Adjusting Charitable Trusts
Charities Act 1961
Schemes to establish common investment funds.
46.—(1) The High Court or the Board may by order make and bring into effect schemes for the establishment of common investment funds (in this section referred to as schemes) upon terms which provide—
(a) for property transferred to the fund by or on behalf of a charity participating in the scheme to be invested under the control of trustees appointed to manage the fund; and
(b) for the participating charities to be entitled (subject to the provisions of the scheme) to the capital and income of the fund in shares determined by reference to the amount or value of the property transferred to it by or on behalf of each of them and to the value of the fund at the time of the transfers.
(2) The High Court or the Board may make a scheme on the application of any two or more charities: provided that, in the case of any two or more charities of which the Board are trustees, the Board may make a scheme of their own motion.
(3) A scheme may be made in terms admitting any charity to participate, or restricting the right to participate in any manner.
(4) A scheme may make provision for, and for all matters connected with, the establishment, investment, management and winding up of the common investment fund, and may in particular include provision—
(a) for remunerating persons appointed trustees to hold or manage the fund or any part of it, with or without provision authorising a person to receive the remuneration notwithstanding that he is also a charity trustee of or trustee for a participating charity;
(b) for restricting the size of the fund, and for regulating as to time, amount or otherwise the right to transfer property to or withdraw it from the fund, and for enabling sums to be advanced out of the fund by way of loan to a participating charity pending the withdrawal of property from the fund by the charity;
(c) for enabling income to be withheld from distribution with a view to avoiding fluctuations in the amounts distributed, and generally for regulating distributions of income;
(d) for enabling moneys to be borrowed temporarily for the purpose of meeting payments to be made out of the fund;
(e) for enabling questions arising under the scheme as to the right of a charity to participate, or as to the rights of participating charities, or as to any other matter, to be conclusively determined by the decision of the trustees managing the fund or in any other manner;
(f) for regulating the accounts and information to be supplied to participating charities.
(5) A scheme, in addition to the provision for property to be transferred to the fund on the basis that the charity shall be entitled to a share in the capital and income of the fund, may include provision for enabling sums to be deposited by or on behalf of a charity on the basis that (subject to the provisions of the scheme) the charity shall be entitled to repayment of the sums deposited and to interest thereon at a rate determined by or under the scheme; and where a scheme makes any such provision it shall also provide for excluding from the amount of capital and income to be shared between charities participating otherwise than by way of deposit such amounts (not exceeding the amounts properly attributable to the making of deposits) as are from time to time reasonably required in respect of the liabilities of the fund for the repayment of deposits and for the interest on deposits, including amounts required by way of reserve.
(6) Except in so far as a scheme provides to the contrary, the rights under it of a participating charity shall not be capable of being assigned or charged, nor shall any trustee or other person concerned in the management of the common investment fund established by the scheme be required or entitled to take account of any trust or other equity affecting a participating charity or its property or rights.
(7) Property held upon any charitable trust may be transferred to common investment funds established under this section unless the power to do so is excluded by a provision specifically referring to schemes in the terms of the trust.
(8) A common investment fund shall be deemed for all purposes to be a charity.
(9) The High Court may by order amend or vary the terms of, or wind up, a scheme and the Board may by order amend or vary the terms of, or wind up, a scheme made by order of the Board.
Occasions for applying property cy-près.
47.—(1) Subject to subsection (2), the circumstances in which the original purposes of a charitable gift may be altered to allow the property given or part of it to be applied cy-près shall be as follows:—
(a) where the original purposes, in whole or in part—
(i) have been as far as may be fulfilled; or
(ii) cannot be carried out, or cannot be carried out according to the directions given and to the spirit of the gift; or
(b) where the original purposes provide a use for part only of the property available by virtue of the gift; or
(c) where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to the spirit of the gift, be made applicable to common purposes; or
(d) where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased, either to be suitable, regard being had to the spirit of the gift, or to be practical in administering the gift; or
(e) where the original purposes, in whole or in part, have, since they were laid down—
(i) been adequately provided for by other means; or
(ii) ceased, as being useless or harmful to the community or for other reasons, to be in law charitable; or
(iii) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift.
(2) Subsection (1) shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy-près, except in so far as those conditions require a failure of the original purposes.
(3) References in the foregoing subsections to the original purposes of a gift shall be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable.
(4) It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy-près, to secure its effective use for charity by taking steps to enable it to be so applied.
(5) This section shall apply to property given for charitable purposes, notwithstanding that it was so given before the commencement of this Act.
Application cy-près of gifts of donors unknown or disclaiming.
48.—(1) Property given for specific charitable or non-charitable purposes which fail shall be applicable cy-près by a Court of competent jurisdiction as if given for charitable purposes generally, where it belongs—
(a) to a donor who, after such advertisements and inquiries as are reasonable, cannot be identified or cannot be found; or
(b) to a donor who has executed a written disclaimer of his right to have the property returned,
but in applying cy-près property given for specific non-charitable purposes regard shall be had to the wishes of the trustees or other persons in charge of the property.
(2) For the purposes of this section property shall be conclusively presumed (without any advertisement or inquiry) to belong to donors who cannot be identified, in so far as it consists—
(a) of the proceeds of cash collections made by means of collecting boxes or by other means not adapted for distinguishing one gift from another; or
(b) of the proceeds of any lottery, competition, entertainment, sale or similar money-raising activity, after allowing for property given to provide prizes or articles for sale or otherwise to enable the activity to be undertaken.
(3) A Court of competent jurisdiction may by order direct that property not falling within subsection (2) shall for the purposes of this section be treated (without any advertisement or inquiry) as belonging to donors who cannot be identified, where it appears to the Court either—
(a) that it would be unreasonable, having regard to the amounts likely to be returned to the donors, to incur expense with a view to returning the property; or
(b) that it would be unreasonable, having regard to the nature, circumstances and amount of the gifts, and to the lapse of time since the gifts were made, for the donors to expect the property to be returned.
(4) Where property is applied cy-près by virtue of this section, the donor shall be deemed to have parted with all his interest at the time when the gift was made; but where property is so applied as belonging to donors who cannot be identified or cannot be found, and is not so applied by virtue of subsection (2) or (3)—
(a) the scheme shall specify the total amount of that property; and
(b) the donor of any part of that amount shall be entitled, if he makes a claim not later than twelve months after the date on which the scheme is made, to recover from the charity for which the property is applied a sum equal to that part, less any expenses properly incurred by the charity trustees after that date in connection with claims relating to his gift; and
(c) the scheme may include directions as to the provision to be made for meeting any such claim.
(5) For the purposes of this section, purposes shall be deemed to fail where any difficulty in applying property to those purposes makes that property, or, in the case of property to be applied for charitable purposes, the part not applicable cy-près under section 47, available to be returned to the donors.
