or she has put in, but that is at most incidental to the charitable purpose. It is not a primary objective. The profit (if it be right to call the increased value of the equity a profit as distinct from a mere increase avoiding the effects of inflation, as was intended) is not a profit at the expense of the charity, and indeed it might be thought improper, if there be a profit, that it should accrue to the charity which has provided no capital and not to the ten ant which has provided most if not all the capital. Again, I cannot see that this objection defeats the charitable character of the schemes.
I turn then to a consideration of the schemes themselves ..
Re Niyazi’s WT
[1978] 1 WLR 910, [1978] 3 All ER 785
MEGARRY V-C: Certain points seem reasonably plain.First, ‘poverty’ is not confined to destitution, but extends to those who have small means and so have to ‘go short’. Second, a gift which in terms is not confined to the relief of poverty may by inferencebe thus confined. InRe Lucas [1922] 2 Ch 52 there was a gift of 5s per week to the oldest respectable inhabitants of a village. As the law then stood, Russell J was unable to hold that a gift merely to the aged was charitable; but he held that the limitation to 5s a week indicated quite clearly that only those to whom such a sum would be of importance and a bene fit were to take, and so the gift was charitable as being for the relief of poverty. I do not think that it can be said that nothing save the smallness of the benefit can restrict an otherwise unrestricted benefit so as to confine it within the bounds of charity. I think that anything in the terms of the gift which by impli cation prevents it from going outside those bounds will suffice. In Re Glyn’s Will Trusts [1950] 2 All ER 1150 Danckwerts J held that a trust for building free cottages for old women of the working classes aged 60 or more provided a sufficient context to show an intention to benefit indigent persons, and so was charitable.
Thus far, I do not think that there is any serious difference between counsel for the Attorney-General and counsel for the Greek mayor on the one hand and counsel for the next-of-kin on the other. The main dispute is whether in this case there is enough in the words and their context to confine the gift to the relief of poverty. Not surprisingly, counsel for the next-of-kin strongly relied on Re Sanders’ Will Trusts [1954] Ch 265. There the trust was to provide ‘dwellings for the working classes and their families’ liv ing within five miles of Pembroke Dock. Harman J rejected the contention that this was a charitable gift, since ‘workingclasses’ was not a phrase which connoted poverty, and there was nothing about old age which might indicate those who had ceased to work. An appeal from this decision was compromised [1954] The Times, 22nd July …
As the arguments finally emerged, counsel for the Attorney-General’s main contention was that, even if neither ‘working men’ nor ‘hostel’, by itself, could be said to confine the trust to what in law was charity, the use of these expressions in conjunction sufficed for his purpose. They were enough to dis tinguish Re Sanders’ Will Trusts, especially as Harman J had not had the advantage which I have had of being able to consider what had been said in the Guinness case [Guinness Trust (London Fund) founded 1890, registered 1902 v Green [1955] 1 WLR 872]. I think that the adjectival expression ‘working mens’ plainly has some flavour of ‘lower income’ about it, just as ‘upper class’ has some flavour of affluence, and ‘middle class’ some flavour of comfortable means. Of course there are impoverished members of the ‘upper’ and ‘middle’ classes, just as there are some ‘working men’ who are at least of comfortable means, if not affluence: one cannot ignore the impact of such things as football pools. But in constru ing a will I think that I am concerned with the ordinary or general import of words rather than excep tional cases; and, whatever may be the future meaning of ‘working men’ or ‘working class’, I think that by 1967 such phrases had not lost their general connotation of ‘lower income’.I may add that nobody has suggested that any difficulty arose from the use of ‘working men’ as distinct from ‘working persons’ or ‘working women’.
The connotation of ‘lower income’ is, I think, emphasised by the word ‘hostel’.No doubt there are a number of hostels of superior quality; and one day, perhaps, I may even encounter the expression ‘lux ury hostel’. But without any such laudatory adjective the word ‘hostel’ has to my mind a strong flavour of a building which provides somewhat modest accommodation for those who have some temporary need for it and are willing to accept accommodation of that standard in order to meet the need. When ‘hostel’ is prefixed by the expression ‘working mens’, then the further restriction is introduced of the hostel being intended for those with a relatively low income who work for their living, especially as man ual workers. The need, in other words, is to be the need of working men, and not of students or bat tered wives or anything else. Furthermore, the need will not be the need of the better paid working men who can afford something superior to mere hostel accommodation,but the need of the lower end of the financial scale of working men, who cannot compete for the better accommodation but have to content themselves with the economies and shortcomings of hostel life. It seems to me that the word ‘hostel’ in this case is significantly different from the word ‘dwellings’ in Re Sanders’ Will Trusts, a word which is appropriate to ordinary houses in which the well-to-do may live, as well as the relatively poor. Has the expression ‘working mens hostel’ a sufficient connotation of poverty in it to satify the requirements of charity? On any footing the case is desperately near the borderline, and I have hesi tated in reaching my conclusion. On the whole, however, for the reasons that I have been discussing,I think that the trust is charitable, though by no great margin. This view is inmy judgment supported by two further considerations. First, there is the amount of the trust fund, which in 1969 was a little under
£15,000. I think one is entitled to assume that a testator has at least some idea of the probable value of his estate. The money is given for the purpose ‘of the construction of or as a contribution towards the cost of the construction of a working mens hostel’. £15,000 will not go very far in such a project, and it seems improbable that contributions from other sources towards constructing a ‘working mens hos tel’ would enable or encourage the construction of any grandiose building. If financial constraints point towards the erection of what may be called an ‘economy hostel’, decent but catering for only the more basic requirements, then only the relatively poor would be likely to be occupants. There is at least some analogy here to the Ss per week in Re Lucas [1922] 2 Ch 52. Whether the trust is to give a weekly sum that is small enough to indicate that only those in straitened circumstances are to benefit, or whether it is to give a capital sum for the construction of a building which will be of such a nature that it is likely to accommodate only those who are in straitened circumstances, there will in each case be an implied restriction to poverty.
