Residual Category
Charities Act 1961
Construction of gifts for mixed purposes.
49.—(1) Where any of the purposes of a gift includes or could be deemed to include both charitable and non-charitable objects, its terms shall be so construed and given effect to as to exclude the non-charitable objects and the purpose shall, accordingly, be treated as charitable.
(2) Subsection (1) shall not apply where—
(a) the gift takes effect before the 1st day of January, 1960, or
(b) (i) the terms of the gift make, or provide for the making of, an apportionment between the charitable and the non-charitable objects, and
(ii) the non-charitable objects are identifiable from an express or implied description.
(3) This section shall not, by its operation on any gift as respects the period from the 1st day of January, 1960, to the 24th day of September, 1960, entitle any person to reclaim any tax or duty paid or borne during that period, nor (save as respects tax or duty) require the objects declared by the gift to be treated as having been charitable so as to invalidate anything done or any determination given during that period.
Cases
Re Watson, deceased
; Shillington and another v Portadown Urban District Council and others.
High Court of Justice.
Chancery Division.
13 May 1910
[1910] 44 I.L.T.R 200
Barton, J., in the course of his judgment, said:—It would be convenient to deal, in the first instance, with the fourth and principal direction in the will with respect to the residue. It ran as follows:—“And in the fourth place I direct that the balance of the income derived from my estate shall be applied by my trustees for the purpose of fostering, encouraging, and providing the means of obtaining healthy recreation, including the teaching of singing in classes or choruses, for the residents of the town of Portadown and the surrounding districts, and for the purpose of providing music and instruments (in so far as my trustees think advisable) for the town band in such manner and form as my trustees shall in their absolute discretion consider best, but in no case shall my trustees pay away any moneys derived out of my estate for prizes for football or for rowing for speed.” This direction constituted, in his opinion, a valid charitable devise and bequest. The testator’s purpose was a charitable or public purpose; he wished to benefit the residents of his native town and of its immediate neighbourhood. The benefits which he intended to confer were such as he believed to be of public advantage. His belief was rational and not contrary to the laws of the land or the principles of morality. His intention and belief were sufficiently expressed in the will, and were to be gathered from the fair and natural construction of the words of the gift, and were confirmed and justified by the tenor and provisions of the rest of the will. If he was right in thus describing it, it was clearly a valid charitable gift. Looking at the rest of the will, there were three or four indications of general intention which were worthy of notice In the first place the testator appointed the local urban council, the representative and administrative public body of the district, as trustees with his executors. Secondly, he directed that there was to be a quinquennial symposium, which was to include not only the urban councillors, but the town clerk for the time being, who were to meet for the purpose of discussing the will and getting suggestions for carrying out the trusts. Thirdly, he directed that the executors should be an advisory committee to the urban councillors for the time being, indicating that the execution of the trusts were to be entrusted to the local public body, and that the executors were to have merely an advisory influence. Fourthly, he directed that the accounts of the trust estate were to be published once annually in a local newspaper, “so that the public may see how the estate is managed.” It was quite true that the mere appointment of a municipal body as trustees did not make the trust a charitable one, but it was an element which, with other circumstances such as he had mentioned, helped the Court in coming to the conclusion that the testator contemplated public and not private purposes and benefits. In the gift itself the testator expressly named the residents of the town and surrounding district as the objects of his bounty. It had been contended that the trustees might, within the wide discretionary power given to them, apply part of the income to some non-charitable object, but the testator gave an example of what methods of obtaining healthy recreation for the residents he intended to include, and examples of what he meant to exclude. He said that he meant to include the teaching of singing in classes or choruses, which in itself would be a good charitable object. He said that he meant to exclude prizes for football or rowing for speed. These were examples of a purpose to encourage mere sport and amusement, which in themselves might not be charitable: In re Nottage, [1895] 2 Ch. 649. It was true he had not drawn up exhaustive categories of objects which the decided cases had held to be respectively charitable or non-charitable, but that was not necessary. All the examples which he gave were in harmony with a charitable public purpose. The practical rule was whether on the fair and rational construction of the words used all the purposes were charitable and public purposes: Wrexham Corporation v. Tamplin, 21 W. R. 768; Dolan v. MacDermot, L. R. 3 Ch. 676; In re Allen, [1905] 2 Ch. 400-407. The arguments against the charity were mainly concentrated upon the town band. Indeed, the language of the gift itself would hardly leave any room for doubt as to its public purpose if it were not for the words “and for the purpose of providing music and instruments (in so far as my trustees think advisable) for the town band.” There was a town band supported by voluntary contributions, which was a local feature of some public interest, and occupied, at a nominal rent, a part of the Town Hall for its practice. But, although it had a public habitation and name, it had not and could not have any official, municipal, or other public status. Counsel for the next-of-kin and heir-at-law had contended that this sentence about the town band must be treated grammatically as a separate “water-tight” gift for the benefit of *202 a private band, and that if that was the true construction it would not be a legal charitable gift. If the intention was primarily to benefit the band, it would be immaterial that the result would be to benefit the town. The purpose would not be public and charitable; and the only question would arise—whether the residuary gift failed altogether or was divisible, and if divisible, whether it failed moietively or in proportion to the benefit intended for the band, which proportion would, in that view of the gift, have to be ascertained by an enquiry at Chambers. He had, however, come to the conclusion that this “water-tight” construction was not the fair or rational one. The expressed purpose of the testator to be gathered from the context and from the entire will was to benefit the town and not to benefit the band. So little did he care for the band as a private organisation for its own sake that he left it to the discretion of the trustees whether anything was to be given to the band or not. They were only to benefit the band in so far as the trustees— i.e., the local urban council with the advice of the executors—thought advisable. If they did not think it advisable in their discretion, they need not provide any music or instruments for the town band. Advisable from what point of view? Could there be any doubt that it would be from the point of view of providing means of healthy recreation for the residents. To provide music and instruments for a town band would seem to be a typical means of providing healthy recreation for the residents of a busy town. After naming the general purpose of providing means for the healthy recreation of the inhabitants, he went on to name a purpose, which was a particular way of carrying out his general purpose— namely, providing music and instruments for the town band in so far as his trustees might think advisable. Reference was made to the Public Health Acts Amendment Act, 1907 (7 Edw. VII., c. 53). Part VI. of that Act recognises the public advantage of recreation grounds, and empowered the Local Government Board in England and Ireland to make rules and prescribe conditions and give their approval of a limited rate. Subject to the exercise of these powers by the Local Government Board, the local authorities were given wider powers than they formerly possessed in reference to enclosing and maintaining parks and pleasure grounds. By sub-sections ( d ) and ( e ) they were empowered to provide or contribute towards the expenses of any band of music to perform in the park or ground, and to enclose any part of the park or ground, not exceeding one acre, for the convenience of persons listening to any band of music, and charge admission thereto. It was immaterial that the Local Government Board in Ireland had not yet made rules or prescribed conditions or approved of a limited rate. This was a statutory recognition of the public usefulness of this particular means of healthy recreation for an urban population. It seemed to him that it would be as reasonable to attribute to the Legislature in that section the intention to benefit the civil or military band to which the local body might contribute under that section as to attribute to this testator the intention in this gift to benefit this band. He was not thinking of benefiting the individuals who played the trombone, big drum and other instruments, but of benefiting the residents in the town, and the music and instruments for the band were mere expedients for providing healthy recreation for the people of the town and neighbourhood. Few people who had any acquaintance with those urban districts, of which Portadown was a type, would fail to recognise that the testator’s purpose was not merely public, but was rational and well directed. To provide means of healthy recreation for the residents was to supply a want in the social life of those busy communities. To provide music and instruments for a local band was an obvious way of carrying out that purpose. The testator, in his opinion, intended to benefit the local public in ways which were both rational and legal. It would, in his opinion, be catching at straws, to hold that the purpose of any part of this bequest and devise was other than a charitable and public purpose. One result of holding that this residuary gift was charitable was to simplify the minor questions which had been discussed. If these preliminary directions failed, they would become applicable to the general charitable purpose, or would fall into the residue. Any questions with reference to them could be discussed at a later stage in connection with the details of the scheme. In the view which he took of the charitable character of the principal devise, the only persons who were concerned in these minor questions were the trustees and the Attorney-General, and he decided nothing that would prevent the question of the accumulation fund and dinner fund being reconsidered in connection with the scheme. The next-of-kin and heir-at-law had, in his opinion, no concern with these questions.
Commissioners of Charitable Donations and Bequests v McCartan and others
Chancery Division.
13 March 1917
[1917] 51 I.L.T.R 197
O
O’Connor, M.R.