(6) In this section, except in so far as the context otherwise requires, references to a donor include references to persons claiming through or under the original donor, and references to property given include references to the property for the time being representing the property originally given or property derived from it.
(7) (a) The powers conferred by this section on a Court of competent jurisdiction in relation to property given for specific charitable purposes may, where the property does not exceed one thousand pounds in value, be exercised by the Board, and, for the purposes of such exercise, references in the preceding subsections of this section to a Court of competent jurisdiction shall be construed as including references to the Board.
(b) For the purposes of paragraph (a)—
(i) the value of land shall be taken to be fifty times the rateable valuation thereof,
(ii) the value of any periodical payment to which land is subject shall be taken to be fifteen times the annual amount thereof, and
(iii) the value of any other periodical payment shall be taken to be twenty times the annual amount thereof.
(8) This section shall apply to property given for charitable or non-charitable purposes, notwithstanding that it was so given before the commencement of this Act.
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.
Gifts for graves and memorials.
50.—(1) Every gift made after the commencement of this Act for the provision, maintenance or improvement of a tomb, vault or grave or of a tombstone or any other memorial to a deceased person or deceased persons which would not otherwise be charitable shall, to the extent provided by this section, be a charitable gift.
(2) Such a gift shall be charitable so far as it does not exceed—
(a) in the case of a gift of income only, sixty pounds a year,
(b) in any other case, one thousand pounds in amount or value.
Cases
Re Royal Kilmainham Hospital
[1966] IR 451
Budd J: The Royal Hospital, Kilmainham (hereinafter generally referred to as the Hospital ), was formed by Charles II in 1684 for the support and maintenance of old soldiers of his army and that of his successors who, by reason of wounds or infirmity, had become unserviceable. The foundation was made by Royal Charter and the Hospital was endowed by the King with a grant of part of the Royal demesne lands in the Phoenix Park. Part of these lands were acquired in the middle of the last century for railway construction purposes and the compensation monies in respect thereof were lodged in Court. The Hospital during its existence provided a home and support and maintenance for old soldiers of the Crown Forces in Ireland. After the setting up of the Irish Free State the Hospital gradually ceased to function, the remaining pensioners were removed to the Royal Hospital, Chelsea, and the Irish Government took over control of the lands and buildings. The Corporation of the Hospital was later dissolved. The Royal Hospital Kilmainham Act was enacted in 1962. It provided, first, for the vesting of the lands and chattel property of the Hospital in the Minister for Finance. The Act further provided that, on the application of the Attorney General, the High Court may order that certain payments be made to the Commissioners of the Royal Hospital, Chelsea, out of the interest accrued on the funds in Court, and also settle a scheme for some specified charitable purposes or purpose for the benefit of some classes of members or former members of the Defence Forces. A question arose during the hearing, however, as to whether the provisions of the Act in this respect were of a mandatory or of enabling nature. With this matter I deal later.
The application was duly brought by the Attorney General. The British Legion applied during the hearing to be added as respondents. It was claimed that some classes of its members had an interest in the funds as the proper beneficiaries of a valid charitable trust created by the endowment of the Hospital and still subsisting with regard to these funds. Alternatively, if the trust had failed, the same classes had a valid claim to benefit under a cy-pr s application of the funds. It was submitted that these claims were not affected by the said Act on its true construction. The British Legion was added as respondent in a representative capacity and l shall deal with the reasons for this and the nature of the claim in more detail later. Counsel for the Attorney General, while not asserting that the Act of 1962 had mandatory force, contested this claim and sought primarily for an order in accordance with the provisions of the Act, and alternatively, for an order that the trust funds be applied cy-pr s. In order to understand the nature of the submissions made to me relative to these contentions and the reasons for my decisions thereon it is necessary to deal first with the nature and history of the foundation.
The Charter of the Hospital was preceded by a Royal Letter of Charles II under the sign manual, dated the 19th April, 1681, addressed from the Court at Whitehall to the Duke of Ormonde, Lord Lieutenant and General Governor of Ireland. It recited that the King had directed the building of a hospital for the maintenance of such aged and maimed soldiers of Our army in Ireland as are or should during their continuance in the said army become unserviceable and that the said hospital had already begun to be erected upon part of Our land now enclosed in Our Park called the Phoenix Park. The King s will and pleasure was that the said land on which the hospital was then built, together with such quantity of land adjoining not exceeding 64 acres plantation measure as the Duke should think fit, should be set apart and for ever after continued for the use of the hospital. The Duke was then authorised to cause effectual letters patent to be passed under the great seal of Our said Kingdom of Ireland to such trustees as he should nominate and their heirs to the use of the said hospital, without rent, to the intent that when the said hospital should be finished and incorporated the lands might be conveyed by the said trustees to the said corporation and their successors for ever.
The Duke of Ormonde, following upon receipt of this letter, by warrant, dated the 23rd December, 1681, addressed to the Surveyor General, directed him to survey and set out such quantity of His Majesty s lands in the Phoenix Park as should not exceed the stipulated area to be applied for the use of the said hospital.
The Charter itself is dated the 19th February, 1684. The recitals are of importance because they are relied upon as indicating the motives for, and the nature of, the grant. The first recital shows that the King, judging it fit and necessary that some provision should be made for such officers and soldiers of Our Army in Ireland, as by reason of their age, wounds, or other infirmities contracted in Our Service, are or shall become unfit to be any longer continued therein, and also are unable otherwise to maintain themselves , had directed a hospital to be erected near Dublin for the reception of such ancient, maimed, and infirm officers and soldiers, to the end, that such of the said army as have faithfully served, or hereafter shall faithfully serve, Us, Our heirs and successors in the strength and vigour of their youth, may, in the weakness and disaster that their old age, wounds, or other misfortunes may bring them into, find a comfortable retreat, and a competent maintenance therein. The second recital significantly commences with the following words:
And whereas We, of our pious and charitable inclination to so good a work, have set apart and given sixty four acres of land, plantation measure, of Our demesne lands, formerly inclosed in Our park, called the Phoenix Park … for erecting the said hospital therein … and for and towards the support of the said hospital …
After stating the bounds of the lands, the recital continues:
… and We have also caused the sum of sixpence in the pound for several years last past to be deducted out of the pay of all officers and soldiers of Our said army and other persons placed upon the military list of Our establishment in Our said kingdom towards the charge of building the said hospital, which hath hitherto been wholly employed therein.
The recital terminates with the expression of the King s view that it is fit to have the deduction continued towards finishing the building and providing for the purposes of the hospital until the said hospital shall by the charity of well disposed persons, or by some other ways be endowed with a sufficient revenue in lands for its support.