The other consideration is that of the state of housing in Famagusta. Where the trust is to erect a
building in a particular area, I think that it is legitimate, in construing the trust, to erect some regard to the physical condition existing in that area. Quite apart from any question of the size of the gift, I think that a trust to erect a hostel in a slum or in an area of acute housing need may have to be construed dif ferently from a trust to erect a hostel in an area of housing affluence or plenty. Where there is a grave housing shortage, it is plain that the poor are likely to suffer more than the prosperous, and that the pro vision of a ‘working mens hostel’ is likely to help the poor and not the rich.
In the result, then, I hold that the trust is charitable. With some hesitation I would hold this without the aid of the two further considerations that I have just mentioned, the first of which was not discussed in argument. With the aid of these considerations I remain hesitant, though less so
Re Shaw (dec’d), Public Trustee v Day
[1957] 1 WLR 729, [1957] 1 All ER745, Chancery Division
HARMAN J: …The Attorney-General appears as parens patriae to uphold the trusts as being charitable trusts, and counsel for the Attorney-General at my request also supported the proposition of the executor that, even if not charitable, these trusts, not being tainted with the vice of perpetuity (as it is called), are a valid exercise by a man of his power of disposing of his own money as he thinks fit . The claimants retort that these trusts are not charitable trusts, and it seems to me that I should address myself first to that question. It is notorious that the word ‘charitable’, when used by a lawyer, covers many objects which a layman would not consider to be included under that word, but excludes benevolent or philanthropic activities which the layman would consider charitable. In con struing a will the lawyer’s sense must prevail in the absence of some special context. The four heads of charity are set out by Lord Macnaghten inCommissioners for Special Purposes of Income Tax v Pemsel ([1891] AC 531 at p. 583) His words, as has often been pointed out, are not original, being drawn from the argument of Sir Samuel Romilly in his reply in Morice v Bishop of Durham (1805). 10 Ves 522 at p. 532). They are almost too familiar to need repetition. Shortly stated the four heads are (i) religion, (ii) poverty, (iii) education, and (iv) ‘other purposes beneficial to the community’. Sir Samuel Romilly describes the last head as being ‘the most difficult’, and the phrase he uses is ‘the advancement of objects of general public utility’. Here, again, it is trite law that not every object coming within one or other of these categories is charitable-a college for pickpockets is no charity-but that every object which is to rank as charitable must either fit into one or more of the first three categories, or, if not, may still be held charitable because of general public utility.
The first object of the alphabet trusts is to find out by inquiry how much time could be saved by per sons who speak the English language and write it, by the use of the proposed British alphabet and so to show the extent of the time and labour wasted by the use of our present alphabet, and, if possible, further to state this waste of time in terms of loss of money. The second is to transliterate one of the tes tator’s plays, ‘Androcles and the Lion’, into the proposed British alphabet, assuming a given pronunci ation of English, and to advertise and publish the transliteration in a page by page version in the proposed alphabet on one side and the existing alphabet on the other, and, by the dissemination of copies and, in addition, by advertisement and propaganda, to persuade the government or the public or the English speaking world to adopt it. This was described by the Attorney-General as a useful piece of research beneficial to the public, because it would facilitate the education of the young and the teaching of the language and show a way to save time and, therefore, money. It was suggested that the objects could thus be brought within the third category and that a parallel could be found in the deci sion of Danckwerts, J, in Crystal Palace Trustees v Minister of Town & Country Planning ((1950] 2 All ER 857n.). where trusts ‘for the promotion of industry, commerce and art’ were held charitable. So they were, but only in the context provided by the instrument (An Act of Parliament) in which they appeared. In my opinion, if the object be merely the increase of knowledge, that is not in itself a charitable object unless it be combined with teaching or education (see the speech of Rigby, LJ, in Re Macduff, Macduff v Macduff [1896] 2 Ch 451 at p. 472) ..
The research and propaganda enjoined by the testator seem to me merely to tend to the increase of public knowledge in a certain respect, namely, the saving of time and money by the use of the proposed alphabet. There is no element of teaching or education combined with this, nor does the propaganda element in the trusts tend to more than to persuade the public that the adoption of the new script would be ‘a good thing’, and that, in my view, is not education. Therefore I reject this element …
Re Hopkins
[1965] Ch 669
WILBERFORCE J :What, then, of the practical possibility of discovering any manu scripts, Shakespearian, Baconian, or of other authorship? The experts who have given evidence on the side of the next of kin are not encouraging, but are also not very specific. [Wilberforce J reviewed the expert evidence and continued:] On this evidence, should the conclusion be reached that the search for the Bacon-Shakespeare manuscripts is so manifestly futile that the court should not allow this bequest to be spent on it as on an object devoid of the possibility of any result? I think not. The evidence shows that the discovery of any manuscript of the plays is unlikely; but so are many discoveries before they are made. (One may think of the Codex Sinaiticus, or the Tomb of Tutankhamen, or the Dead Sea Scrolls.) I do not think that that degree of improbability has been reached which justifies the court in placing an initial interdict on the testatrix’s benefaction.
I come, then, to the only question of law: is the gift of a charitable character? The society has put its case in the alternative under the two headings of education and of general benefit to the community and has argued separately for each. This compartmentalisation is derived from the accepted classifi cation into four groups of the miscellany found in the Statute of Elizabeth.