The question in this case is: Was there a valid charitable trust declared by the will of Anna Magennis? The words of the will were—“For establishing monastery or other religious, ecclesiastical or charitable institution which Rev. William McCartan in his absolute discretion should think fit, or partly for such purpose or purposes and partly for Masses for the repose of the souls of (testatrix’s) family.” The will then proceeded—“I do not bind the said Rev. William McCartan at any time for the establishing of these charities, or for having those Masses said, or the places or persons by whom, believing, as I do, that the said William McCartan will do what is right and just.” Rev. William McCartan never exercised the discretion which was thus reposed in him. He died without executing the trust, and, apparently always regarded himself as having absolute disposing power over the property; but a charitable trust cannot fail because the trustee has been in default. Was there a binding charitable trust in this case? Rev. William McCartan’s executors and trustees say that there was not, because the purposes declared were not all charitable, and it was open to him to select non-charitable purposes. It is argued that the establishment of a monastery is not a charitable purpose, because a monastery is not necessarily devoted to works of charity, such as education or the nursing of the sick poor, which are of benefit to the public. That is true; because monasteries often are institutions whose members devote their lives to prayer and meditation and other acts of piety not intended for the benefit of the outside public or any section of them, and such institutions are not charitable in the legal sense. It is urged that the religious and ecclesiastical institutions mentioned in this will are not necessarily charities, and possibly that is so, although there are authorities for the proposition that a religious purpose is primâ facie a charitable purpose. It is admitted that a monastery is not necessarily a charity, but it is contended that it was only such a monastery as would be charitable that the testatrix referred to in her will. Reliance is placed upon the words—“I do not bind the said Rev. Wm. McCartan to any time for the establishing these charities,”“these charities,” of course, meaning those previously declared; and it is said that the use of these words stamps them all with the character of charity in the legal sense. No doubt the testatrix thought that all the purposes mentioned were charities, but did she use the word in its legal sense? Many people would describe any gift to a monastery as a charitable gift. This case is different from In re Douglas ; Obert v. Barrow, 35 Ch. D. 472, on which Mr. Brown relied. There were very strong indications that the testatrix referred to charities in the legal sense. She directed that for the payment of certain legacies of a non-charitable kind recourse should be had to such part of her personal estate as could not lawfully be appropriated to the charitable bequests thereinafter made. That showed an acquaintance with the fact that some charities are not of a legal character. Then she directed that out of such part of her estate as could lawfully be applied to charitable purposes certain charitable legacies should be paid to certain societies and institutions which the Court held to be charitable; the testatrix marshalled her assets so as to leave her pure personal estate available for payment of her charitable lega *199 cies; she then gave the residue of that portion of her estate which might be appropriated for charitable purposes to such charities and in such shares as Lord Shaftesbury should nominate. It was argued that this final gift was bad, and that the residue did not pass under it, on the ground that the money, or part of it, might be applied to any object charitable in the conventional sense, but not in the legal sense, and, therefore, that the trust could not be enforced by the Court. It was, however, held by the Court of Appeal that the societies and institutions referred to in the will were good legal charities. This decision was arrived at by a consideration of the whole will, especially of the provisions for the marshalling of the assets so as to protect the charities, which satisfied the Court that the overriding idea of the testatrix was charity in the legal sense. In this present case there is nothing to show whether, in providing for the establishment of a monastery, the testatrix was actuated by a purpose of charity in the legal sense and not by a merely pious one. Primâ facie a monastery (leaving out of consideration altogether the penal clauses of the Catholic Emancipation Act) is not charitable, whether a monastery for men or for women; and no one could say that if Rev. William McCartan had established a monastery of Carmelite Nuns, not a charitable institution in the legal sense, he would have disobeyed the wishes of the testatrix, for there are no indications, as they were in Re Douglas, 35 Ch. D. 472, that her overriding intention was charity in the legal sense. In Hood v. Attorney-General, [1897] 1 Ch. 518; (1899) A. C. 309, a testator declared that his residuary estate, or so much thereof as should be legally applicable to charitable purposes, should be transferred to special trustees in trust, to apply the income, or any portion of the capital, in grants for or towards the purchase of advowsons or presentations, or in contributing to the erection, improvement or endowment of churches, chapels or schools, or in paying or contributing to the salaries or incomes of rectors, vicars, or incumbents, masters or teachers, on certain conditions framed with a view to promote true Protestant and Church of England principles of an evangelical character. It was admitted that all the testator’s objects, save the purchase of advowsons and presentations, were charitable; and it was contended that on the true construction of the whole will that such purchase was also charitable. The House of Lords held that the purchase of advowsons and presentations was not a charity, and that the whole gift failed on the principle laid down in Morice v. Bishop of Durham (9 Ves. 399, 10 Ves, 522). It was contended in Hood v. Attorney-General that the testator manifested an overriding charitable intention, which controlled all the bequests, but that contention did not prevail. The case is strongly in point here, because the part of the estate which was appropriated to the alleged charitable trusts (including that of the purchase of advowsons) was only what was legally applicable to charitable purposes; the testator evidently thought that the purchase of advowsons was a charitable purpose, but that did not make it one in law, as Romer, J., pointed out. It is the same in the present case. The testatrix spoke of the objects of her bounty as charities. and she thought they were charities, but that did not make them charities; and where a bequest is for charitable purposes and also for purposes of an indefinite character, not necessarily charitable, and there is no apportionment of the bequest made in the will, so that the whole might be applied for either purpose. the whole bequest is void. In this case the objects of Anna Magennis’s bounty was even more indefinite than those mentioned in the will of the testator in Hood v. Attorney-General ; I, therefore, hold that they are invalid, and that the whole property went absolutely to Rev. William McCartan. The judgment will contain a declaration that the trust for establishing a monastery or other religious, ecclesiastical or charitable institution which Rev. William McCartan in his absolute discretion should think fit, or partly for such purpose or purposes and partly for Masses, is void; and that the residuary, real and personal estate of the testatrix passed to Rev. William McCartan absolutely. The claim for the administration of the estate of Anna Magennis will be dismissed. As to the claim for the administration of the trusts of the will of Rev. William McCartan, there will be a declaration that it appears that the trusts declared by his will are being properly administered, no order is necessary at present. As the plaintiffs have failed in their claim against the estate of Anna Magennis, no costs can be given out of her assets, but as the action is equally concerned with the estate of Rev. William McCartan, I will declare all parties entitled to their costs out of that estate.
In the Matter of the Trusts of the Will of Joseph Deighton, deceased
Reddy and Another v Fitzmaurice and Others
High Court
5 May 1952
[1952] 86 I.L.T.R 127
Dixon J.
The will of the deceased in this case, after providing for some pecuniary legacies and for an annuity to his widow and for other matters which need not be set out, directed the trustees during the widowhood of his wife to accumulate and invest the surplus income of the estate. It then provided for a number of pecuniary legacies upon the death or re-marriage of his wife (whichever event should first happen). All the donees under this provision were probably charitable, some of them clearly were; and it was on this clause that a number of the questions in the present case had arisen. They fell for decision now by reason of the widow, who did not remarry, having died.
The first question to be decided arose on the terms of paragraph (e) of this clause (clause 12) which was as follows:— “If my trustees shall in their absolute and uncontrolled discretion consider it wise and judicious to pay to the trustee or trustees for the time being of the Deighton Memorial Hall, Carlow, such sum not exceeding £600 as will be sufficient to carry out the following work namely raising the existing side wing of the said Hall sufficiently to provide apartments over the Hall with entrance from the existing reading-room one apartment to be suitable for a billiard room and another for a museum and committee room and two or more other rooms for such purposes as the said trustees shall think fit and improving the steps, railing and platform at the street entrance of the said Hall and repairing and improving any other portion of the said Hall (in accordance with the plans and estimates for such work to be obtained by my trustees at the expense of my estate before they exercise their dis *131 cretion as to the propriety of expending the said sum up to £600). And if my trustees decide that the said sum of £600 shall be expended as aforesaid then as soon as the said works have been completed or if my trustees are satisfied that the same will be completed within a reasonable time they may, should they think fit, pay over the said sum of £600 to the trustees of the said Hall and may pay to such trustees of the said Hall the further sum of £400 upon trust to invest the same and apply the income thereof for repairing and improving the said Hall.”
It appeared that, while a billiard room and museum and one other room could be constructed, it would be difficult, if not impossible, to construct the “two or more rooms” contemplated by the testator; but, in any event, the sum of £600 would be totally inadequate for the work specified. Accordingly, the trustees of the Hall could not undertake the work within the figure of £600, and the question arose whether the bequest had failed and, if so, how should the money and the £400 contingent on it be dealt with.
On the first aspect of this question, it had been argued that the works specified should be made disjunctively or as alternatives. It would be seen that three categories of work were specified. The first—which might be called the addition to the Hall—was fairly specific in character. The second—improving the steps, railing and platform at the street entrance—was less precise; while the third—repairing and improving any other portion of the Hall—was very indefinite. It was argued from this lack of certainty that it could never be ascertained or certified that the required works had been completed, while it was a necessary condition of the legacy, if it were not read disjunctively, that all three categories of work should be carried out. This difficulty would seem to be met by the circumstances that the discretion given to the trustees of the will extended to approving of the plans and, therefore, of the nature and type of the work within the general indications of the will. The attractiveness of the proposition on behalf of the trustees of the Hall arose from the fact that there was an alteration of the Hall which could be carried out within the prescribed limit and which would be an improvement of great convenience and benefit. To this, must be added the evident circumstance that the testator wished to benefit the Hall which was, in fact, his own foundation and called after him. It was, however, a strong step to read expressions which were grammatically conjunctive as disjunctive; but it would be done where necessary to give effect to the intention: Jackson v. Jackson 1 Ves. Sen. 217. In the present case, however, the words used were quite clear and unambiguous and did not give rise to any grammatical or constructional difficulty or obscurity; while there was nothing to indicate that the testator intended the categories to be alternative. The disparity between them in nature and probable cost suggested the contrary; and it seemed a more reasonable construction that he was primarily concerned with the building of the addition to the Hall and that the other works were specified to meet the event of the addition not exhausting the whole of the £600. Apart from its being put first, the importance of the addition to his mind was shown by the subsequent provision in the will bequeathing coins, portraits and other objects for the purposes of the museum. That bequest was conditional on his trustees deciding “that the addition hereinbefore mentioned to the Deighton Memorial Hall shall be carried out.”
According to “Jarman on Wills” (9th ed. p. 2147), the course contended for might be adopted “where warranted by the immediate context or the general scheme of the will; but not merely on a conjectural hypothesis of the testator’s intention, however reasonable, in opposition to the plain and obvious sense of the language of the instrument.” Adopting that approach, Dixon, J., thought it was impossible to read the provision under consideration as disjunctive. Accordingly, the bequest must be regarded as having failed in the same way as if the trustees of the Hall had disclaimed the gift or the trustees of the will had decided against applying the money in the manner indicated. It had been suggested, in the correspondence exhibited, that the £600 would have been inadequate even at the date of the testator’s will (12th October, 1938), but the learned judge said that he had no evidence of this, and even if it were so, he did not think it would affect the question of construction of the will or prevent a failure of the bequest in the sense he had indicated.
Before being able to decide as to the ultimate fate of the amount involved, his Lordship said that it was necessary to consider two subsequent clauses in the will, each purporting to deal with residue. By clause 14 of the will, the testator devised and bequeathed all the residue of his property and investments therefor, including the surplus income accumulations, in equal shares to nine donees. Three of these donees were individuals and private persons, the rest were named charitable institutions. The clause further provided that, if any of the three in *132 dividuals should predecease the testator, the share of the individual so dying should go to the other residuary legatees and devisees in equal shares. Clause 18 provided as follows: “In case of failure (if any) of any charitable trust or provision aforesaid I appoint the Right Reverend the Lord Bishop of Ferns and Leighlin to be my residuary devisee and legatee.”
Clause 14 was a normal residuary clause. Clause 18 was drafted in the form of a conditional or contingent residuary clause; and, at first sight, there seemed a possibility of conflict or inconsistency between them. That conflict was, however, more apparent than real. If clause 18 were to be given its literal meaning, it would mean that, if there were a failure of any charitable trust or provision—however comparatively slight or unimportant—clause 14 would be superseded and clause 18 would be the only effective residuary clause. Nothing in the will or in the surrounding circumstances so far as they were known to the learned judge, suggested any reason why the testator should have intended that illogical result; and, if clause 18 was capable of an alternative meaning that was more intelligible and permitted both clauses to have some operation, he thought that he should give it that meaning. Such an alternative meaning was that it was only intended to operate in respect of any charitable trust or provision that failed and, accordingly, the property affected by such trust or provision would be excluded from the residue dealt with by clause 14.