Following the recitals comes the operative portion of the Charters establishing the hospital stating its name and title, naming and constituting the Governors and incorporating them as a body corporate. The words of the Charter establishing the hospital are as follows:
We do by these presents, for Us, Our heirs and successors, ordain, declare and establish, that the building lately erected and now standing upon the lands of Kilmainham on the south side of the river Liffey
(there follows a description of the lands and buildings)
shall be from henceforth, and shall for ever after continue and be an hospital, in deed and in name for the receipt, abiding and dwelling of such a number of poor aged, maimed and infirm officers and soldiers of the army of Us, Our heirs and successors in Our Kingdom of Ireland as shall by the Governors thereof hereafter mentioned, and their successors, be named, limited or appointed to be lodged, harboured, abide, and be received therein.
It is then declared that the hospital shall for ever hereafter be named and called, the Hospital of King Charles the Second, for ancient and maimed officers and soldiers of the Army of Ireland. The appointment and constitution of the Governors of the Hospital, and of the members, goods, lands, revenues and hereditaments thereof follows next. The persons appointed were certain great officers of State in the kingdom, such as the Lord Lieutenant and the Lord Chancellor, the Chief Justices of the several Courts and certain high-ranking military officers holding particular offices in the army and all their respective successors in office. Some of these military officers are designated as holding particular positions in Our army in our said Kingdom of Ireland or Our army there. Others are described by such titles as Colonel of Our regiment of Guards there or Captain of Our troop of Guards there. The Governors and their successors were then incorporated as a body politic and corporate to have continuance for ever with perpetual succession. There follows a grant to the Governors and their successors of the site of the Hospital and the sixty-four acres of land to have and to hold the same for ever to be held from the King, his heirs and successors in frankalmoign without performing any rent duty or service chattel property as should belong to the hospital.
The Governors were also given other powers usual in charters of this kind, such as holding other lands, leasing, sealing and executing deeds with a common seal and of suing and being sued. Provision is made for the staffing of the Hospital. Full power is given to the Governors to do all things necessary and profitable for the Hospital and the persons placed therein in as full a manner as any other body corporate. Power to nominate inmates of the Hospital is given to the Governors in these words:
The said Governors … shall and may have full power and authority to nominate and appoint, when and as often as they shall think good, such a number of officers and soldiers of the said army who, during their continuance therein, have been, or shall be maimed, or who, having served seven years at least in the said army, have been, or shall become aged, infirm, or unserviceable, to be placed, lodged, and maintained in the said Hospital, as the lodging and revenue of the said Hospital shall hold out to maintain and provide for.
With particular regard to the site, precinct and lands of the Hospital it was ordained by the Charter that the Governors and their successors were wholly and utterly disabled in law from doing anything whereby the precinct of the Hospital, the lands or buildings or any part thereof, might be alienated or conveyed to the possession of the King his heirs or successors, or any other person of body corporate or to any other use than those intended by the Charter, and it was further provided that all such alienations should be utterly void.
Other ancillary provisions are made for such matters as the continuance in operation of the Corporation notwithstanding the death of Governors or the cesser of offices to which the places of Governors are annexed, for the meetings of the Governors or the major part of them and the business to be transacted thereat. The continuance of the deduction of the sixpence in the pound out of the pay of the army and persons upon the military establishment for the use of the Hospital was also ordained. This deduction came to an end in 1794. Thereafter, monies for the support of the Hospital were voted from public funds.
A further charter was granted to the Governors of the Hospital by King George II, dated the 24th April, 1758. Apart from confirming the former charter, it dealt with the necessary quorum of Governors to transact the business of the Hospital. The original charter had provided that a major part of the Governors might transact the business and the new charter in effect reduced the necessary quorum to seven Governors. One of the recitals in this charter is of some importance in connection with the status or nature of the army from which the class of beneficiaries under the charter was to be drawn, variously referred to as Our army of Ireland or in Ireland or Our army there. This recital, dealing with the necessity for reducing the quorum, states that many of the Governors being of high rank in Our army, who from their stations therein are often obliged to be resident in Our Kingdom of Great Britain, and others of the said Governors to be absent from Dublin upon Our necessary service, a major part of the Governors of the said Hospital can seldom be brought together …
Some other documents relating to the Hospital, such as a Royal Warrant of Queen Victoria, dated the 16th December 1848, regulating the establishment and duties of officers of the Hospital, were adduced in evidence, but the matters in issue do not call for their examination in any detail.
With regard to the objects of the royal benevolence as indicated in the Charter, a minute of the Governors meeting of the 18th February, 1698, may be mentioned conveniently at this stage, leaving its effect to be dealt with later. It is as follows:
That any Soldier, who has served his Majesty in England, Ireland, Flanders, or other foreign parts, for seven years, and belongs to any Regiment now on the Irish establishment, or who served in any Regiment formerly on the said establishment, is qualified for the Hospital.
The Hospital continued to serve its purposes as a home for old soldiers during the 18th century. The Union came in 1801 and with it the disappearance of Ireland as a separate kingdom. The de facto administration of the Hospital continued, however, during the 19th century despite two unsuccessful attempts to do away with the in-pension establishment at Kilmainham in 1834 and 1853. Questions have been raised, however, as to the legal effect of the disappearance of the separate kingdom of Ireland on the operation of the Charters having regard to the fact that the object class of the Royal bounty qualified by reason of their service in Our Army of Ireland.
The political results of the setting up of the Irish Free State in 1922, followed later by the coming into operation of the present Constitution, had their effects upon the present situation regarding the Hospital. Immediately before 1922 some seventeen Governors of the Hospital held office ex officio, their offices being political, judicial ecclesiastical, or military. In most cases their respective offices ceased to exist in 1922, so that no quorum of Governors was available to govern and transact the business of the Hospital. There were some 126 in-pensioners in 1922. They had decreased to 51 by 1929. The British Government gave these the option of being transferred to the Royal Hospital at Chelsea or becoming out-pensioners. Forty-two of the surviving pensioners were then transferred to Chelsea, the remaining nine becoming out-pensioners. The Hospital ceased to function as such with the departure of the last pensioners on the 31st May 1929. The costs of maintenance of the forty-two pensioners transferred and the nine out-pensioners were met from the provision in the British votes for the Chelsea Hospital until the last pensioner died on the 17th September 1952. As the number of the pensioners decreased after 1922, the Irish Government, by arrangement with the British Government, at various dates took over the surplus accommodation in the Hospital until, by the 30th June 1933, the whole of the Hospital property had been handed over to the Irish authorities.
Following these events the Government, by the Royal Hospital, Kilmainham (Dissolution of Governors and Revocation of Charters) Order 1955 (SI 260/1955), in exercise of the powers conferred on them by s 9 of the Ministers and Secretaries Act 1924, as amended by s 3 of the Adaptation of Charters Act 1926 and every and any other power in that behalf enabling ordered the dissolution of the Governors of the Hospital and revoked the charters of the 19th February, 1684, and the 24th April, 1758.