Accepting … that the court must decide each case as best it can, on the evidence available to it, as to benefit; and within the moving spirit of decided cases, it would seem to me that a bequest for the purpose of search, or research, for the original manuscripts of England’s greatest dramatist (whoever he was) would be well within the law’s conception of charitable purposes. The discovery of such manu scripts, or of one such manuscript, would be of the highest value to history and to literature. It is objected, against this, that as we already have the test of the plays, from an almost contemporary date, the discovery of a manuscript would add nothing worth while. This I utterly decline to accept. Without any undue exercise of the imagination, it would surely be a reasonable expectation that the revelation of a manuscript would contribute, probably decisively, to a solution of the authorship problem, and this alone is benefit enough. It might also lead to improvements in the text. It might lead to more accurate dating. Is there any authority, then, which should lead me to hold that a bequest to achieve this objective is
not charitable? By counsel for the next of kin much reliance was placed on the decision on Bernard Shaw’s will, the British alphabet case (ReShaw, Public Trustee v Day [1957] 1 All ER 745).Harman J held that the gift was not educational because it merely tended to the increase of knowledge, and that it was not within the fourth charitable category because it was not itself for a beneficial purpose but for the purpose of persuading the public by propaganda that it was beneficial. The gift was very different from the gift here. But the learned judge did say this [1957] 1 All ER at p. 752:
…if the object be merely the increase of knowledge, that is not in itself a charitable object unless it be combined with teaching or education
This decision certainly seems to place some limits on the extent to which a gift for research may be regarded as charitable. Those limits are that either it must be ‘combined with teaching or education’, if it is to fall under the third head [this is from Morice v Bishop of Durham (1805) 10 Ves 522-it would be the second Pemsel head], or it must be beneficial to the community in a way regarded by the law as charitable, if it is to fall within the fourth category. The words ‘combined with teaching or education’, though well explaining what the learned judge had in mind when he rejected the gift in Re Shaw [1957] 1 All ER 745, are not easy to interpret in relation to other facts. I should be unwilling to treat them as meaning that the promotion of academic research is not a charitable purpose unless the researcher were engaged in teaching or education in the conventional meaning; and I am encouraged in this view by some words of Lord Greene MR in Re Compton, Powell v Compton [1945] Ch 123. The testatrix there had forbidden the income of the bequest to be used for research, and Lord Greene MR treated this as a negative definition of the education to be provided. It would, he said [1945] Ch at p. 127, exclude a grant to enable a beneficiary to conduct research on some point of history or science. This shows that Lord Greene considered that historic research might fall within the description of ‘education’. I think, therefore, that the word ‘education’ as used by Harman J in Re Shaw [1957] 1 All ER 745 must be used in a wide sense, certainly extending beyond teaching, and that the requirement is that, in order to be charitable, research must either be of educational value to the researcher or must be so directed as to lead to something which will pass into the store of educational material, or so as to improve the sum of communicable knowledge in an area which education may cover-education in this last context extending to the formation of literary taste and appreciation: (compare Royal Choral Society v Inland Revenue Comrs [1943] 2 All ER 101). Whether or not the test is wider than this, it is, as I have stated it, amply wide enough to include the purposes of the gift in this case.
As regards the fourth category, Harman J is evidently leaving it open to the court to hold, on the facts, that research of a particular kind may be beneficial to the community in a way which the law regards as charitable, ‘beneficial’ here not being limited to the production of material benefit (as through medical or scientific research) but including at least benefit in the intellectual or artistic fields.
So I find nothing in this authority to prevent me from finding that the gift falls under either the third or fourth head of the classification of charitable purposes. … . . I accept that research of a private character, for the benefit only of the members of a society,
would not normally be educational-or otherwise charitable- … , but I do not think that the research in the present case can be said to be of a private character, for it is inherently inevitable, and manifestly intended, that the result of any discovery should be published to the world.
Re Watson Hobbs v Smith
[1973] 1 WLR 1472
PLOWMAN J : So much for the evidence. There are two questions to consider. The first is, what are the purposes of the trust expressed by the will, and, secondly, whether that trust is a charitable trust. Now as to the first point, the work of God which is referred to in a number of pas sages in the will which I have read, to quote the will, is ‘the work of God as it has been maintained by Mr H. G. Hobbs and myself since 1942 … in propagating the truth as given in the Holy Bible’. And I accept counsel for the Attorney-General’s submission that, on the true construction of the will, read in the light of the evidence of surrounding circumstances, the trust is one for the publication and distri bution to the public of the religious works of Mr H. G. Hobbs. If that is right, to get one point out of the way, that trust will not,in my judgment,fail for impracticability, as counsel for the next-of-kin suggested on one view of the will that it must. On the second question, whether that trust, namely the trust for the publication and distribution to the public of the religious works of Mr Hobbs, is charitable, counsel for the next-of-kin submitted that it was not. He submitted that not every religious trust is charitable, that to be charitable there must be an element of public benefit, that whether or not there is a sufficient pub lic benefit is a matter for the court to decide on evidence, irrespective of the opinion of the donor and that there is no sufficient element of public benefit in thiscase.
Counsel’s submissions were based primarily on National Anti-Vivisection Society v Inland Revenue Comrs [1948] AC 31 [below] and Gilmour v Coats [1949] AC 426 [below], and he submitted that the approach of the House of Lords in those cases was inconsistent with the decision of Romilly MR in
Thornton v Howe (1862) 31 Beav 14. Thornton v Howe was a well-known case about the writings of Joanna Southcote. The sidenote reads:
A trust ‘for printing, publishing and propagating the sacred writings’ of Joanna Southcote, is a charitable trust, which if given out of pure personality will be enforced and regulated. In respect to charitable trusts for printing and circulating works of a religious tendency, this Court makes no distinction between one sect and another, unless their tenets include doctrines adverse to the foundation of all religion or be subversive of all morality, in which case this Court will declare the bequest void.