A further point that arose on clause 18 was the sense in which the testator used the word “failure”. It was suggested that the meaning of the word must be limited to a failure ab initio (as by illegality) or, alternatively, an ultimate failure; but the word was used in an unqualified way, and not necessarily in any limited legal sense, and the learned judge saw no reason for not giving it its proper, ordinary sense of any provision (of the type indicated) failing to operate or become effective for any reason.
Again, it might be that the testator had used the word “charitable” in a wide, nonlegal sense, as indicating the provisions which, in the context of his will, he might be presumed to have regarded as charitable. That point, however, could only be material in the event of there being some relevant provision which was not charitable in the legal sense.
There was little doubt that the Deighton Memorial was a charity in the legal sense—his Lordship did not think that the contrary had been suggested by any party. It was formerly portion of the old Court House of Carlow. In the year 1909, it was purchased by the testator and renovated by him at his own expense. By deed of conveyance of 12th July, 1909, it was conveyed to the then Incumbent, Churchwardens and Select Vestry of the Parish of Carlow to hold unto and to the use of them and their successors in connection with the Church of Ireland, in fee simple, and it was thereby declared that it should be held in trust for the Parish of Carlow in connection with the Church of Ireland and to the intent that it might be used as a Parochial Hall for the said Parish in connection with the said Church and not otherwise. Since that date, the Hall had been used in conformity with that trust and strictly in connection with the activities of the Church of Ireland in Carlow. The select Vestry held its meetings in the building, and bodies which used the Hall free of charge were the Young People’s Union, the Mother’s Union, the Girl Guides and Boy Scouts, and the Parish Sunday School. Free accommodation was provided for the Sexton of the Carlow Parish Church, which prevented complete exemption from rates. The Church of Ireland Diocesan Council of Leighlin and the Protestant Orphan Society had the use of the Hall for their meetings, paying respectively £10 and £1 annually. Social events—such as dances, whist drives, concerts—were only patronised by members of the Church of Ireland on invitation. Generally, there was no charge for admission, and the small profit on charges for supper, like other receipts, went to the expenses and upkeep of the Hall. Badminton and Table Tennis Clubs also used the Hall and made a contribution towards the cost of the light and fuel used by them.
In these circumstances, the cases of Clancy v. Commissioners of Valuation [1911] 2 I. R. 173 and In re McNamara; Coe v. Beale [1943] I. R. 372, were very much in point, and Dixon, J., had no doubt that the bequests to or for the benefit of the Deighton Memorial Hall were valid charitable bequests. These bequests had, however, failed—that of the £600 by reason of having proved impractical, and those of the £400 and the coins and other articles as being contingent on the bequest of £600 taking effect. The question arose then whether these bequests could and should be applied cy-près or whether they passed under clause 18. In considering this question, his Lordship would assume for the moment that the discretion given to the trustees of the will as to the application of the £600 would be no impediment to either disposition. *133
Before the question of a cy-près application could arise, his Lordship said that he would have to be satisfied that the case would be a proper one for the application of the doctrine, that is, that there was a general charitable intention in the sense in which that phrase was used in the authorities. That sense had been expressed rather widely in some of the cases—too widely perhaps, in the light of most of the instances of the application of the principle. An example of the wide statement appeared in Mayor of Lyons v. Advocate-General of Bengal (1876) 1 App. Cas. 91 at p. 113 in the dictum that “the Court treats charity in the abstract as the substance of the gift, and the particular disposition as the mode, so that in the eye of the Court the gift, notwithstanding the particular disposition may not be capable of execution, subsists as a legacy which never fails and cannot lapse.” This statement seemed to be based on a rather literal reading of a passage quoted from Lord Eldon in Mills v. Farmer (1815) 19 Ves. 486. A narrower definition of the doctrine, and, Dixon, J., felt, a more accurate and intelligible one, appeared in the judgment of Kay, J., in Briscoe v. Jackson (1881) 35 Ch. D. 460 at p. 463 He (Kay, J.) said there that there is a “general intention of charity if you do see a general intention of benefitting a certain class or number of persons who come within the ordinary definitions of objects of charity, and you find that the particular mode that the testator has contemplated of doing this cannot be carried out and you are convinced that the mode is not so essential that you cannot separate the intention of charity from that particular mode.” Applying that to the present case, it seemed clear to Dixon, J., that the testator had the general charitable intention of benefitting the Deighton Memorial Hall and the objects and persons served thereby—all of which he regarded as charitable in the legal sense—in a particular mode, namely by the execution of specific works. Whether he could say that the mode was not essential to the intention was a matter of more difficulty—particularly in view of the wide discretion given to the trustees in relation to the specific works—but the authorities had gone rather far in this respect. Thus, in In re Robinson, Wright v. Tugwell [1923] 2 Ch. 332, the condition as to wearing the black gown in the pulpit, expressed by the testatrix to be an “abiding condition” was treated as subsidiary (and, therefore, capable of being dispensed with) to the main charitable object of endowing an evangelical church. In re Richardsons Will, (1888) 58 L. T. 45—cited in that case and to which reference would later be made—might also be in point in this connection.
Accordingly, the learned judge thought that there was a case for the application of the cy-près doctrine, unless it was excluded by the provisions of clause 18. This clause, as already pointed out, was in terms a residuary clause but he had indicated his view that it was in effect a gift, that is, a gift over, not of any residue, ascertained or unascertained, but of any specific charitable bequest which failed. The gift over was to the Lord Bishop of Ferns and Leighlin, and might be, or might have been intended to be, a charitable gift, but the point was not so material as it would have been if the gift were an ordinary residuary one. The character of the donee, or the capacity in which he took the gift, might, of course, be material if the intention of the testator was doubtful. The proper approach to the question seemed to him to be that laid down by the Judicial Committee of the Privy Council in the case, already cited, of Mayor of Lyons v. Advocate-General of Bengal, in the following passage (at p. 115): “Their Lordships, therefore, are brought to the conclusion that the jurisdiction of the Court to act on the cy-près doctrine upon the failure of a specific charitable bequest arises whether the residue be given to charity or not, unless upon the construction of the will a direction can be implied that the bequest, if it fails, should go to the residue.” In that case, the frame of the residuary clause was peculiar and the Committee had no difficulty in finding that there was no implication. This matter (and the form of the residuary clause) were dealt with (at p. 116) in these words: “… the peculiar frame and language of it cannot be disregarded, and from these it may be inferred that what was present to the testator’s mind, and what alone he intended to dispose of, was a residue after the funds for these charities had been provided and set apart. It seems, therefore, to their Lordships, that there is not such a necessary inference of intention to be found in the terms and provisions of the will as is required to raise the implication of a bequest over by the testator of these legacies, upon the failure of the particular charities.”
That case, therefore, had been decided as one in which there was, in effect, not even a residuary clause, much less a gift over. In the present case, the will did not have to be scrutinised to see if there were any implication of an intention to exclude the application of the cy-près doctrine, because there was an express gift over, and a direction as to what was to happen, in the precise event of the failure of any charitable provision. The only *134 doubt that might arise was as to the sense in which the testator used the word “failure” and the learned judge had already given his view that there was no indication of its being used in a qualified or limited sense.
Some cases were cited to establish the proposition that a provision such as that in clause 18 would not be effectual to prevent the application of the cy-près doctrine in a proper case; but Dixon, J., did not think any of them really apposite. Thus, in Biscoe v. Jackson 35 Ch. D. 460, there was neither a gift over nor a residuary clause. In the case of In re Upton Warren (1833) 1 M. & K. 410, there was a gift over to a charity in the event of the annual sum, provided for the apprenticeship fee of a boy to be chosen out of a particular parish, not being claimed. If, however, a boy was not chosen out of that parish, he was to be chosen out of certain other parishes. The Vice-Chancellor (at p. 412) took the view that Upton Warren was the primary object of the donor’s bounty and that the two substituted parishes had no notice of the lapses and of the rights that accrued to them on that event and he referred it to the Master to consider a scheme. The appeal from this order was dismissed by the Lord Chancellor in a judgment that did not deal with the particular point. The case was, therefore, hardly authority for more than the proposition that the conditions for the operation of the gift over had not arisen and that the application by the charity entitled under the gift over was premature. The case of In re Richardson’s Will, 58 L. T. 45, had been already mentioned. There, there was a gift over if the charitable donee of the prior gift should decline to construct the two “tubular” lifeboats, one of which was to kept at Deal, for which the gift was provided. The donee—the Royal National Lifeboat Institution—accepted the gift and conditions. It was not found practicable to keep a tubular lifeboat at Deal but one was required at New Brighton and the Institution applied for permission to keep it there. The only note of the judgment is to the effect that “Chitty, J. said that the case was one to which the cy-près doctrine was applicable and made an order as asked.” There was no suggestion in the report of the usual feature of a cy-près application, namely, a scheme being settled. The case seemed to Dixon, J., to be equally explicable as an instance—as was the “black gown” case of In re Robinson, Wright v. Tugwell, already cited—of a condition attached to a gift being treated as not essential to the gift and being capable of being waived or disregarded. On that view, the gift in neither case could be said to have failed. Similarly, in In re Cunningham, Dulcken v. Cunningham [1914] 1 Ch. 427, there was no failure, as the gift over was only to take effect “after the final expiration of the aforesaid trusts”, and that event was held not to have happened: see p. 434.
The latest case cited, in this connection, was In re McGuire, Gyles v. Glynn [1941] I. R. 33, in which Black, J., gave a very helpful review of the cases and principles bearing on the cy-près doctrine. The case, however, did not assist on the present question, for the reason that the donee named in the gift over had renounced all claims under the will (see p. 36).