On the establishment of Saorst t ireann in 1922 the compensation monies in respect of the lands acquired from the Hospital still remained in Court. Owing to the uncertainty of the legal position regarding these funds the income thereof was allowed to accumulate. An agreement was come to later between the Irish and British governments that portion of the accumulated income thereof would be made available to the Commissioners of the Royal Hospital at Chelsea in respect of the support and maintenance of the pensioners transferred as aforesaid to the Royal Hospital, Chelsea.
It is understandable, as stated in the affidavit of the Chief State Solicitor, that following the establishment of Saorst t ireann, the withdrawal of the British Army and the lapsing of the functions of the Governors of the Hospital, it was not possible to determine with certainty who, if anyone, was legally entitled to receive the income from the investments mentioned in the Schedule to the Act of 1962. The dissolution of the Governors and the revocation of the charters had not lessened the legal complexities.
The Royal Hospital Kilmainham Act 1962, is stated in the title to be an Act to make provisions consequential on the dissolution of the Governors of the Royal Hospital, Kilmainham. The dissolution date is stated in s 1 as being the 31st day of December 1955, on which day the Governors became dissolved by virtue of the Royal Hospital Kilmainham (Dissolution of Governors and Revocation of Charters) Order 1955. It provided by ss 2 and 3 thereof for the vesting in the Minister for Finance of the lands and buildings which were comprised in and constituted the Hospital and all other lands and buildings vested in or held in trust for the Governors before the dissolution date freed from all trust and for the transfer to the Minister of the chattel property held in trust for the Governors before that date. With this portion of the Act I am not concerned on this application. Section 4 of the Act provided for an application in the form at present before me and is as follows:
4 – The High Court, on application made to it by the Attorney General, may:
(a)order the payment to the Commissioners of the Royal Hospital, Chelsea, of:
(i)the sum of 2,440 7s 4d out of the interest accrued on the portion of the trust funds mentioned in Part I of the Schedule to this Act,
(ii)such sum as may be realised on the sale of all investments representing accrued interest on the said portion, and
(iii)all interest accrued on the investments referred to in the foregoing sub-paragraph up to the time of their sale,
(b)prepare and settle a scheme for the management and application of the trust funds (including any balance of interest accrued thereon) for some specified charitable purposes or purpose for the benefit of all or any classes or class of members or former members of the Defence Forces.
The trust funds are defined in the Act as meaning the sums of stock specified in the Schedule to the Act, including all investments which may be substituted for and represent the same. These funds are described in the Schedule as follows:
Part 1
A. 6,078 6s 7d (six thousand and seventy-eight pounds, six shillings and seven pence) 2 per cent Consolidated Stock of the United Kingdom of Great Britain and Northern Ireland lodged with the Accountant of the Courts of Justice to the credit of a ledger account entitled:
Ex parte the Great Southern and Western Railway Company and to the credit of the Governors of the Hospital of King Charles II and all other persons interested in respect of all those pieces of land situate in the Parish of St James County of Dublin, containing 7a 3r and 18 p. and Nos 16, 21, 28, 29 and 31 on the map of said Railway. B. 4,027 6s 11d (four thousand and twenty-seven pounds, six shillings and eleven pence) 2 per cent Consolidated Stock of the United Kingdom of Great Britain and Northern Ireland lodged with the Accountant of the Courts of Justice to the credit of a ledger account entitled:
Ex parte the Great Southern and Western Railway Coy to the credit of the Governors of the Hospital of King Charles II and all persons interested in part of the lands of the said Hospital situate in the Parish of St James, County of Dublin, containing 13a 3r and 38 p plantation measure.
Part II
369 4s 0d (three hundred and sixty-nine pounds, four shillings) 2 per cent Consolidated Stock of the United Kingdom of Great Britain and Northern Ireland standing in the books of the Bank of Ireland and inscribed in the name of:
The Governors of the Royal Hospital of King Charles II, Dublin, for relief and maintenance of ancient and maimed officers and soldiers of the Army in Ireland.
From the evidence adduced it appears that the funds referred to in Part I of the Schedule represent the purchase monies originally paid to the Governors of the Hospital on the acquisition of portion of the lands of the Hospital by the Great Southern and Western Railway Company about the middle of the last century. These funds stand in the books of the Accountant of the Courts to the credit of the Governors of the Hospital of King Charles II and all other persons interested and are thus under the control of the Court. The funds mentioned in Part II of the Schedule would appear to represent certain other funds belonging to the Hospital formerly in the hands of the Paymaster which were ordered by the Governors to be lodged to the credit of the Hospital in the Bank of Ireland in 1806.
The Act of 1962 also provides by s 5 that the Attorney General shall be the sole trustee of the trust funds until the coming into operation of a scheme under s 4 of the Act.
These proceedings come before the Court by way of an originating summary summons on the application of the Attorney General in the matter of the Royal Kilmainham Hospital and the Royal Hospital Kilmainham Act 1962, and the Charities Act 1961. Having regard to certain submissions made to me as to the construction of the Act of 1962, and the possible application of the cy-pr s doctrine to the funds in Court, the summons was amended to enable the issues arising on these matters to be determined. The Attorney General, as the sole trustee of the trust funds of the Royal Hospital, Kilmainham, set out in the Schedule to the Act, now seeks in the amended summons, in the first place, an order directing payment to the Commissioners of the Royal Hospitals Chelsea, of certain sums out of the interest accrued or to accrue on the trust funds as specified in s 4 of the Act and that a scheme be prepared and settled for the management and application of the trust funds and any balance of interest accrued thereon for the benefit of all or any class of the members or former members of the Defence Forces. In the alternative to the relief first claimed, the Attorney General, as the person in whom is vested by law the administration and control of the business powers, authorities, duties and functions of charities in the State, seeks an order directing that the said trust funds be applied cy-pr s.
The Act of 1962, it will be noted, purports to deal with trust funds, thereby impliedly recognising the existence of a trust of some sort but without specifying the particular trust or its nature. The Act on the face of it is enabling and not mandatory in form in that s 4 provides that the High Court, on the application made to it by the Attorney General, may make the orders therein specified. It may well be that the decision in Buckley and Others (Sinn F in) v Attorney General and Another [1950] IR 67, dealing with the constitutional limitations of the effect and operation of legislation purporting to deal with matters purely within the domain of the Courts, overshadowed this particular legislation. The nature of the foundation, as appearing from those parts of the Charter which I have already set out, indicates that the trust recognised by the Act of 1962 might well prove to be a charitable trust. The fact that the foundation might in fact be found to be charitable and the trust still subsisting with regard to the trust funds, so that it would ordinarily according to law be enforceable by the Courts, might well, it was suggested, provide a reason why the Act should take an enabling form.