After referring to the gift in the will Romilly MR said (1862) 31 Beav at 18:
In the first place, it is said that this, if a lawful and legitimate purpose, is a charity and therefore void, so far as the real estate is concerned,by reason of the Statute of Mortmain;and, secondly, it is also said that this is wholly void, both as to realty and personalty, by reason of the immoral ity and irreligious tendency of the writings of Joanna Southcote, which, by this disposition of her property, the testatrix intended to circulate and make more extensively known. On the latter point, being unacquainted with the writings of Joanna Southcote, it became my duty to look into them, for the purpose of satisfying myself on this point, and the result ofmy investigation is, that there is nothing to be found in them which, in my opinion, is likely to corrupt the morals of her followers, or make her readers irreligious.
And I may pause there to say that, in my judgment, is equally true of the writings of Mr H. G. Hobbs in this case. Romilly MR then went on to express his opinion of Joanna Southcote, saying that,in his opin ion, she was-
a foolish, ignorant woman, of an enthusiastic turn of mind, who had long wished to become an instrument in the hands of God to promote some great good on earth.
He said (1862) 31 Beav at 19, 20, 21: In the history of her life, her personal disputations and conversations with the devil, her proph ecies and her inter-communings with the spiritual world,I have found much that, in my opinion, is very foolish, but nothing which is likely to make persons who read them either immoral or irre ligious. I cannot, therefore, say that this devise of the testatrix is invalid by reason of the ten dency of the writings of Joanna Southcote.On the other hand, the contentionraised, that thisis a gift to promote objects which are within the meaning of what this Court, for shortness, terms ‘charitable objects’, and that, consequently, it is within the provisions of the Statute of Mortmain, presents a more serious objection to this devise …
I am of opinion, that if a bequest of money be made for the purpose of printing and circulat ing works of a religious tendency, or for the purpose of extending the knowledge of the Christian religion, that this is a charitable bequest, and this Court will, upon a proper application being made to it, sanction and settle a scheme for this purpose, and, in truth, it is but lately that I have had in Chambers to settle and approve of a scheme of this description. In this respect, I am of opinion that the Court of Chancery makes no distinction between one sort of religion and another. They are equally bequests which are included in the general terms of charitable bequests. Neither does the Court, in this respect, make any distinction between one sect and another. It may be that the tenets of a particular sect inculcate doctrines adverse to the very foundations of all religion, and that they are subversive of all morality.In such a case, if it should arise, the Court will not assist the execution of the bequest, but will declare it to be void; but the character of the bequest, so far as regards the Statute of Mortmain, would not be altered by this circumstance.The general immoral tendency of the bequest would make it void, whether it was to be paid out of pure personality or out of real estate.But if the tendency were not immoral, and although this Court might consider the opinions sought to be propagated foolish or even devoid of foundation, it would not, on that account, declare it void, or take it out of the class of legacies which are included in the general terms charitable bequests. The words of the bequest here are, ‘to propagate the sacred writings of Joanna Southcote’. The testatrix, it is clear, was a dis ciple or believer in Joanna Southcote, who, from her writings, it is clear, was a very sincere Christian; but she laboured under the delusion that she was to be made the medium of the miraculous birth of a child at an advanced period of her life, and that thereby the advancement of the Christian religion on earth would be occasioned. But her works, as far as I have looked at them, contain but little upon this subject, and nothing which could shake the faith of any sincere Christian. In truth, though her works are in a great measure incoherent and confused, they are written obviously with a view to extend the influence of Christianity. I cannot say that the bequest of a testator to publish and propagate works in support of the Christian religion is a charitable bequest, and, at the same time, say, that if another testator should select for this pur pose some three or four authors, whose works will, in his opinion, produce that effect, such a bequest thereupon ceases to be charitable. Neither can I do so if a testator should select one single author whose works he thinks will produce that result. If a testator were to leave a fund for the purpose of propagating, at a very reduced price, the religious writings of Dr Paley or Dr Butler, I should be of opinion that the bequest was charitable in its character, and I must hold the same in respect of what the testatrix has called ‘the sacred writings of the late Joanna Southcote’.
The question then arises whether Thornton v Howe is still good law. It has been treated as good law on a considerable number of occasions since it was decided and I mention certain examples which were cited to me in the course of the arguments. The first one, I think, is Bowman vSecular Society Ltd [1917] AC 406. The reference to Thornton v Howe is in the speech of Lord Parker of Waddington, where he said [1917] AC at 442:
…a trust for the attainment of political objects has always been held invalid, not because it is illegal, for every one is at liberty to advocate or promote by any lawful means a change in the law, but because the Court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift. The same considerations apply when there is a trust for the publication of a book. The Court will examine the book, and if its objects be charitable in the legal sense it will give effect to the trust as a good charity: Thornton v Howe.
…
Now the result of those cases, including the Anti-Vivisection case to which counsel for the next-of-kin referred, in my judgment, is this. First of all, as Romilly MR said in Thornton v Howe, the court does not prefer one religion to another and it does not prefer one sect to another. Secondly, where the purposes in question are of a religious nature-and, in my opinion, they clearly are here-then the court assumes a public benefit unless the contrary is shown. In the Anti-Vivisection case, Lord Wright said [1948] AC at 42:
The test of benefit to the community goes through the whole of Lord Macnaghten’s classifica tion [in the Pemsel case [1891) AC531], though, as regards the first three heads [which of course includes religion]. it may be prima facie assumed unless the contrary appears.
And Lord Simonds, in his speech, said [1948) AC at 65:
I would rather say that, when a purpose appears broadly to fall within one of the familiar cat egories of charity, the court will assume it to be for the benefit of the community and therefore charitable unless the contrary is shown, and further that the court will not be astute in such a case to defeat upon doubtful evidence the avowed benevolent intention of a donor.
And thirdly, that having regard to the fact that the court does not draw a distinction between one reli gion and another or one sect and another, the only way of disproving a public benefit is to show, in the words of Romilly MR inThornton v Howe, that the doctrines inculcated are-‘adverse to the very foundations of all religion, and that they are subversive of all morality’. And that in my judgment, as I have said already, is clearly not the case here, and I therefore conclude that this case is really on all fours with Thornton v Howe and for that reason is a valid charitable trust.