Accordingly, Dixon, J., said that he had arrived at the view that the bequests now in question passed under clause 18. It was true that the trustees of the will were given an apparently absolute discretion as to whether the £600 should be applied at all, but he thought he must regard the present failure, as he would probably have regarded a refusal to apply the money by the trustees, as within the contemplation of the testator in inserting clause 18 in his will. Equally, the learned judge thought the consequential lapse of the bequest of the £400 and of the bequest of the coins and other chattels must be regarded as within such contemplation. There was a slight qualification that should be noted as to the objects designated or intended for the museum. Clause 13, which dealt with this matter, divided the articles into two classes. The first class were those bequeathed to form the nucleus of a museum, if the addition to the Hall were built. The second class was defined in the next sentence which read — “And if my trustees shall think fit to also include in such gift the inlaid cabinet and bureau in the drawing room the bureau in the lounge and the roll top desk in the billiard-room respectively at Coolarne for the Museum and Committee room in the said Deighton Hall and also any other pictures and any of my books which my trustees may think fit for the purposes of the said Hall” The learned judge felt that this second class of objects should not be included in the property passing under clause 18.
Dixon, J., said that the next bequest that might conveniently be considered was that of £1,000 to each of five named hospitals “upon condition that each such hospital who shall accept such bequest shall set apart and maintain in perpetuity a bed therein to be called “the Deighton Bed” and distinguished by the name thereof engraved upon a brass plate and affixed at the head of the bed and shall at all times if so required maintain and medically treat in such hospital without charge at least one patient from the town or county of *135 Carlow to be recommended by the Incumbent and People’s Churchwarden for the time being of St. Mary’s Parish, Carlow, and so that such patient shall if convenient occupy such bed but so that if the said bed be already occupied another shall be provided instead.”
This bequest seemed to him to be a good charitable bequest and not invalidated by any clement of uncertainty, impossibility or illegality. The difficulty had, however, arisen that three of the named hospitals had, under their constitutions or for other good reason, found themselves unable to accept the bequest on the conditions laid down by the testator. The object and conditions of the bequest were too clear and specific to be disregarded, and the bequests to these three hospitals must be regarded as having lapsed or failed. There had been some argument as to whether the condition was precedent or subsequent; but the true view seemed to be that both elements were involved. It was a condition precedent that the charitable institution should accept the bequest on the specified conditions; the performance of those conditions, if the gift were accepted, would be a condition subsequent. The testator only made the gift to “each hospital who shall accept such bequest.” The legacies were, therefore, in the same position as if the legatees had disclaimed. The cases, amongst those cited, which were most analogous seemed to be In re Welstead (1858) 25 Beav. 612; Re Emson, Grain v. Grain (1905) 93 L. T. 104; Attorney-General v. Christ’s Hospital (1834) 3 Bro. C. C., 1 Russ. & M. 626. It was possible, he said, that—as in the case of the Deighton Memorial Hall—there would be a case for the cy-près application of these bequests which had failed, were it not for clause 18. For the same reasons, however, he must hold that they passed under that clause.
The next bequest to be considered followed immediately after the one just dealt with. It was “to the Maternity Hospital, Holles St., Dublin, £1,000 in memory of my late friend Sir Andrew Horne for the purpose of expending same in or towards the erection of a new nurses’ home to be attached to or used in connection with the last mentioned hospital within four years (from the death or re-marriage of my wife) and if not erected by that time then for the general purposes of the said last mentioned hospital on like condition as to a bed in the other hospitals aforesaid.” The four years mentioned had not yet expired—his wife having died in August 1949—but the Governors of the hospital had been advised that it would not be within their powers to comply with the condition as to the maintenance of a bed.
The position as to a nurses’ home was that, prior to the date of the death of the testator’s wife, the Governors had acquired two houses near the hospital which were at present being used as a nurses’ home. A site adjoining the hospital had recently been acquired for the purpose of an additional wing and a nurses’ home would be included in the new wing. Plans had been prepared but the proposed extension had not yet been sanctioned by the appropriate Government Department and it was impossible to say with any certainty, when the work would be commenced or completed. The Governors had paid nearly £2,500 for the two houses mentioned and, over the years 1942 to 1945 had spent about £7,000 on the extensive alterations required to convert them into a nurses’ home. The testator died in January 1932. The question was raised whether these matters could be regarded as a compliance with the condition of the bequest. There was no difficulty occasioned by the use of the word “erection” by the testator, as this word was sufficiently wide in its ordinary meaning to include the setting up or establishing of a nurses’ home by the acquisition and conversion of existing buildings. Neither was much difficulty caused by the time limit of four years from the death of his wife, as this was clearly intended as a posterior limit for the purpose of avoiding undue delay in the administration and distribution of the estate. There was no anterior time limit for the commencement or completion of the erection The object of the testator was to provide or facilitate the provision of a nurses’ home and this object had been achieved independently of the bequest. It was true that the cost of the erection had, presumably, been paid, but Dixon, J., did not see any difference in principle between a contribution to the cost before the event and a recoupment of part of the cost after the event. He thought, therefore, that the present belonged to the class of cases, exemplified by Re Park, Bott v. Chester [1910] 2 Ch. 322, where the donee was held to be absolved from a condition which had been performed, or substantially performed, before the time of qualifying for the gift had arrived. He felt that this view accorded best with the intention of the testator so far as he could gather it from the will.
Difficult questions arose and remained to be decided on the interpretation of clause 18. The important questions seemed to be as to when the clause was intended to take effect, whether the Lord Bishop referred to was a persona designata or the holder of an office, *136 and whether the Bishop took beneficially or on any, and if so, on what trusts These were separate questions, but Dixon, J., found it impossible to regard them as independent, as it seemed to him that the answer to any one of them must throw light on what should be the proper answers to the others, while the answers to all three should be consistent with one another and give a reasonable and intelligible meaning to the testator’s words and one that would most nearly appear to carry out his intentions. These intentions must be gathered not only from the words used but also from the will as a whole and the surrounding circumstances.
An outstanding fact about the present will was that it—in the words of Black, J., in In re McGuire, Gyles v. Glynn (at p. 47)—“is redolent of disposition as well as predisposition in favour of charity.” It must also be of some significance that, as Dixon, J., had held, the testator was not content to allow any charitable gifts that failed to fall into the ordinary residue but provided a special destination for them. There must have been some object in adopting this course and, it seemed to him, an object other than the personal benefit of the named legatee, as this could easily have been provided for otherwise and more clearly, if intended. Again, it was of significance that clause 18, although in form residuary, dealt only with and was limited to the charitable gifts and provisions. This again suggested that the testator had some special intention as to them. In view of these considerations, the learned judge said that he approached the consideration of clause 18 with, if not a preconception, at least a leaning towards a particular construction; but, if he found a considerable measure of support for this construction in clause 18 and nothing completely inconsistent with it, he thought that the approach would become legitimate. The paramount enquiry was to find the intention of the testator, and to give effect to it so far as possible, rather than to apply too strictly rules of interpretation which are appropriate to deeds but are less reliable guides to the intention of a testator.
Normally, a will must be taken as speaking from the date of the testator’s death, but this was only so if the contrary did not appear. The cases in which the contrary might appear were laid down in Hamilton v. Ritchie [1894] A. C. 310 at p. 313, as being where to give effect to the provision from that date would disturb any of the other provisions in the will or where the testator has clearly indicated, either by express words or by plain implication, that he did not intend it to operate until a later period Dixon, J., thought there was such a plain implication in the present case for several reasons. In the first place, clause 18 was contingent and commenced “in case of failure (if any) of any charitable trust or provision aforesaid.” So far, therefore, as there was any implied reference to time, it was the time of the failure. It was to be noted, in this respect, that the context of the passage just quoted from Hamilton v. Ritchie was that of an unqualified bequest containing no reference to the time at which it was to operate. Again, some of the charitable trusts and provisions were only to take effect after one or two years from the testator’s death, while most of them were not to take effect until after his wife’s death For this and other reasons, there could, thus, be failures at different times.
These reasons would, of course, lose most, if not all of their force if the donee under the clause were a named individual, but they retained their force and were somewhat reinforced when it was found that the donee was by no means clearly a named individual. In In re Laffan and Downes’ Contract [1897] 1 I. R. 469; 49 I. L. T. R. 8, the Master of the Rolls took the view that the Superioress of a convent who was to take on the death of the survivor of two life tenants was a persona designata and meant the Superioress at the death of the testator. This decision related to land, but it is not easy to reconcile it with Corcoran v. O’Kane [1913] 1 I. R. 1, where, after giving a life estate to his wife, the testator provided that at his wife’s demise the property should go to the parish priest of Urney, and this was treated as meaning the person who happened to be parish priest at the date of the death of the wife. In re Laffan and Downes’ Contract was not referred to Dixon, J., was of opinion that neither case helped very much with the context with which he had to deal.
One further curious feature of clause 18 was that the Bishop was only described by reference to the two dioceses of Ferns and Leighlin, but the diocese of Ferns had been united to the dioceses of Ossory since 1835, while Leighlin had been united to Ferns from 1597. The fact that only two of three dioceses were named, and that the testator must have been well aware that the full and correct title of the bishopric was that of Ossory, Ferns and Leighlin, suggested that, assuming no personal benefit was intended, no geographical limit on the purposes for which the bequest was to be used was intended. The diocese of Leighlin included the town of Carlow and portion of the County of Carlow; and it was clear from the will that the testator principally intended to benefit inhabitants of the town of Carlow and, to a lesser extent, of the County of Carlow. The *137 unnamed diocese of Ossory included portions of Counties Kilkenny, Leix and Offaly.
It was true that, unlike most of the cases where the holder of an office at a particular time or from time to time had been held to be designated, there was no mention here of “successors” or “for the time being” or similar words or expressions. Thornber v. Wilson (1855) 3 Drew. 245, was, perhaps, nearest to the present case in this respect. There, the third devise considered was to the officiating minister of the Roman Catholic Chapel at Kendal of the rents and profits of certain lands for seven years. As to it the Vice-Chancellor said (at p. 250):— “As to the third devise, that, if it stood alone, might be more questionable; but I think, on the whole, it was meant to be a devise, not to the then officiating minister personally, but to the person who should be from time to time, during seven years, the minister.” The mention of the devise not standing alone was a reference to the terms of the other devises in the will, which had mentioned “successors” and had more clearly indicated their non-beneficial character. In the present case, clause 18 had to be construed not only by its own terms but in the context of the whole will. The case of Corcoran v. O’Kane already mentioned, was also relevant in the present connection.
The consideration of the fourth devise in Thornber v. Wilson was held over pending the taking of accounts. It was a devise, subject to the said term of seven years, “to the then minister of the said Roman Catholic Chapel at Kendal.” When it came on for consideration, the Vice-Chancellor said (4 Drew 350 at p. 351). “The question whether there is a charitable gift does not depend on the fact that there is a gift to an individual describing him as a minister; but on this, whether the testator designates the individual as such, or as being the person who happens to fill the office. A gift to a minister as such is a charitable bequest. A gift to the person now minister would have been different, the testator might be unacquainted with his name, and so only be capable of describing him by his office.”