At an early stage of the hearing it became evident that the point as to whether or not the endowment of the Hospital did create a foundation of a charitable nature in the legal sense with the result that the trust funds to be dealt with were already impressed with a valid charitable trust, would have to be decided. If it was found that the funds were already impressed with a subsisting charitable trust that trust would in the ordinary way be carried into execution by the Court, or, if its purposes had failed, the cy-pr s doctrine of applying the funds to the nearest purposes of the trust would in the ordinary course be applied. In either event the effect and operation of the Act of 1962 relative to any limitation of the application of the doctrine to these particular funds by the Court would arise for consideration and determination.
A situation of some practical difficulty arose during the hearing relative to these matters. The Attorney General is named in the Act of 1962 as trustee of the trust funds and as the person empowered to bring the proceedings for the application of the funds in the specified fashion, whereas he would in the ordinary course, as the protector of charities, be the proper person to contend that the funds were impressed with a valid and subsisting trust where there were reasonable grounds to support such a contention, leaving it, of course, to the Court to determine the issue. There was, thus, at the commencement of the proceedings no legitimus contradictor to the contentions which counsel for the Attorney General indicated that they would put forward in support of the application to have the funds applied as first sought in the originating summons as distinct from a general cy-pr s application. This difficulty created by the absence of a legitimus contradictor was solved, however, by the appearance of counsel on behalf of the British Legion, a body incorporated by Royal Charter in England but in active operation in this country. Its objects, as is well known, include the promotion of the welfare by charitable means of persons in need who have served in the British Forces. It was stated that this body wished to contend that certain of its members in straitened circumstances constituted a class of persons entitled, notwithstanding the provisions of the Act of 1962, to be held to be beneficiaries under a valid and subsisting charitable trust affecting the trust funds referred to in the Act of 1962; or alternatively, to be entitled to participate in any cy-pr s application of these funds. I was satisfied that a statable case to this effect could be made. The necessity in the interests of justice of having a legitimus contradictor was obvious. I decided that this body could properly act in that capacity and I accordingly added the British Legion as respondents in these proceedings to represent the class of all persons who are, or may claim to be, entitled to the benefit of the funds mentioned in the schedule to the said Act other than members or former members of the Defence Forces.
The first question to be decided is whether the Act of 1962 is mandatory or enabling in character. If its force is found to be mandatory, questions as to its constitutionality might well arise, but this would not be so if it be found to be of an enabling nature. Counsel for the Attorney General took the view that the statute was on its true construction of an enabling nature and not mandatory; hence that it did not trammel the Court as to the exercise of its cy-pr s jurisdiction, assuming that it was a case for a cy-pr s application of the funds apart from the Act. I must, however, form my own view of the Act.
To determine this question I must have regard to such internal evidence as the Act affords as to the intendment of the Legislature, viewed against the background of the surrounding circumstances at the time of its enactment. The funds are not treated in the Act of 1962 as State property but are treated as trust funds and the Attorney General is made the temporary trustee of these funds. The form of words used in s 4 is that the Court may make such order as stated therein. The word is in itself potential in nature and not significant of any obligation. Is there then to be found any indication that the word was used in a mandatory sense? Since the funds to be dealt with are referred to in the Act as trust funds and no trust is created by the Act, the only assumption that can be made is that the existence of some unspecified, but previously existing, trust is impliedly recognised. But the object for which the power is given is to enforce any already existing right under such a trust or otherwise of members or ex-members of the Defence Forces or of the Royal Hospital, Chelsea. Nor does the Act take the form of conferring any property rights on the proposed beneficiaries. The enjoyment of any benefit is made dependent upon an order being made which gives but a potential nature to the benefit. The uncertainty of the situation at the time of its enactment, particularly the possibility of there being in existence some class of persons who might have rights, or inchoate rights, as cestuis que trustent under the impliedly recognised trust, affords an excellent reason for the Act taking an enabling form, whereas words directory in form might well be regarded as being unsuitable to the circumstances of the case as being an encroachment on the proper domain of the Courts in regard to funds under the Court s control and possibly impressed with a charitable trust which is still operative. The background of the legislation and the internal evidence in the Act leads me to the conclusion that the word, may, should be construed according to its prima facie meaning, with the result that I find the Act on its true construction to be enabling and not mandatory in nature. In re Shrewsbury Grammar School (1849) 1 Mac & G 324, at p 332, shows that where a statute affecting a charity does not completely regulate the charity there is nothing to oust the jurisdiction of the Court in respect of matters not dealt with by the statute. A fortiori the powers of the Court will not be excluded where the Act is merely an enabling Act. Should it be found that the trust funds are impressed with a valid and subsisting charitable trust the provisions of the Act of 1962 do not therefore prohibit the exercise by the Court of its jurisdiction and duty to enforce such a trust or, alternatively, to direct that the trust funds should be applied cy-pr s. I have thus to consider next what is the true nature of the foundation according to the proper construction of the Charter and the results that flow in law therefrom before I can decide whether I can properly accede to the application before me contained in para 1 of the summons in whole or in part.
A number of questions of no little difficulty arose on the contentions put forward by the parties, which I will only outline at the moment. The first was whether the foundation of the Hospital in the sense of the granting of lands to it by Charles II constituted a valid charitable trust in favour of a class of persons who may be briefly described as maimed and infirm officers and soldiers of the Army in Ireland of King Charles II and his successors. Mr Matheson, for the respondents, submitted that it did. Consequently, he said, the funds in question remained impressed with a valid subsisting trust and that some members of the classes he represented answered the description of beneficiaries and should be held entitled as such to the benefit of the funds in that they are ex-members of the Army of Charles the Second s royal successor. If they were not entitled as cestuis que trustent owing to the failure of the charitable trust for any reason, then, he contended, they were the proper persons to designate as beneficiaries under a cy-pr s application of the funds. Counsel for the Attorney General submitted that the foundation of the Hospital was an executive act of the Crown in its executive capacity and that no valid charitable trust ensued. Such trust as was created had come to an end on the dissolution of the Corporation so that the trust funds had reverted to the State as successors of the Crown, and were now at the disposal of the Legislature, which had under the Act of 1962 designated objects for whose benefit the funds should be applied under a scheme to be settled by the Court. Alternatively, it was submitted, that even if a valid charitable trust was created by the endowment of the Hospital it was so created by virtue of a Crown grant and that by reason thereof the trust property would, on the dissolution of the Corporation, likewise revert to the State as the successor of the Crown and was again capable of disposal by the Legislature. In the further alternative, assuming a valid charitable trust to have been created and that there was no reverter it was submitted that it had not failed as to objects since some classes of members or former members of the Defence Forces answered literally the description of the object class in the changed political circumstances as being soldiers of the Army of Ireland, and, if otherwise qualified as charitable objects, were entitled to benefit. If, on the other hand, the charitable trust had wholly failed then it was contended that the same classes ought to be the proper objects of any cy-pr s application of the funds. It is thus necessary to determine whether or not a valid charitable trust was constituted on the foundation of the Hospital by virtue of the gift of the lands to it and then, if so, whether the charitable trust was constituted on the foundation of the Hospital by virtue of the gift of the lands to it and then, if so, whether the charitable trust has failed and, if it has, should the funds be applied cy-pr s.