Re South Place Ethical Society, Barralet v Attorney-General
[1980] 3 All ER 918,
DILLON J : I propose therefore to consider first the claim that the society is char itable because its objects are for the advancement of religion. In considering this, as inconsidering the other claims, I keep very much inmind the observation of Lord Wilberforce in theScottish Burial Reform and Cremation Society Ltd v Glasgow City Corpn (1968] AC 138 at 154, tht the law of charity is a mov ing subject which may well have evolved even since 1891. The submissions of counsel for the society seek to establish that this is indeed so, having regard to current thinking in the field of religion.
Of course it has long been established that a trust can be valid and charitable as for the advancement of religion although the religion which is sought to be advanced is not the Christian religion. In Bowman v Secular Society Ltd (1917] AC 406 at 448-50, Lord Parker of Waddington gave a very clear and valu able summary of the history of the approach of the law to religious charitable trusts. He said ([1917) AC 406at 449): It would seem to follow that a trust for the purpose of any kind of monotheistic theism would be a good charitable trust.
Counsel for the society accepts that, so far as it goes, but he submits that Lord Parker should have gone further, even in 1917 (because the society’s beliefs go back before that date) and the court should go further now. The society says that religion does not have to be theist or dependent on a god; any sin cere belief in ethical qualities is religious, because such qualities as truth, love and beauty are sacred, and the advancement of any such belief is the advancement of religion …
In a free country … it is natural that the court should desire not to discriminate between beliefs deeply and sincerely held, whether they are beliefs ina god or in the excellence of man or in ethical prin ciples or in Platonism or some other scheme of philosophy. But I do not see that that warrants extend ing the meaning of the word ‘religion’ so as to embrace all other beliefs and philosophies. Religion, as I see it, is concerned with man’s relations with God, and ethics are concerned with man’s relations with man. The two are not the same, and are not made the same by sincere inquiry into the question, What is God? If reason leads people not to accept Christianity or any known religion, but they do believe in the excellence of qualities such as truth, beauty and love, or believe in the Platonic concept of the ideal, their beliefs may be to them the equivalent of a religion, but viewed objectively they are not religion
Dingle v Turner
[1972] AC 601
LORD CROSS: The status of some of the ‘poor relations’ trusts as valid charitable trusts was recognised more than 200 years ago and a few of those then recognised are still being administered as charities today. In Re Compton [1945] Ch 123 Lord Greene MR said that it was ‘quite impossible’ for the Court of Appeal to overrule such old decisions and in the Oppenheim case [1951] AC at 309 [above], Lord Simonds in speaking of them remarked on the unwisdom of-
[casting] doubts on decisions of respectable antiquity in order to introduce a greater harmony into the law of charity as a whole.
Indeed counsel for the appellant hardly ventured to suggest that we should overrule the ‘p9or relations’ cases. His submission was that which was accepted by the Court of Appeal in Ontario in Re Cox [1951] OR 205-namely that while the ‘poor relations’ cases might have to be left as long standing anomalies there was no good reason for sparing the ‘poor employees’ cases which only date from Re Gosling (1900) 48 WR 300 decided in 1900 and which have been under suspicion ever since the decision in Re Compton in 1945. But the ‘poor members’ and the ‘poor employees’ decisions were a natural development of the ‘poor relations’ decisions and to draw a distinction between different sorts of ‘poverty’ trusts would be quite illogical and could certainly not be said to be introducing ‘greater har mony’ into the law of charity. Moreover, although not as old as the ‘poor relations’ trusts, ‘poor employ ees’ trusts have been recognised as charities for many years; there are now a large number of such trusts in existence; and assuming, as one must, that they are properly administered in the sense that benefits under them are only given to people who can fairly be said to be, according to current stand ards, ‘poor persons’ to treat such trusts as charities is not open to any practical objection. So it seems to me it must be accepted that wherever else it may hold sway the Compton rule has no application in
the field of trusts for the relief of poverty and that there the dividing line between a charitable trust and a private trust lies where the Court of Appeal drew it in Re Scarisbrick [1951] Ch 622.verty
The Oppenheim case was a case of an educational trust and although the majority evidently agreed with the view expressed by the Court of Appeal in the Hobourn Aero case [1946] Ch 194 [below], that the Compton rule was of universal application outside the field of poverty, it would no doubt be open to this House without overruling Oppenheim to hold that the scope of the rule was more limited. If ever I should be called on to pronounce on this question-which does not arise in this appeal-I would as at present advised be inclined to draw a distinction between the practical merits of the Compton rule and the reasoning by which Lord Greene MR sought to justify it. That reasoning-based on the distinction between personal and impersonal relationships-has never seemed to me very satisfactory and I have always-if I may say so-felt the force of the criticism to which my noble and learned friend Lord MacDermott subjected it in his dissenting speech in the Oppenheim case. For my part I would prefer to approach the problem on far broader lines. The phrase ‘a section of the public’ is in truth a vague phrase which may mean different things to different people. In the law of charity judges have sought to elucidate its meaning by contrasting it with another phrase ‘a fluctuating body of private individuals’. But I get little help from the supposed contrast for as I see it one and the same aggregate of persons may well be describable both as a section of the public and as a fluctuating body of private individuals. The ratepayers in the Royal Borough of Kensington and Chelsea, for example, certainly constitute a section of the public; but would it be a misuse of language to describe them as a ‘fluctuating body of private individuals’? After all, every part of the public is composed of individuals and being susceptible of increase or decrease is fluctuating. So at the end of the day one is left where one started with the bare contrast between ‘public’ and ‘private’. No doubt some classes are more naturally describable as sections of the public than as private classes while other classes are more naturally describable as pri vate classes than as sections of the public. The blind, for example, can naturally be described as a sec tion of the public; but what they have in common-their blindness-does not join them together in such a way that they could be called a private class. On the other hand, the descendants of Mr Gladstone might more reasonably be described as a ‘private class’ than as a section of the public, and in the field of common employment the same might well be said of the employees in some fairly small firm. But if one turns to large companies employing many thousands of men and women most of whom are quite unknown to one another and to the directors the answer is by no means so clear. One might say that in such a case the distinction between a section of the public and a private class is not applicable at all or even that the employees in such concerns as ICI or GEC are just as much ‘sections of the public’ as the residents in some geographical area. In truth the question whether or not the poten tial beneficiaries of a trust can fairly be said to constitute a section of the public is a question of degree and cannot be by itself decisive of the question whether the trust is a charity. Much must depend on the purpose of the trust. It may well be that, on the one hand, a trust to promote some purpose, prima facie charitable, will constitute a charity even though the class of potential beneficiaries might fairly be called a private class and that, on the other hand, a trust to promote another purpose, also prima facie char itable, will not constitute a charity even though the class of potential beneficiaries might seem to some people fairly describable as a section of the public.