It was, said his Lordship, at least doubtful whether a testator should be presumed to intend a personal benefit to a person of whom he did not even know the name, but the present case was not complicated by any such consideration. The testator must have been well aware of the identity of the Bishop at the date he made his will and may well have been acquainted with him. If he intended a personal benefit to him, Dixon, J., felt that he would have named him. In fact, the same individual held the office at the date of the testator’s death, but the testator could not, of course, be aware that this would be so. If, as seemed clear, he did not intend to benefit the Bishop whom he may have known, the learned judge found it hard to believe that he could have intended a personal benefit to whoever might happen to be Bishop at the date of his death. Clauson, J., had referred to the improbability of such an occurrence, in In re Ray’s Will Trusts [1936] 1 Ch. 520, at p. 524, in these words:—“But such a bequest would be a very extraordinary and remarkable bequest to make, because it would be a bequest which would give a personal benefit to someone whose personality is, as I have put it, ex hypothesi unknown to the testator—a very odd gift.”
If, therefore, the idea of a personal benefit, related by Clauson, J., to the “personality” of the donee, seemed to be excluded, the donee must necessarily have been intended to take in some fiduciary capacity and the dominant consideration for a testator would be to find a person whose character, integrity and ability would ensure the carrying out of his wishes. What better person could possibly be found, with these qualities, than the Bishop, at any given time, of the Church to which he belonged and for the locality in which he wished his benevolence to operate?
Finally, if a trust was to be implied—as Dixon, J., thought it must be—the balance of convenience and probability was heavily on the side of the testator intending his wishes to be carried out by the Bishop for the time being rather than taking the risk—as might happen on the alternative view—of their being left to be carried out by some person connected only with the trustee intended by legal representation.
Dixon, J., said that he had arrived, therefore, at the view that clause 18 was intended to be, and might be, read as referring to the Lord Bishop of Ferns and Leighlin for the time being and his successors. On this view, the case seemed to him to be covered by the judgment of Maguire, C.J., in Halpin v. Hannon (1948) 82 I. L. T. R. 74 at p. 75, where he 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 and Reid v. Dorian (1875) I. R. 11 Ch. 292, following the decision in Thornber v. Wilson 3 Drew. 245. “That case differed from the present by the addition to the bequest to the Bishop or his successor of the words ‘for such purposes in the diocese as he wishes,’ but these words were held not to extend the objects to *138 non-charitable ones. The present case belonged to that class, referred to by Black, J., in Halpin v. Hannon at p. 77, where the testator had not expressly and clearly indicated the scope of his objects. Of this class, Black, J., there said:—“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, and frustrating his wishes pro tante, rather than resorting to the other alternative of treating the entire gift as void for uncertainty and frustrating his wishes in toto.” The learned judge had then cited examples of the application of the principle. The principle was one which seemed to Dixon, J., applicable to the present case. The judgment from which he had quoted last was, of course, a dissenting one on the construction of the particular bequest in question, but he did not think anything in the decision of the Court or in the judgments of the other members raised any doubt on its being a correct statement of the position.
The decision in Halpin v. Hannon had adopted the view taken in In re Garrard, Gordon v. Craigie [1907] 1 Ch. 382 in a somewhat similar context. The latter case had been followed and applied by Jenkins, J., in In re Flinn, Public Trustee v. Flinn [1948] 1 Ch. 241, which was decided a few months after Halpin v. Hannon but without any reference to the latter, the report of it probably not being then available. In both these English cases, the trusts had been declared to be valid charitable trusts “for ecclesiastical purposes” In these cases, however, the gifts under consideration were original and distinct gifts and not, as was the one Dixon, J., was considering at the moment, contingent or substitutional. There was no indication of any wider ambit of the charitable intention than could be gathered from the ecclesiastical character of the donees. Here, while the donee had an ecclesiastical status, the learned judge thought that the relevance of that status was exhausted by its having been the reason for the testator choosing the person having that status as his trustee; and he was made the recipient of the property the subject of any charitable provision or trust that might fail. Accordingly, he thought that the trusts extended to any charitable purpose within the dioceses of Ferns and Leighlin to which the Lord Bishop might see fit to apply the property coming to him by virtue of clause 18. In this respect, Halpin v. Hannon belonged to the same category as the two English cases referred to earlier, and was distinguishable on the same ground. In the result, however, there did not seem to have been any limitation put on the scope of the charitable purposes in that case. The Chief Justice did restrict his decision by stating that the ordinary and very wide language of the words used should be cut down so as to confine the gift to episcopal purposes within the diocese; but the other two of the majority judgments were not expressly so restricted. The late President of the High Court (Gavan Duffy, P.) clearly did not regard the decision of the Court as being so limited, since his order (of 23rd March, 1948), implementing the decision, ordered the residuary estate to be handed over to the then Bishop of the diocese of Limerick “on his undertaking to apply it for such charitable purposes in the said diocese as he thinks fit.” Dixon, J., said that his present view would therefore accord with the result of Halpin v. Hannon. It might be observed that, while the Lord Bishop of Ferns and Leighlin was quite free to apply the property coming to him so far as possible in a manner analogous to that intended by the testator, he was not legally bound to do so.
The questions raised on the construction of the will of the deceased could be answered in the light of the foregoing observations.
Kelly v Watters and Wogan
Very Reverend John Canon Kelly v John Joseph Watters and Mary Wogan
10 February 1928
[1928] 62 I.L.T.R 61
Meredith J.
Meredith, J. (after stating the facts).— This case raises some very interesting points. In the first place, with regard to the memorandum, it is quite clear that it was never communicated to the executors, and therefore I must disregard it. The law is clearly that there must be communication to and acceptance by the executor. The Vice-Chancellor in Riordan v. Banon, I. R. 10 Eq. 477, sums up the law when he says:—“The result of the cases appears to me to be that a testator cannot by his will reserve to himself the right of disposing subsequently of property by an instrument not executed as required by the statute, or by parol; but that when at the time of making his will he has formed the intention that a legacy thereby given shall be disposed of by the legatee in a particular manner, not thereby disclosed, but communicated to the legatee and assented to by him at or before the making of the will or probably, according to Moss v. Cooper, subsequently to the making of it, the Court will allow such trust to be proved by admission of the legatee or other parol evidence, and will, if it be legal, give effect to it.” Having, therefore, eliminated the memorandum, the next question is whether the verbal communications by the testator to the executor are admissible, should evidence in regard to the “poor relatives” be admitted or should it be confined to the general terms of the will as to charitable purposes, in which case the charitable purposes would be entirely undefined. In the case of In re Fleetwood, 15 Ch. Div. 594, there was a particular intention expressed and evidence was admitted to show what the particular intention was. This was followed in In re Huxtable, [1902] 1 Ch. 214, [1902] 2 Ch. 793, and In re Gardom (H. L.), 84 L. J. Ch. 749, and in the latter case it was decided that communication to one executor was sufficient. If, on the face of the will, there were no reference to a trust, then clearly conversations would be admissible to show a trust. Therefore I consider that they should be admissible in this case because it is clearly established that once they are admitted they must have the same force as if they were in the will, and therefore the Court will have regard to them in directing a scheme. Mr. Jellett has put forward precisely the same argument which was urged by counsel on behalf of the next-of-kin in the case of Mills v. Farmer, 1 Mer. 75. But I am satisfied on the authority of that case, Attorney-General v. Syderfen, 1 Vern. 224, and Commissioners of Charitable Donations and Bequests v. Sullivan, 1 D. & War. 501, that there is here a general charitable intent which the Court will direct to be carried out by a scheme. The Lord Chancellor in Commissioners of Charitable Donations and Bequests v. Sullivan says, at page 507, that “the case of Attorney-General v. Syderfen is clear authority for this, that the Court will rather incur a risk of misapplication than break in upon the great object of the testator.” The mode of carrying out the trust is dealt with in In re Pyne, [1903] 1 Ch. 83, where it was decided that where property is bequeathed to executors for charitable purposes and the objects are not specified or indefinite, the proper mode of carrying out the general charitable intention of the testator is by a scheme under the Court. The plaintiff will have carriage of the scheme.
Re Hollywood
Smyth v Attorney-General
High Court of Justice.
Chancery Division.
19 December 1917
[1918] 52 I.L.T.R 51
Barton J.
Originating summons for the construction of the will of Robert Hollywood. The will, so far as material, ran:—“I direct that the sum of £150 be invested and the income of same divided into three shares, two shares of which are to be given to the Belfast constable who secured the highest number of bona fide convictions for cruelty to animals in any one year, the other third share to be given to the constable whose record comes next, the presentation to be made by a presiding magistrate in open court. The constables of the Royal Society for Prevention of Cruelty to Animals, however, are not eligible to receive awards.” The testator devised the residue of his estate to several charities. The will was made on Sept. 16, 1913; the testator died on Aug. 7, 1916, and probate was granted on Sept. 29, 1916, to the Reverend Thomas Alexander Smyth, one of the executors. On Oct. 18, 1916, Mr. T. J. Smith, Commissioner of Police *51 for Belfast, wrote to the executor’s solicitor, in answer to inquiries:—
“Sirs,—Referring to your letter of 20th September last, I have to inform you that it would be contrary to the rules of the R.I.C. for a member of the Force to receive a pecuniary reward from an outside source for the performance of ordinary police work, and especially for the number of convictions obtained by him irrespective of the ability or intelligence shown in bringing the offenders to justice. If it be possible under the terms of the will to pay the income of the money in question to the Inspector-General, R.I.C., or to the Commissioner of Police, Belfast, to be distributed as the Inspector-General shall determine to men in Belfast who have done the best police work in the public interest in connection with the enforcement of the Protection of Animals Act, the Inspector-General will gladly undertake to administer the fund, but he must be at liberty to distribute the money as he sees fit to the men who have done the best police work, irrespective of the number of convictions. I am, &c.”
After a year had elapsed from testator’s death, a second letter was written to the police authorities asking for the names of the two constables who would be entitled under the gift, but the authorities refused any information.
Representation
J. M. Whitaker for the executor.
Devitt for the Attorney-General.