The law requires that if a charity can be administered according to the directions of the founder it should be so administered. When it is established that a gift has been made with a general intention of charity and a failure of purposes ensues it is not allowed to fail but will be carried out cy-pr s. Likewise, where there is an absolute perpetual gift to a charity, even though the trusts be only for the accomplishment of a particular charitable purpose, the same results ensue. The principle is applied where the method indicated by the donor of carrying out his charitable intention becomes impracticable, or his intentions cannot be executed literally, most frequently owing to altered circumstances.
Trusts for charitable purposes in the legal sense include trusts for the relief of aged, impotent and poor persons and such objects as are analogous thereto, and there can be little doubt that a trust for the relief of poor, aged, maimed and infirm officers and soldiers would ordinarily be regarded as a valid charitable gift. The cy-pr s principle is confined, however, to cases where property is given with a general intention to charity with this exception, that where property is given absolutely and perpetually to the charity the fund can be applied cy-pr s irrespective of the donor s particular intention. As to what is to be regarded as a general charitable intention, no hard and fast rule can be laid down. Courts have differed much as to what is sufficient to indicate such an intention. The test suggested by Kay J in Re Taylor; Martin v Freeman (1888) 58 LT (NS) 538, at p 543, is one that carries great weight:
… if upon the whole scope and intent of the will you discern the paramount intention of the testator was to benefit not a particular institution, but to effect a particular form of charity independently of any special institution or mode, then … if the particular mode for any reason fails, the Court, if it sees a sufficient expression of a general intention of charity, will, to use the phrase familiar to us, execute that cy-pr s.
The question as to whether the form of a gift indicates a general intention of charity depends upon the construction of the document by which the gift is given.
It was first submitted by Mr Garland, on behalf of the Attorney General, that the foundation and endowment of the Hospital by Charles II did not create a valid charitable trust of any sort, being but an executive act of the Crown as part of its government functions whereby the Hospital and lands, as Crown property, were devoted to State uses like any other building used for governmental purposes. On ceasing to be used for the designated purposes the lands would thus become at the disposal of the Crown, now the State. His argument ran thus: Charles II at the time of the foundation was the Sovereign of the separate kingdom of Ireland. He maintained as such sovereign authority an army in Ireland for the welfare and morale of which he was responsible. What was done by the Charter was one way of looking after its welfare. The building of the Hospital was financed by the deduction of sixpence in the pound from the pay of officers and soldiers of that army and the expenses of the Hospital provided for by the same source to begin with, as well as by the endowment by way of the gift of the demesne lands. Even these demesne lands were, he contended, held by the Crown in its political capacity so that the gift was not in the nature of an act of royal bounty involving a charitable benefaction by the sovereign out of his private property. Assuming these submissions were correct, it was further contended that, as there was no charitable gift, any consideration of a cy-pr s application became irrelevant and the lands should be regarded as having been held for public purposes and accordingly vested in the Irish Free State in the same way as any other State lands, such as Government buildings or military barracks, pursuant to the provisions of Article 11 of that Constitution. Such property remained the property of the State pursuant to Article 49.3 of the Constitution, becoming vested in the Minister for Finance by the State Property Act 1954. If this result ensued in law the lands and funds now representing them were at the disposal of the State and the Act of 1962 indicated the Legislature s view of the proper method of dealing with the funds and no question of a cy-pr s application arises.
Twentieth-century conceptions of the constitutional position of the Crown in England, the parliamentary control of public funds and the constitutional position of the Oireachtas and Government in our own country should not be allowed to cloud the issue. In the time of Charles II the executive authority lay with the Crown in a real sense. If the King as the Executive wished to provide hospital accommodation for his soldiers or ex-soldiers he could direct the building of a hospital and provide funds to maintain it in the same way that he would provide for an ordinary barracks for his soldiers out of the revenue of the Crown. It would not be done by charter. The fact that the grant to the Hospital was of the royal demesne lands does not make that grant a public executive act. Such lands could be granted to individuals up to the reign of Queen Anne. Such a grant, moreover, deprived the King of rents and profits which he would otherwise have enjoyed. Foundation by charter was the usual method of founding a charity. The wording of the Charter provides the best indication of its nature. Its object was to provide an abiding place for poor, aged, maimed and infirm officers and soldiers, so that the objects fell within the well-established classes of charitable objects such as the relief of aged, poor, impotent and sick persons. It created a trust in that the Corporation was to hold the lands granted by Charles II for the benefit of the class of persons designated. The Charter recites the necessity to make provision for those of the above class unable to maintain themselves and mentions Our pious and Charitable inclinations to so good a work. If a purely executive act was intended there would be no need to use such words. The provision of funds for the maintenance of the Hospital by way of the sixpence deduction from pay was only to continue until further revenue should be provided by the charity of well disposed persons. In any event it is the gift of the lands that we are concerned with, as the funds represent the lands. The gift was perpetual and out-and-out. There is provision against alienation, even against a reversion to the Crown. The intention to devote the lands for charitable purposes for ever is manifest and in my view a valid charitable trust was created by the foundation and endowment of the Hospital.
It was, however, further contended that where the original donor of a charitable gift is the Crown and there ensues a failure of the charitable purposes of the gift and a dissolution of the corporation there then takes place, even where the gift takes the form of a perpetual and out-and-out gift, a reverter of the gift to the Crown free of any trust in favour of charity. The doctrine of cy-pr s is therefore not applicable on the failure of a charity founded by the Crown and on reverter the gift is then at the disposal of the Crown, or, in this particular instance, for historical and political reasons, at the disposal of the State.
This contention appears to me to be founded upon a misapprehension of the true nature of the grant and the foundation thereby created. It may be that in the case of a grant made to a Corporation to hold whatever be granted for itself beneficially there may be a reverter to the donor of the grant if the Corporation is later dissolved. But that is because the body entitled beneficially no longer exists and there is no other person who can have the benefit of the property by cy-pr s or otherwise. That is not the position here. The Corporation – that is, the Governors, – did not hold the property beneficially but in trust. They were trustees to hold the property for charitable purposes. The position in law is the same as if an individual trustee of charitable property had died, which would not affect the nature of the trust. A charitable trust never fails for want of a trustee. The principle is recognised in the State Property Act 1954, which, in providing for the vesting of the property of dissolved corporations in the State, excepts the case of property held in trust for another person. Furthermore, the Act of 1962 shows that the Legislature itself did not regard the lands and buildings of the Hospital as being already vested in the State for any reason because the Act provided for the vesting of the lands and buildings of the Hospital in the Minister for Finance freed from all trusts and despite the dissolution of the Corporation and revocation of the Charter recognises the existence of a trust in respect of the funds in question.