In answering the question whether any given trust is a charitable trust the courts-as I see it-can not avoid having regard to the fiscal privileges accorded to charities. As counsel for the Attorney General remarked in the course of the argument the law of charity is be devilled by the fact that charitable trusts enjoy two quite different sorts of privilege. On the one hand, they enjoy immunity from the rules against perpetuity and uncertainty and although individual potential beneficiaries cannot sue to enforce them the public interest arising under them is protected by the Attorney-General. If this was all there would be no reason for the courts not to look favourably on the claim of any ‘purpose’ trust to be considered as a charity if it seemed calculated to confer some real benefit on those intended to bene fit by it whoever they might be and if it would fail if not held to be a charity. But that is not all. Charities automatically enjoy fiscal privileges which with the increased burden of taxation have become more and more important and in deciding that such and such a trust is a charitable trust the court is endow ing it with a substantial annual subsidy at the expense of the taxpayer. Indeed, claims of trusts to rank as charities are just as often challenged by the Revenue as by those who would take the fund if the trust was invalid. It is, of course, unfortunate that the recognition of any trust as a valid charitable trust should automatically attract fiscal privileges, for the question whether a trust to further some purpose is so little likely to benefit the public that it ought to be declared invalid and the question whether it is likely to confer such great benefits on the public that it should enjoy fiscal immunity are really two quite different questions. The logical solution would be to separate them and to say-as the Radcliffe Commission proposed-that only some charities should enjoy fiscal privileges. But as things are, valid ity and fiscal immunity march hand in hand and the decisions in the Compton and Oppenheim cases were pretty obviously influenced by the consideration that if such trusts as were there in question were held valid they would enjoy an undeserved fiscal immunity. To establish a trust for the education of the children of employees in a company in which you are interested is no doubt a meritorious act; but how ever numerous the employees may be the purpose which you are seeking to achieve is not a public pur pose. It is a company purpose and there is no reason why your fellow taxpayer should contribute to a scheme which by providing ‘fringe benefits’ for your employees will benefit the company by making their conditions of employment more attractive. The temptation to enlist the assistance of the law of charity in private endeavours of this sort is considerable-witness the recent case of the Metal Box scholarships-/RCv Educational Grants Association Ltd [1967] Ch 993-and the courts must do what they can to discourage such attempts. In the field of poverty the danger is not so great as in the field of education-for while people are keenly alive to the need to give their children a good education and to the expense of doing so, they are generally optimistic enough not to entertain serious fears of falling on evil days much before they fall on them. Consequently the existence of company ‘benevolent funds’, the income of which is free of tax does not constitute a very attractive ‘fringe benefit’. This is a practical justification-although not, of course, the historical explanation-for the special treatment accorded to poverty trusts in charity law. For the same sort of reason a trust to promote some religion among the employees of a company might perhaps safely be held to be charitable provided that it was clear that the benefits were to be purely spiritual. On the other hand, many ‘purpose’ trusts falling under Lord Macnaughten’s fourth head if confined to a class of employees would clearly be open to the same sort of objection as educational trusts. As I see it, it is on these broad lines rather than for the reasons actu
ally given by Lord Greene MR that the Compton rule can best be justified.
Oppenheim v Tobacco Securities Trust Co.
[1951] AC 297
LORD SIMONDS: It is a clearly established principle of the law of charity that a trust is not charitable unless it is directed to the public benefit. Thisissometimes stated in the proposition that it must bene fit the community or a section of the community. Negatively it is said that a trust is not charitable if it confers only private benefits. In the recent case of Gilmour v Coates [1949] AC 426 this principle was reasserted. It is easy to state and has been stated in a variety of ways, the earliest statement that I find being in Jones v Williams (1767) 2 Amb 651, in which Lord Hardwicke LC, is briefly reported as follows: ‘Definition of charity:a gift to a general public use, which extends to the poor as well as to the rich’.With a single exception, to which I shall refer, this applies to all charities. We are apt now to classify them by reference to Lord Macnaughten’s division in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531, 583 and, as I have elsewhere pointed out, it was at one timesuggested that the element of public benefit was not essential except for charities falling within the fourth class, ‘other pur poses beneficial to the community’. Thisiscertainly wrong except in the anomalous case of trusts for the relief of poverty with which I must specifically deal. In the case of trusts for educational purposes the condition of public benefit must be satisfied. The difficulty lies in determining what is sufficient to satisfy the test …
The difficulty arises where the trust is not for the benefit of any institution either then existing or by the terms of the trust to be brought into existence, but for the benefit of a class of persons at large. Then the question is whether that class of persons can be regarded as such as a ‘section of the com munity’ as to satisfy the test of public benefit. The words ‘section of the community’ have no special sanctity, but they conveniently indicate first, that the possible (I emphasise the word ‘possible’) benefi ciaries must not be numerically negligible, and secondly, that the quality which distinguishes them from other members of the community, so that they form a section of it, must be a quality which does not depend on their relationship to a particular individual. A group of persons may be numerous,
but, if the nexus between them is their personal relationship to a single propasitus or to several
propositi, they are neither the community nor a section of the community for charitable purposes …
It must not, I think, be forgotten that charitable institutions enjoy rare and increasing privileges, and that the claim to come within that privileged class should be clearly established.With the single excep tion of Re Rayner (1920) 89 U Ch 369, which I must regard as of doubtful authority, no case has been brought to the notice of the House in which such a claim as thishas been made, where there is no elem ent of poverty in the beneficiaries,but just this and no more, that they are the children of those in com mon employment.