R. D. Megaw, E. J. M’Kean and C. Lavery for the charities interested in the residuary estate.
Barton, J., said he regretted very much that he could not give effect to the gift, as there was no general charitable intention shown in the will, and the testator indeed practically negatived any gift to the Royal Society for the Prevention of Cruelty to Animals. The gift itself was limited to a purpose which the Court cannot carry out, and therefore the gift failed. Three cases somewhat similar were—Attorney-General v. Vint, 3 De G. & Sm. 704; Attorney-General v. Glegg, Amb. 584, and Jemmit v. Verril, Amb. 585, note.
UK Cases
IRC v Baddeley
(1955) AC 572
VISCOUNT SIMONDS (on the public benefit issue): This brings me to another aspect of the case, which was argued at great length and to me at least presents the most difficult of the many difficult problems in this branch of the law. Suppose that, contrary to the view that I have expressed [in a part of his lord ship’s opinion not reproduced here]. the trust would be a valid charitable trust, if the beneficiaries were the community at large or a section of the community defined by some geographical limits, is it the less a valid trust if it is confined to members or potential members of a particular church within a limited geo graphical area?
The starting point of the argument must be, that this charity (if it be a charity) falls within the fourth class in Lord Macnaughten’s classification. It must therefore be a trust which is, to use the words of Sir Samuel Romilly in Morice v Bishop of Durham (1805) 1O Ves 522, 532, of ‘general public utility’, and the question is what these words mean. It is, indeed, an essential feature of all ‘charity’ in the legal sense that there must be in it some element of public benefit, whether the purpose is educational, reli gious or eleemosynary: see the recent case of Oppenheim v Tobacco Securities Trust Co. (1951] AC 297 [above], and, as I have said elsewhere, it is possible, particularly in view of the so-called ‘poor relations’ cases, the scope of which may one day have to be considered, that a different degree of public benefit is requisite according to the class in which the charity is said to fall. But it is said that if a charity falls within the fourth class, it must be for the benefit of the whole community or at least of all the inhabitants of a sufficient area.
LORD REID (dissenting): In Oppenheim’s case [1951] AC 297 [above] the trust was for the advancement of education, but the decision of this House was that it is not enough that the class of beneficiaries is numerous, it must also be a section of the community, and the ratio decidendi applies equally to a trust for the advancement of religion. So if … the members of a religious denomination do not constitute a section of the public (or the community) then a trust solely for the advancement of religion or of edu cation would not be a charitable trust if limited to members of a particular church. Of course, the appel lants do not contend that is right: they could not but admit that the members of a church are a section of the community for the purpose of such trusts. But they maintain that they cease to be a section of the community when it comes to trusts within the fourth class … the appellants cannot succeed on this argument unless that contention is sound.Poverty may be in a special position but otherwise I can see no justification in principle for holding that when dealing with one deed for one charitable purpose the members of the Methodist or any other church are a section of the community, but when dealing with another deed for a different charitable purpose they are only a fluctuating body of private individuals.
Ryan v Forrest
(1946) Ch 86 affirmed (1946) Ch 194, Court of Appeal
LORD GREENE MR: We are not dealing with a fund put up by outside persons, although, even if we were, I should on the authority of Re Compton [1945] Ch 123 feel constrained to hold that such a fund would not be a good charity. The point to my mind which really puts this case beyond reasonable doubt is the fact that a number of employees of this company, actuated by motives of self-help, agreed to a deduc tion from their wages to constitute a fund to be applied for their own benefit without any question of poverty coming into it. Such an arrangement seems to me to stamp the whole transaction as one hav ing a personal character, money put up by a number of people, not for the general benefit, but for their own individual benefit. I am not concerned to dispute the proposition that a fund put up for air raid dis tress in Coventry generally would be a good charitable gift. I have very little doubt that it would be.But there is all the difference in the world between such a fund and a fund put up by a dozen inhabitants of a street, or, it may be, a thousand employees of a firm, to provide for themselves out of the moneys subscribed by themselves some kind of immediate relief in case they suffered from an air raid.
MORTON LJ… there is no element of poverty in the present case. That, of course, does not prevent a trust from coming within the fourth head of Lord MacNaughten’s classification in Pemsel’s case [1891] AC 531, but the relevance of it in the present case is this: where poverty is essential in the qualification for benefits under a particular fund, there have been cases where trusts which would appear to be of a private nature have been held to be charitable. An example of this is the case of Spillerv Maude (1881) 32 ChD 158 n, which has been already mentioned. The reason, as was suggested by the Master of the Rolls in Re Compton [1945] Ch 123, may be that the relief of poverty is regarded as being in itself bene ficial to the community. That element being absent in the present case, the appellant cannot rely on these cases. Mr Upjohn has argued that the provision of relief for air raid distress should be elevated to the same position as trusts for the relief of poverty. No doubt the provision of relief for air raid distress is a most excellent object, and I should not myself doubt that a fund for the relief of air raid distress in Coventry was a fund held upon charitable trusts. But I do not feel inclined to extend the somewhat anomalous line of cases where poverty has been held to take a trust out of the category of a private trust and into the category of a trust which is charitable in the legal sense.
Re Resch’s WT
[1969] 1 AC 51
LORD WILBERFORCE: …A gift for the purposes of a hospital is prima facie a good charitable gift. This is now clearly established both in Australia and in England, not merely because of the use of the word ‘impotent’ in the preamble to 43 Eliz. c. 4, though the process of referring to the preamble is one often used for reassurance, but because the provision of medical care for the sick is, in modern times, accepted as a public benefit suitable to attract the privileges given to charitable institutions. This has been recognised in the High Court in Australia in Taylor v Taylor (1910) 10 CLR 218 and Kytherian Association of Queensland vSklavos (1958) 101 CLR 56: in England in In reSmith, deed [1962] 1 WLR763.
In spite of this general proposition, there may be certain hospitals, or categories of hospitals, which are not charitable institutions (see In re Smith, deed). Disqualifying indicia may be either that the hos pital is carried on commercially, i.e. with a view to making profits for private individuals, or that the benefits it provides are not for the public, or a sufficiently large class of the public to satisfy the neces sary tests of public character. Each class of objection is taken in the present case. As regards the first, it is accepted that the private hospital is not run for the profit, in any ordinary sense, of individuals. Moreover, if the purposes of the hospital are otherwise charitable, they do not lose this character merely because charges are made to the recipients of benefits-see Inland Revenue Commissioners v Falkirk Temperance Cafe Trust (1927) SC 261. Salvation Army /Victoria) Property Trust v Fern Tree Gully Corporation (1951) 85 CLR 159. But what is said is that surpluses are made and are used for the general purposes of the Sisters of Charity. This association, while in a broad sense philanthropic, has objects which may not be charitable in the legal sense. Furthermore its purposes, though stated in its ‘consti tutions’ are not limited by law, other than the canon law of the Roman Catholic Church, and under this, they are empowered, and may be obliged, to alter their purposes so as to include other objects which may not be strictly charitable.
Their Lordships do not consider it necessary to enter upon these latter considerations…The share of income given by the will must be devoted entirely to the purposes of the private hospital. The character, charitable or otherwise, of the general activities of the Sisters, is not therefore a material consideration.
Re Pinion (dec’d)
[1965] Ch 85
HARMAN LJ: Where a museum is concerned and the utility of the gift is brought in question it is, in my opinion, and herein I agree with the judge,essential to know at least something of the quality of the pro posed exhibits in order to judge whether they will be conductive to the education of the public. So I think with a public library, such a place if found to be devoted entirely to works of pornography or of a corrupting nature, would not be allowable. Here it is suggested that education in the fine arts is the object. For myself a reading of the will leads me rather to the view that the testator’s object was not to educate anyone,but to perpetuate his own name and the repute of his family, hence perhaps the direc tionthat the custodian should be a blood relation of his. However that may be, there isa strong body of evidence here that as a means of education this collection is worthless. The testator’s own paintings, of which there are over 50, are said by competent persons to be in an academic style and ‘atrociously bad’ and the other pictures without exception worthless. Even the so-called ‘Lely’ turns out to be a twentieth century copy.
Apart from pictures there is a haphazard assembly-it does not merit the name collection, for no
purpose emerges, no time nor style is illustrated-of furniture and objects of so-called ‘art’ about which expert opinion is unanimous that nothing beyond the third-rate is to be found. Indeed one of the experts expresses his surprise that so voracious a collector should not by hazard have picked up even one meritorious object. The most that skilful cross-examination extracted from the expert witnesses was that there were a dozen chairs which might perhaps be acceptable to a minor provincial museum and perhaps another dozen not altogether worthless, but two dozen chairs do not make a museum and they must, to accord with the will, be exhibited stifled by a large number of absolutely worthless pictures and objects.
It was said that thisisa matter of taste, and de gustibus non est disputandum, but here I agree with the judge that there is an accepted canon of taste on which the court must rely, for it has itself no judi cial knowledge of such matters, and the unanimous verdict of the experts isas I have stated.The judge with great hesitation concluded that there was that scintilla of merit which was sufficient to save the rest. I find myself on the other side of the line. I can conceive of no useful object to be served in foisting upon the public this mass of junk.It has neither public utility nor educative value. I would hold that the testator’s project ought not to be carried into effect and that his next-of-kin is entitled to the residue of his estate.
RUSSELL LJ: The first question for consideration is whether [counsel] for the Attorney-General, is correct in contending that the judge should not have received the expert evidence … on the aesthetic merits of the testator’s collection of objects and its tendency if exhibited to the public to promote or advance education in aesthetic appreciation. [Counsel] argued that the court could not inquire into such matters: that an exhibition to the public of a collection of objects such as these must be assumed to have that tendency. I cannot agree.
The mere fact that a person makes a gift of chattels to form a public museum cannot establish that its formation will have a tendency to advance education in aesthetic appreciation or in anything else. Inquiry must first be made, what are the chattels? Five hundred balls of string could not have that ten dency. Nor is the inquiry ended on finding that the chattels are household furniture, carpets, light fit tings, paintings, china and so forth: otherwise the contents of any dwelling-house in the land, if displayed to the public, could be said to have a tendency to advance education in aesthetic appreci ation-which would, I think, be absurd. Some further judicial inquiry is needed directed to the quality of those chattels. The judge cannot conduct that inquiry on his own, unless the matter be so obvious as to call for no hesitation.He may be lacking in aesthetic appreciation. He is, I consider, entitled to the assistance of people expert in such matters, and to arrive at a conclusion based on such assistance. If the conclusion so based is that the quality of the articles is such that their exhibition to the public can not be reasonably supposed to have the tendency mentioned, there is no charitable gift.