Regard must also be had to the intention of the donor and the nature of the gift. In this particular Charter of Charles II the very nature of the grant itself makes it clear that the intention is that there should be no reverter to the Crown. The grant is out-and-out and forever. The property is given free of rent and there is an explicit restriction on the alienation of the lands to the King or his successors or anyone else.
Questions as to reverter in the case of a Crown charity are so bound up with the matter of the cy-pr s application of the property of such a charity on failure of the purposes that I turn to examine the cy-pr s aspect. There was no controversy as to the general principles applicable when charitable gifts, which have taken effect, subsequently fail for want of objects. If there is an absolute perpetual gift to a charity, even though the trusts declared are only for the accomplishment of a particular charitable purpose, the subject-matter is applicable cy-pr s upon failure of the trusts. (Tudor on Charities, 5th ed, 1929, at p 157). Re Peel s Release [1921] 2 Ch 218 supports this proposition. But Mr Kenny submitted that the general principle does not apply to Crown grants.
In Halsbury s Laws of England (3rd ed, vol 4, at p 396), it is stated that on failure of objects in the case of a Crown charter the Court may dispose of the funds cy-pr s. It is, further, stated, at p 148 of Tudor on Charities (5th ed 1929) that the doctrine of cy-pr s applies to trusts created by the Crown, citing as authority for this proposition the case of Wallis v Solicitor-General for New Zealand [1903] AC 173. In that case the view of the trial judge was that there was no reverter to the Crown of lands granted to charitable purposes by what was at that stage treated as a Crown grant and he held that the general purpose of the foundation was charitable and the doctrine of cy-pr s applied. The Court of Appeal in New Zealand allowed an appeal against the decision holding the grant void. The Privy Council discharged the order of the Court of Appeal in New Zealand. It was argued on behalf of the Solicitor-General for New Zealand that the property had reverted to the Crown and that the doctrine of cy-pr s did not apply to Crown grants. The submissions do not appear to have prevailed in that a scheme was directed, but there is no positive statement in the judgment of Lord Macnaghten supporting the proposition in Tudor, and the case has the unsatisfactory feature that the land in question had never been Crown property, the Crown only having a right of pre-emption.
There are, however, several other cases where the funds of a charity founded by charter have been applied cy-pr s, Attorney-General v Hicks (1909) 3 Bro CC 166n being an example where the purposes had failed. I deduce from the short note of the case that the charity was founded by charter. Kay J in Re Slevin [1891] 2 Ch 236, at p 239, states that there is no reported case of a resulting trust arising upon the failure of a charitable gift which has once taken effect. That the doctrine of cy-pr s is applicable on the failure of a charity founded by a Crown grant appears clearly from the decision of the Court of Appeal in England in Wilson v Barnes 38 Ch D 507. Elizabeth I as lord of a manor in Cumberland in effect granted to the tenants thereof the woods on the manor in consideration of their undertaking the repair of a sea dyke up to that time chargeable to the lord of the manor. The surplus proceeds of wood cut by them was invested by the tenants. The sea receded from the part of the manor protected by the sea dyke. The tenants brought proceedings for a declaration that, subject to the reparation of the sea wall, they were absolutely entitled to the investments. It was held that the grant of the woods was a gift for charitable purposes and a scheme was directed for the application of the property cy-pr s.
Finally, I refer to the case of In re Whitworth Art Gallery Trusts [1958] Ch 461, where Mr Justice Vaisey had to consider the very question whether a charity founded by Royal Charter was one to which the cy-pr s application might be directed. He found that the question was answered in the affirmative by the text-books. Having considered some of the authorities in point, he came to the conclusion that the true principle emerging was that while a charitable corporation founded by Royal Charter cannot be re-founded or re-established by the Court it can be regulated and controlled by the Court, which may have regard to altered circumstances and direct a scheme. He approved a somewhat far-reaching scheme.
In the light of these decisions, and for the reasons hereinbefore indicated, I have come to the conclusion that in the case of a charitable foundation of the Crown, reverter to the Crown does not take place either on the dissolution of the corporation or the failure of the purposes of the trust, and, further, that the Court has jurisdiction to order the application of the trust funds of the charity cy-pr s. The trust funds, therefore, remain impressed with the same charitable trust as operated on the lands which they represent. That charitable trust should be administered either by carrying into execution the intentions of the founder in so far as now possible or by ordering the application of the funds cy-pr s. I have already determined that the provisions of the Act of 1962 do not trammel the jurisdiction of the Court to perform its duty to administer the trust according to law. Accordingly, an appropriate order enforcing the trust or providing for the application of the trust funds cy-pr s must be made.
Before I can decide what particular form of order is required in the circumstances of the case it is necessary to consider how far the purposes of the charitable trust have failed. It has been submitted that the charitable purposes of the trust have not altogether failed because there are, it is said, in existence certain classes of persons who literally answer the description of the beneficiaries designated originally in the Charter, and that the trust in so far as it created a benefit in their favour must continue to operate, so that such persons should now, in any order made, be found entitled to receive the benefits of the income of the trust funds, in which event it would only be necessary to provide a scheme dealing with administrative matters. I have thus next to deal with the argument put forward on behalf of the Attorney General that such class of members or former members of the Defence Forces of the state, who otherwise qualified as charitable objects by reason of wounds or infirmity after seven years service, answers the description of the object class of the Charter, and, on the other hand, Mr Matheson s contention that certain ex-members of the British Crown Forces, likewise qualified, also answer to the express terms of the Charter.
Those intended in the terms of the Charter to benefit from the Royal benevolence were, it will be remembered, such number as should be nominated by the Governors of poor aged, maimed and infirm officers and soldiers of the army of Us, Our heirs and successors in Our Kingdom of Ireland. The class later in the Charter was stated in more detail in connection with the power of nomination as such a number of officers and soldiers of the said army who, during their continuance therein, have been, or shall be maimed, or who, having served seven years at least in the said army, have been, or shall become aged, infirm or unserviceable …
In connection with the class of persons who might properly be held to be entitled to benefit as objects of the class it was also submitted that in the case of an ancient charitable foundation usage in the administration thereof may be taken into account in the construction of the charter thereof where the precise ambit of the class to be benefited is ambiguously expressed. As to that, reliance was placed upon the resolution appearing in the minute of the Governors meeting of the 18th February 1698, That any soldier who has served his Majesty in England, Ireland, Flanders or other foreign parts, for seven years, and belongs to any regiment now on the Irish establishment, is qualified for the Hospital, as indicating a construction placed on the instrument some fourteen years after the date of the Charter.