Learned counsel for the appellant sought to fortify his case by pointing to the anomalies that would ensue from the rejection of his argument. For, he said, admittedly those who follow a profession or call ing, clergymen, lawyers, colliers, tobacco workers and so on, are a section of the public; how strange then it would be if, as in the case of railwaymen, those who follow a particular calling are all employed by one employer. Would a trust for the education of railwaymen be charitable, but a trust for the edu cation of men employed on the railways by the Transport Board not be charitable? And what of service of the Crown whether in the civil service or the armed forces? Is there a difference between soldiers and soldiers of the King? My lords, I am not impressed by this sort of argument and will consider on its merits, if the occasion should arise, the case where the description of the occupation and the employ ment is in effect the same, where in a word, if you know what a man does, you know who employs him to do it. It is to me a far more cogent argument, as it was to my noble and learned friend in the Hobourn case [1946] Ch 194, that if a section of the public is constituted by the personal relations of employ ment, it is impossible to say that it is not constituted by 1,000 as by 100,000 employees, and, if by 1,000, then by 100, and if by 100, then by 10. I do not mean merely that there is a difficulty in drawing the line, though that too is significant: I have it also in mind that, though the actual numbers of employ ees at any one moment might be small, it might increase to any extent, just as, being large, it might decrease to any extent. If the number of employees is the test of validity, must the court take into account potential increase or decrease, and if so, as at what date?
… I would also, as I have previously indicated, say a word about the so-called ‘poor relations’ cases. I do so only because they have once more been brought forward as an argument in favour of a more generous view of what may be charitable. It would not be right for me to affirm orto denounce or to jus tify these decisions: I am concerned only to say that the law of charity, so far as it relates to ‘the relief of aged, impotent and poor people’ (I quote from the statute) and to poverty in general, has followed its own line, and that it is not useful to try to harmonise decisions on that branch of the law with the broad proposition on which the determination of this case must rest. It is not for me to say what fate might await those cases if in a poverty case this House had to consider them.
LORD MACDERMOTT (dissenting): But can any really fundamental distinction, as respects the personal or impersonal nature of the common link, be drawn between those employed, for example, by a par ticular university and those whom the same university has put in a certain category as the result of indi vidual examination and assessment? Again, if the bond between those employed on a particular railway is purely personal, why should the bond between those who are employed as railwaymen be so essentially different? Is a distinction to be drawn in this respect between those who are employed in a particular industry before it is nationalised and those who are employed therein after that process has been completed and one employer has taken the place of many? Are miners in the service of the National Coal Board now in one category and miners at a particular pit or of a particular district in another? Is the relationship between those in the service of the Crown to be distinguished from that obtaining between those in the service of some other employer? Or, if not, are the children of, say, sol diers or civil servants to be regarded as not constituting a sufficient section of the public to make a trust for their education charitable?
It was conceded in the course of the argument that,had the present trust been framed so as to pro vide for the education of the children of those engaged in the tobacco industry in a named county or town, it would have been a good charitable disposition, and that even though the class to be benefited would have been appreciably smaller and no more important than is the class here.
Re Hetherington
[1990] Ch 1
SIR NICHOLAS BROWNE-WILKINSON V-C: In my judgment the cases establish the following propositions.
(1) A trust for the advancement of education, the relief of poverty or the advancement of religion is prima facie charitable and assumed to be for the public benefit. National Anti-Vivisection Society v Inland Revenue Commissioners [1948] AC 31, 42 and 65. This assumption of public benefit can be rebutted by showing that in fact the particular trust in question cannot operate so as to confer a legally recognised benefit on the public, as in Gilmour v Coats [1949] AC 426.
(2) The celebration of a religious rite in public does confer a sufficient public benefit because of the edifying and improving effect of such celebration on the members of the public who attend. As Lord Reid said inGilmour v Coats [1949] AC 426, 459:
A religion can be regarded as beneficial without it being necessary to assume that all its beliefs are true, and a religious service can be regarded as beneficial to all those who attend it without it being necessary to determine the spiritual efficacy of that service or to accept any particular belief about it.
(3) The celebration of a religious rite in private does not contain the necessary element of public benefit since any benefit by prayer or example is incapable of proof in the legal sense, and any element of edification is limited to a private, not public, class of those present at the celebration: see Gilmour v Coats; Yeap Cheah Neo v Ong Cheng Neo (1875) LR 6 PC 381 and Hoare v Hoare (1886) 56 LT 147.
Where there is a gift for a religious purpose which could be carried out in a way which is beneficial to the public (i.e. by public Masses) but could also be carried out in a way which would not have sufficient element of public benefit (i.e. by private Masses) the gift is to be construed as a gift to be carried out only by the methods that are charitable, all non-charitable methods being excluded: see In re White [1893] 2 Ch 41, 52-53; and In re Banfield [1968) 1 WLR 846.
Applying those principles to the present case, a gift for the saying of Masses is prima facie charitable, being for a religious purpose. In practice, those Masses will be celebrated in public which provides a sufficient element of public benefit. The provision of stipends for priests saying the Masses, by reliev ing the Roman Catholic Church pro tanto of the liability to provide such stipends, is a further benefit. The gift is to be construed as a gift for public Masses only on the principle of In re White, private Masses not being permissible since it would not be a charitable application of the fund for a religious purpose.