Accordingly, I would reject the submission that the judge should not have entertained the evi dence … on the quality and the potential educational value of this gift.
Re Dupree’s Deed Trusts
[1945] Ch 16.
VAISEY J: In this case I have to decide whether the encouragement and promotion of chess-playing among the boys and young men of the city of Portsmouth is a good charitable object.
The game of chess (which, by those who follow it, as well, perhaps, as by those who do not follow it, is regarded as something rather more than a mere game) is an institution with a very long history behind it, and it possesses the somewhat notable feature that it is essentially a game of skill into which elements of chance enter, if at all, only to a negligible extent. It is a game which, I suppose, is played all over the civilized world. I have some evidence which enables me to say-and, indeed, I think I might have said it even without that evidence-that the nature of the game is such as to encourage the qual ities of foresight, concentration,memory and ingenuity. Even unguided by actual evidence, I should not have been surprised if the conclusion could have been reached that the game is essentially one which does possess an educational value.
There are many pursuits possessing an educational value which may be followed to excess, and the matter is in no way concluded by any such consideration. Chess players may become so obsessed by the interest of their pursuit that they may neglect other duties, but the same thing may be said of those who range the mysterious country of the higher mathematics or indulge in the study of classical authors. I am not surprised to learn from the evidence that there are schoolmasters and persons actu ally concerned with the business of education who regard the playing of chess as something of so much value educationally that in some places it is actually a part of a school curriculum …
I think that the case before me may be a little near the line, and I decide it without attempting to lay down any general propositions.One feels, perhaps, that one is on rather a slippery slope. If chess, why not draughts? If draughts, why not bezique, and so on, through to bridge and whist, and, by another route, to stamp collecting and the acquisition of birds’ eggs? Those pursuits will have to be dealt with if and when they come up for consideration in connexion with the problem whether or no there is in exist ence an educational charitable trust. Nor do I say whether, if this trust had been without a geographical limitation, if it had been for the promotion of chess playing in vacuo or at large, the area of what is regarded as charitable would or would not have been over-stepped. Having regard to the evidence before me and to what is known about the game of chess by everybody, and, in particular, to the fact that the encouragement of chess playing here is for the benefit of young persons living within a well defined area, and also that it is of the essence of the constitution of the trusteeship that two of the trustees should be persons closely connected with educational activities in the borough, I think I am bound, in the present case, to hold that there is a good charitable trust, and answer the question by declaring that the trusts constituted by the deed of June 30, 1932, are valid charitable trusts.
IRC v McMullen and others
[1981] AC 1,
LORD HAILSHAM LC:
Apart from the limitation to the particular institution I would think that these words apply as well to the settlor’s intention in the instant appeal as to the testator’s in Re Mariette, and I regard the limitation to the pupils of schools and universities in the instant case as a sufficient association with the provision of formal education to prevent any danger of vagueness in the object of the trust or irresponsibility or capriciousness in application by the trustees. I am far from suggesting either that the concept of edu cation or of physical education even for the young is capable of indefinite extension. On the contrary, I do not think that the courts have as yet explored the extent to which elements of organisation, instruc tion or the disciplined inculcation of information, instruction or skill may limit the whole concept of edu cation. I believe that in some ways it will prove more extensive, in others more restrictive that has been thought hitherto. But it is clear at least to me that the decision in Re Mariette is not to be read in a sense which confines its application for ever to gifts to a particular institution. It has been extended already in Re Mellady [1918] 1 Ch 228, to gifts for annual treats for schoolchildren in a particular locality (another decision of Eve J). to playgrounds for children (Re Chesters, 25 July 1934 unreported, possibly not edu cational, but referred to in IRCv Baddeley [1955] AC 572 at596); to a children’s outing (Re Ward’s Estate (1937) 81 SJ 397). to a prize for chess to boys and young men resident in the City of Portsmouth (Re Dupree’s Deed Trusts [1945] Ch 16, a decision of Vaisey J). and for the furthering of the Boy Scouts’ movement by helping to purchase sites for camping, outfits etc. (Re Webber [1954] 1 WLR 1500, another decision ofVaisey J).
Guild v IRC
[1992] 2 AC 310,
LORD KEITH OF KINKEL: A Scottish court, when faced with the task of construing and applying the words ‘charity’ and ‘charitable’ in a United Kingdom tax statute, must do so in accordance with the technical meaning of these words in English law (see Special Comrs of Income Tax v Pemse/ [1891] AC 531 and /RCv Glasgow Police Athletic Association [1953] AC 380). For tax purposes, and for them alone, the English law of charity is to be regarded as part of the law of Scotland. Lord Jauncey’s decision in the action of multiplepoinding proceeded on the general law of Scotland as regards charities, and, as the Glasgow Police Athletic case shows, the decision under the corresponding English common law rules would have been different. However, theGlasgow Police Athletic case and that of /RCv Baddeley [1955] AC 572 led to the Recreational Charities Act 1958 (the 1958 Act). and it is that Act which the executor invokes in his claim to the charitable exemption from capital transfer tax.
[Lord Keith set outs. 1 of the 1958 Act and continued:]
In the course of his argument in relation to the first branch of the bequest counsel for the Crown accepted that it assisted in the provision of facilities for recreation or other leisure time occupation within the meaning of sub-s. (1) of s. 1 of the 1958 Act, and also that the requirement of public benefit in the proviso to the subsection was satisfied. It was further accepted that the facilities of the sports centre were available to the public at large so that the condition of sub-s. (2)(b)(ii) was satisfied. It was maintained, however, that these facilities were not provided ‘in the interests of social welfare’ as required by sub-s. (1), because they did not meet the condition laid down in sub-s. (2)(a). namely that they should be ‘provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended’. The reason why it was said that this condition was not met was that on a proper construction it involved that the facilities should be provided with the object of meeting a need for such facilities in people who suffered from a position of relative social disadvantage. Reliance was placed on a passage from the judgment of Walton Jin /RC v McMullen [1978] 1 WLR 664. That was a case where the Football Association had set up a trust to provide facilities to encourage pupils of schools and universities in the United Kingdom to play association football and other games and sports. Walton J held that the trust was not valid as one for the advancement of education nor did it satisfy s. 1 of the 1958 Act. He said (see [1978] 1 WLR 664 at 675) in relation to the words ‘social welfare’ in sub-s. (1):
In my view, however, these words in themselves indicate that there is some sort of depriv ation-not, of course, by any means necessarily of money- which falls to be alleviated; and I think that this is made even clearer by the terms of subsection (2)(a). The facilities must be pro vided with the object of improving the conditions of life for persons for whom the facilities are primarily intended. In other words, they must be to some extent and in some way deprived per sons.
When the case went to the Court of Appeal (see (1979] 1 WLR 130) the majority (Stamp and Orr UJ) affirmed the judgment of Walton J on both points, but Bridge LJ dissented. As regards the 1958 Act point he said ([1979] 1 WLR 130 at 142):
I turn therefore to consider whether the object defined by clause 3(1) is charitable under the express terms of section 1 of the Recreational Charities Act 1958. Are the facilities for recreation contemplated in this clause to be ‘provided in the interests of social welfare’ under s.1(1)? If this phrase stood without further statutory elaboration, I should not hesitate to decide that sporting facilities for persons undergoing any formal process of education are provided in the interests of social welfare. Save in the sense that the interests of social welfare can only be served by the meeting of some social need, I cannot accept the judge’s view that the interests of social welfare can only be served in relation to some ‘deprived’ class. The judge found this view reinforced by the requirement of subsection (2)(a) of s. 1 that the facilities must be provided ‘with the object of improving the conditions of life for the persons for whom the facilities are primarily intended;…’Here again I can see no reason to conclude that only the deprived can have their conditions of life improved. Hyde Park improves the conditions of life for residents in Mayfair and Belgravia as much as for those in Pimlico or the Portobello Road, and the village hall may improve the conditions of life for the squire and his family as well as for the cottagers.The persons for whom the facilities here are primarily intended are pupils of schools and universities, as defined in the trust deed, and these facilities are in my judgment unquestionably to be provided
with the object of improving their conditions of life. Accordingly the ultimate question on which the application of the statute to this trust depends, is whether the requirements of s. 1(2)(b)(i) are satisfied on the ground that such pupils as a class have need of facilities for games or sports which will promote their physical education and development by reason either of their youth or of their social and economic circumstances, or both. The overwhelming majority of pupils within the definition are young persons and the tiny minority of mature students can be ignored as de minimis. There cannot surely be any doubt that young persons as part of their education do need facilities for organised games and sports both by reason of their youth and by reason of their social and economic circumstances. They cannot provide such facilities for themselves but are dependent on what is provided for them.
In the House of Lords the case was decided against the Crown on the ground that the trust was one for the advancement of education, opinion being reserved on the point under the 1958 Act. Lord Hailsham LCsaid([1981]AC1 at11)-
…I do not wish my absence of decision on the third or fourth points to be interpreted as an indorsement of the majority judgments in the Court of Appeal nor as necessarily dissenting from the contrary views contained in the minority judgment of Bridge LJ.
The fact is that persons in all walks of life and all kinds of social circumstances may have their condi tions of life improved by the provision of recreational facilities of suitable character. The proviso requir ing public benefit excludes facilities of an undesirable nature. In my opinion the view expressed by Bridge U (see [1979] 1 WLR 130 at 142) in /RC v McMullen is clearly correct and that of Walton J (see [1978] 1 WLR 664 at 675) in the same case is incorrect … I would therefore reject the argument that the facilities are not provided in the interests of social welfare unless they are provided with the object of improving the conditions of life for persons who suffer from some form of social disadvantage. It suf fices if they are provided with the object of improving the conditions of life for members of the communiity generally.
Re Moss (dec’d), Hobrough v Harvey
[1949]1 All ER 495, 65 TLR 299,
ROMER J: Inasmuch as I am satisfied that this is a valid charitable object, the bequest does not fail, and I propose to base my decision on that ground. Russell LJ, inRe Grove-Grady [1929] 1 Ch 557 laid it down clearly that a gift in favour of animals depends for its validity on the question whether such a gift pro duces a benefit to mankind. He said ([1929] 1 Ch 582):
So far as I know there is no decision which upholds a trust inperpetuity in favour of animals upon any other ground than this, that the execution of the trust in the manner defined by the creator of the trust must produce some benefit to mankind. I cannot help feeling that in some instances matters have been stretched in favour of charities almost to bursting point: and that a decision benevolent to one doubtful charity has too often been the basis of a subsequent decision still more benevolent in favour of another.
Later he said (ibid., 588):In my opinion, the court must determine in each case whether the trusts are such that benefit to the community must necessarily result from their execution.
The observations of the Lord Justice on those matters received recognition in the House of Lords in Inland Revenue Comrs v National Anti-Vivisection Society [1948] AC 31
Therefore, one has to see whether the present case passes that test, namely, the test whether the gift produces some benefit to mankind. In my judgment, it passes that test with honours. It seems to me that the care of and consideration for animals which through old age or sickness or otherwise are unable to care for themselves are manifestations of the finer side of human nature, and gifts in further ance of these objects are calculated to develop that side and are, therefore, calculated to benefit mankind. That is more especially so, perhaps, where the animals are domestic animals. That appears to have been the view of the matter taken by Lord Hanworth MR, in Re Grove-Grady [1929] 1 Ch 557 where, after referring to certain authorities, he said ([1929] 1 Ch 570):
From these authorities it seems clear that if the object be to enhance the condition of animals that are useful to mankind, or to secure good treatment for animals, whether those animals are useful to mankind or not (see per Chatterton V-C, in Armstrong v Reeves (1890) 25 LR Ir 325 and per Wood V-C, in Marsh v Means (1857) 30 LTOS 89, or to insure humane conduct towards, and treatment of, them whether in respect of a particular subjection of them to the use of mankind, as for food (Re Cranston [1898] 1 IR 431). or in what is called vivisection, such objects are to be deemed charitable.
It appears to me that, taking a fair view of this lady’s activities as they emerge from her affidavit, it may truthfully be said of them that they conform to all those tests and criteria to which Lord Hanworth draws attention. I need, I think, only add that a gift to the Institution of the Home for Lost Dogs was
· regarded as a charitable gift in Re Douglas (1887) 35 ChD 472.
Counsel for the next-of-kin has urged that this is not a trust for the protection of cats and kittens or protection from cruelty, but is merely a gift for their welfare. I do not take that view of the matter. The gift in the will is not merely a gift to be used at the lady’s discretion for the welfare of cats and kittens. It is for the welfare of cats and kittens needing care and attention. It is plain that a gift to prevent cruelty in relation to cats and kittens would be good as having an elevating effect on mankind. For my part, I can see no difference between that and a gift the object of which is to alleviate distress among cats and kittens. It seems to me that, that being the object which the testatrix had in mind, the object which she intended to benefit, and it being, in substance, the object of the work which this lady has carried out and is now carrying out, the gift is perfectly good as being a valid charitable bequest, and I so hold.
IRC v City of Glasgow Police Athletic Association
LORD REID:
I do not doubt that the purpose of increasing or maintaining the efficiency of a police force is a char itable purpose within the technical meaning of those words in English law. It appears to me to be well established that the purpose of increasing the efficiency of the army or a part of it is a charitable pur pose. It may be that in some cases the facts hardly justified the conclusion that this was the purpose of the gift in question, but that does not affect the principle. I can see no valid distinction between the importance or character of the public interest of maintaining the efficiency of the army and that of maintaining the efficiency of the police.
But it is not enough that one of the purposes of a body of persons is charitable: the Act requires that it must be established for charitable purposes only. This does not mean that the sole effect of the activ ities of the body must be to promote charitable purposes, but it does mean that that must be its pre dominant object and that any benefits to its individual members of a non-charitable character which result from its activities must be of a subsidiary or incidental character.
It was argued that this association could not be regarded as established for charitable purposes because its revenue is all spent on activities in which its members alone take part. I am not satisfied that in every case that would be enough by itself to prevent the body from being held to be established for charitable purposes only, and I prefer to base my opinion on the facts of this case.
The peculiarity of this case is that the same activities have a double result. They are beneficial to the public by increasing the efficiency of the force and they are beneficial to the members themselves in affording them recreation and enjoyment: and all the relevant facts appear to me to indicate that the purpose was to produce this double result. It may well be that consideration of public interest were the primary cause of the association being established and maintained: but I think that it is clear that all or most of the activities of the association are designed in the first place to confer benefits on its members by affording them recreation and enjoyment. It is only as a result of these benefits that the purpose of increasing the efficiency of the police force is achieved. In some cases where the end is a charitable pur pose the fact that the means to the end confer non-charitable benefits may not matter; but in the pre sent case I have come to the conclusion that conferring such benefits on its members bulks so large in the purposes and activities of this association that it cannot properly be said to be established for char itable purposes only. I therefore agree that this appeal should be allowed.
Scottish Burial Reform and Cremation Society, Ltd v Glasgow City Corporation
[1968] AC 138,
LORD WILBERFORCE: My Lords, the Scottish Burial Reform and Cremation Society Ltd was formed in 1890 with the following main objects, as stated in clause 3 of its memorandum of association:-
(a) To promote reform in the present methods of burial in Scotland, both as regards the expense involved and the dangerous effects on the public health. (b) To promote inexpensive and at the same time sanitary methods of disposal of the dead, which shall best tend to render the remainsinnocuous; and,in particular to promote the method known as cremation.
The company is non-profit-making in the sense that its income and property must be applied solely towards the promotion of its objects and that its members receive no dividends nor any distribution on a winding up.
In 1890 the company was, no doubt, a pioneering venture; it must have been one of the earliest undertakings offering to provide a service of cremation for the inhabitants of Glasgow and of Scotland. Though its first object is stated as the promotion of reform in burial methods, its activity in this direction has not been by way of propaganda, but rather by way of providing services of a kind and in a manner which would progressively persuade the public of their advantages …
Was, then, the company established for charitable purposes only? I interpret its objects clause as meaning that the company was formed for a general and a particular purpose: the general purpose was to promote methods of disposal of the dead which should be inexpensive and sanitary; the particularpurpose(to which the company has in fact confined itsel0 to promote the method known as cremation. It is this combination of purposes which has to be examined in order to see whether it sat isfies the legal test of charitable purposes.
On this subject, the law of England, though no doubt not very satisfactory and in need of rationalisa tion, is tolerably clear. The purposes in question, to be charitable, must be shown to be for the benefit of the public, or the community, in a sense or manner within the intendment of the preamble to the statute 43 Eliz. I, c. 4. The latter requirement does not mean quite what it says; for it is now accepted that what must be regarded is not the wording of the preamble itself, but the effect of decisions given by the courts as to its scope, decisions which have endeavoured to keep the law as to charities moving according as new social needs arise or old ones become obsolete or satisfied. Lord Macnaghten’s grouping of the heads of recognised charity inPemse/’s case [1891] AC 531,583 is one that has proved to be of value and there are many problems which it solves. But three things may be said about it, which its author would surely not have denied: first that, since it is a classification of convenience, there may well be purposes which do not fit neatly into one or other of the headings; secondly, that the words used must not be given the force of a statute to be construed; and thirdly, that the law of charity is a moving subject which may well have evolved even since 1891.
With this in mind, approach may be made to the question whether the provision of facilities for the disposal of human remains, whether, generally, in an inexpensive and sanitary manner, or, particularly, by cremation, can be considered as within the spirit of the statute. Decided cases help us, at any rate, to the point of showing that trusts for the repair or maintenance of burial grounds connected with a church are charitable. Then in In re Eighmie [1935] Ch 524, a trust for the maintenance of a cemetery owned and managed by a local authority was held charitable. The cemetery was an extension of a closed churchyard so that the decision can be regarded as a logical step rather than a new departure. Now what we have to con sider is whether to take the further step of holding charitable the purpose of providing burial, or facil ities for the disposal of mortal remains, without any connection with a church, by an independent body. I have no doubt that we should.I would regard the earlier decisions as falling on the borderline between trusts for the advancement of religion and trusts otherwise beneficial to the community. One may say either that burial purposes fall within both, or that the categories themselves shade one into the other. So I find no departure inprinciple in saying that purposes such as the present-which,though the com pany in fact provides the means for religious observance, should be regarded as independent of any religious basis-are to be treated as equally within the charitable class.
It was argued for the respondents that the company’s purposes were neither for the benefit of the community nor, in any event, within the intendment of the preamble to the Statute of Elizabeth I. One or other of these arguments was accepted by the Lord Ordinary and by three members of the Inner
House. As to the first of these, there was some suggestion that the necessary basis of fact had not been shown, and that the appellants should have averred, and if necessary proved, that their services were more inexpensive and more sanitary than normal methods of burial. In my opinion, the appellants rightly made no such averment, for no such comparison was called for. All they had to do was to show that the provision of inexpensive and sanitary methods, and of cremation in particular, was for the bene fit of the community. As to this, the facts speak for themselves; for, it being admitted by joint minute that the company had used its premises in carrying out its objects, the scale on which the company’s serv ices were resorted to clearly showed that they met a need of the public. And it can hardly be said that to meet a need of this character is not beneficial. The second argument can be met in two ways. First, it may be said that the same evolutionary process which has carried charity from the ‘repair of churches’ to the maintenance of burial grounds (i) in a churchyard and (ii) in a cemetery extended from a churchyard should naturally carry it further so as to embrace the company’s objects. Secondly, and more generally, the company’s objects themselves may directly be seen to be within the preamble’s spirit. The group ‘repair of bridges, ports, havens, causeways, churches, sea banks and highways’ has within it the common element of public utility and it is of interest to note that the original label of Lord Macnaghten’s fourth category ‘other purposes beneficial to the community’ affixed by Sir Samuel Romilly in Morice v Bishop of Durham (1805) 1O Ves 522, 532 was’ … the advancement of objects of general public utility.’ In this context I find it of significance that Parliament in 1902 by the Cremation Act of that year placed cremation, as a public service, on the same footing as burial.
I regard, then, the provision of cremation services as falling naturally, and in their own right, within the spirit of the preamble.
One other point requires mention. The company makes charges for its services to enable it, in the words of the joint agreed minute, to fulfil effectively the objects for which it was formed. These charges, though apparently modest, are not shown to be higher or lower than those levied for other burial ser vices. Inmy opinion, the fact that cremation is provided for a fee rather than gratuitously does not affect the charitable character of the company’s activity, for that does not consist in the fact of providing finan cial relief but in the provision of services. That the charging for services for the achievement of a pur pose which is in itself shown to be charitable does not destroy the charitable element was clearly, and, in my opinion, rightly, decided inInland Revenue Commissioners v Falkirk Temperance Cafe Trust 11927] SC 261 as well as in English authorities.
I am therefore of opinion that the appellant makes good its claim to rating relief and I would allow the appeal.