Neville Estates v Madden
[1962] Ch 832
CROSS J (on the question whether the purposes of the Catford Synagogue were charitable):If, as I have held, this £3,250 and the land bought with it was held by the trustees for the purposes of this syna gogue, then the plaintiffs contend that the trust is not a charitable trust on two grounds. First, because the objects of the synagogue are not wholly religious. Secondly, because if the objects are wholly reli gious, a trust for the benefit of an unincorporated association of this sort is not a charitable trust but a private trust for the benefit of the members from time to time.
The chief purposes which a synagogue exists to achieve are the holding of religious services and the giving of religious instruction to the younger members of the congregation. But just as today church activity overflows from the church itself to the parochial hall, with its whist drives, dances and bazaars, so many synagogues today organise social activities among the members. A new clause added to the scheme of the United Synagogue in October, 1926,authorised, or purported to authorise, that body to establish, inter alia, halls for religious and social purposes, and the Catford Synagogue, as I have said, has erected a communal hall near the synagogue building in which social functions are held. The plain tiffs, fastening on these facts and on the wording of cl. 2 of the trust deed, argue that the trust in this case is open to the objections which proved fatal to the trust for the foundation of a community centre which came before the court in /RC v Baddeley [1955] AC 572. But in my judgment there is a great dif ference between that case and this. Here, the social activities are merely ancillary to the strictly reli gious activities. In the Baddeley case, on the other hand, no one sought to argue-indeed it was manifestly impossible to argue-that the trust was for the advancement of religion.No doubt it had a religious flavour in that the beneficiaries were confined to Methodists or persons likely to become Methodists, and the premises and the activities in which the beneficiaries were to engage were to be under the control of the leaders of a Methodist mission.Nevertheless the activities in themselves were directed predominantly to the social and not to the religious well-being of the beneficiaries.
In my judgment the purposes of the trust with which I am concerned are religious purposes-the social aspect is merely ancillary.
I turn now to the argument that this is a private, not a public trust. In an article which he contributed in 1946 to volume 62 of the Law Quarterly Review, Professor Newark argued that the courts ought not to concern themselves with the question whether or not a trust for a religious purpose confers a pub lic benefit. Even assuming that such questionscan be answered at all, judges, he said, are generally ill equipped to answer them and their endeavours to do so are apt to cause distress to the faithful and amusement to the cynical.I confess that I have considerablesympathy with Professor Newark’s views; but the decision of the House of Lords in Gilmour v Coats [1949] AC 426 has made it clear that a trust for a religious purpose must be shown to have some element of public benefit in order to qualify as a char itable trust. In that case it was held that a trust to apply the income of a fund for all or any of the pur poses of a community of Roman Catholic nuns living in seclusion and spending their lives in prayer, contemplation and penance, was not charitable because it could not be shown that it conferred any benefit on the public or on any section of the public. The trust with which I am concerned resembles that inGilmourv Coats in this, that the persons immediately benefited by it are not a section of the pub lic but members of a private body. All persons of the Jewish faith living in or about Catford might well constitute a section of the public, but the members for the time being of the Catford Synagogue are no more a section of the public than the members for the time being of a Carmelite Priory. The two cases, however, differ from one another in that the members of the Catford Synagogue spend their lives in the world, whereas the members of a Carmelite Priory live secluded from the world. If once one refuses to pay any regard-as the courts refused to pay any regard-to the influence which these nuns living in seclusion might have on the outside world, then it must follow that no public benefit is involved in a trust to support a Carmelite Priory. As Lord Greene said in the Court of Appeal ([1948] Ch 340, 354): ‘Having regard to the way in which the lives of the members are spent, the benefit is a purely private one.’ But the court is, I think, entitled to assume that some benefit accrues to the public from the attendance at places of worship of persons who live in this world and mix with their fellow citizens. As between different religions the law stands neutral, but it assumes that any religion is at least likely to be better than none.
Re Warre’s WT, Wort v Salisbury Diocesan Board of Finance
[1953] 2 All ER 99
HARMAN J Should I be wrong in that view, and the so-called wishes are mandatory, then it remains to be seen whether those wishes themselves are exclusively charitable …
The testatrix proposed …what she called a retreat house, and this phrase is explained as meaninga house devoted to a form of religious activity or inactivity which isknown as a ‘retreat’, and that isa form of religious experience well understood in the Church of England.It is a retirement from the activities of the world for a space of time for religious contemplation and the cleansing of the soul. No doubt that is a highly beneficial activity for the person who undertakes it, but it is not in English law a charitable activ
ity. In Cocks v Manners (1871) LR 12 Eq 574, which was recently confirmed by the House of Lords in ilmourv Coats (1949] AC 426, Sir John Wickens V-Csaid (LR 12 Eq 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 issaid,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 the edification of the public ..
Gilmour v Coats was concerned with a trust for a certain Roman Catholic priory which consisted of cloisterednuns, who devoted their life to prayer,contemplation, penance and self-sanctification within their convent and engaged in no exterior works. There was evidence as to the doctrine of the Roman Catholic Church with regard to the benefit conferred by the contemplative life, not only on those who followed it themselves, but also through the efficacy of their intercessory prayers. The House of Lords held that the element of public benefit essential to render a purpose charitable applied equally to reli gious as to other charities. By that decision, therefore, the House declined to go beyond the doctrine of Cocks v Manners.
Activities which do not in any way affect the public or any section of it are not charitable. Pious con templation and prayer are, no doubt, good for the soul, and may be of benefit by some intercessory process, of which the law takes no notice, but they are not charitable activities. It follows, then, that if the purposes indicated by way of confining the absolute discretion given to the trustees include a pur pose which is not charitable, the trustees are, on this view, enjoined to embark on a purpose which is not charitable.