The arguments in favour of regarding the Defence Forces of the State as now answering to the designation of the object class in the Charter were these: at the date of the Charter Ireland was a separate kingdom and although the Crown of Ireland was linked with the Crown of England, Ireland was a separate entity and the sovereign power in Ireland resided in the Crown of Ireland. The executive power is a function of sovereignty and an army is an arm of the Executive. Accordingly, the expressions, Our army in Ireland or Our army of Ireland, in the Charter should be construed as a reference to the separate Irish army of the sovereign power in the realm of Ireland. The Defence Forces of the Republic are the army of the sovereign power in Ireland and thus answer, it is said, the description of the army of the Charter described as the Army of Ireland, thus qualifying members and former members of the Defence Forces as proper objects provided that they qualify otherwise as charitable objects.
The internal indications in the Charter relative to the true character of the army are themselves ambiguous. True, such phrases as Our army of Ireland and the army of Ireland might seem to indicate the separate existence of such an army as distinct from the armed forces of the Crown in England at the same period, save only for the link of the Crown. It is, however, evident that this descriptive wording might equally well apply to such part of the sovereign s army which was geographically situated in Ireland from time to time. One calls to mind possible analogies such as the British Army of the Rhine and Napoleon s Army of Italy. Further expressions used, such as the army of Us, our heirs and successors in Our kingdom of Ireland, and various references to Our army there, somewhat increase the ambiguity. The evidence however of Mr Geoffrey Joseph Hand, Lecturer in Legal and Constitutional History at University College, Dublin, which is uncontradicted, shows that the main basis of the argument in favour of the Defence Forces answering the description of the object class is founded on a fallacy.
Mr Hand states that the constitutional question of the control of the armed forces was, upon the Restoration of Charles II, settled by statute firstly by 13 Car 2, stat 1, c 6, and further by 13 & 14 Car 2, c 3, which recited:
Forasmuch as within all his majesty s Realms and Dominions, the sole supreme Power, Government, Command and Disposition of the Militia and of all Forces by Sea and Land, and of all Forts and Places of strength, is, and by the Laws of England ever was the undoubted Right of his Majesty, and his Royal Predecessors, Kings and Queens of England; and that both or either of the Houses of Parliament cannot nor ought to pretend to the same …
He also points out that by the statute, 33 Hen 8, c 1 (Ir), it was provided that:
The Kings highnesse, his heyres and successours, Kings of England, be alwayes Kings of this land of Ireland to have, hold and enjoy the said style, title, and honours of King of Ireland … as united and knit to the imperial crown of the realm of England.
He adds: The Royal prerogative was to be the same in both countries. That this was the case in the matter of control of the armed forces is further implied by the statute, 13 & 14 Car 2 c 3, quoted above.
Having referred to the various descriptions of the forces then in Ireland contained in the royal letters and charters concerning the Hospital, he stated that there does not appear to have been any distinction of substance between them. His further evidence relevant to the true character of the army is as follows: The troops formed a separate establishment for financial and purely administrative purposes, as did those in Scotland, which was then united to England in the person of the Sovereign ; and further: Notwithstanding the separate establishments, all the troops in England, Scotland and Ireland under Charles II were equally soldiers of the King, subject to his sole control, in accordance with the then law of the constitution as set out in the statute, 13 & 14 Car 2 c 3.
It appears further from what Mr Hand says that in the time of Charles II the upkeep of the army on the Irish establishment was met out of the hereditary revenues of the King in Ireland, later receiving subventions from the English and Irish parliaments. He points out also that during the period prior to the Act of Union troops on the Irish establishment did not form specifically Irish regiments and might at any time be transferred to another establishment, or, while remaining on the Irish establishment, might be sent abroad. This is recognised in the minute of the Governors of the 18th February, 1698, already quoted. The existence of a separate Irish establishment was brought to an end following upon the Act of Union.
It would appear then that there was not a separate army of or in Ireland. The army in the time of Charles II was the King s army by virtue of his executive authority as the sovereign of three countries. The soldiers of the army were the King s soldiers maintained out of the royal revenue. The charitable intent of the Charter was to benefit those who suffered wounds or other infirmities contracted in Our service or by reason of service in the army of the King s successors in Ireland.
The Defence Forces owe their origin and maintenance not to any Royal prerogative but to the provisions of the Constitution and the legislation of the Oireachtas relevant to their establishment, they are a statutory creation. These forces have their establishment within the territory of the Republic, depend for their maintenance upon the revenues of the Republic and are subject to the laws of the Republic. The fact that part of the King s army in the time of Charles had an Irish establishment does not alter the fundamental distinctions between the King s army of the time of Charles II and the Defence Forces in that the territorial entities of each establishment are not the same. The Irish establishment at the time of Charles II extended over the whole of Ireland while the establishment of the Defence Forces is confined to the Republic. The members of the Defence Forces do not serve in any army of the successors of Charles II. They cannot therefore be said to come within the charitable intentions of the Charter which were to benefit those suffering from wounds or infirmities by reason of their service in the army of Charles the Second s successors. I am unable to hold, therefore, that the Defence Forces answer the description of the object class in the Charter. That is not to say, however, that members thereof who suffer from wounds or infirmity may not qualify as nearest objects of cy-pr s application of the funds.
It was suggested that during the period from 1922 to the coming into force of the Constitution the position might be different so that the soldiers of the Defence Forces during that period might answer the object class in the Charter. The Constitution of the Irish Free State in Article 46 thereof provided that the Oireachtas had the exclusive right of raising and maintaining the armed forces of the State and that every such force should be under the control of the Oireachtas. Under the provisions of the Defence Forces (Temporary Provisions) Act 1923, the power to raise and maintain an armed force and the command-in-chief was vested in the Executive Council. The form of the oath to be taken by a soldier is provided for in the Act and is one of allegiance to our country. I find nothing in the Constitution of the Irish Free State or the above Act which would warrant the submission that the army raised in pursuance thereof could properly be described as the army of the successors of Charles II or that its members answer the object class of the Charter.
Mr Matheson on behalf of the class of persons who are or may claim to be entitled to the benefit of the funds mentioned in the schedule to the Act of 1962, other than members or former members of the Defence Forces, in his turn also contended that there were persons in existence who answered the description of the object class in the Charter. His submission was that ex-members of the Crown Forces who had served prior to 1922 in the British Army in Ireland and had been wounded or had served seven years in that army in Ireland, or elsewhere in a regiment stationed in Ireland, and otherwise qualified as charitable objects, answered the description of the express terms of the Charter provided they were discharged in Ireland and lived in Ireland. He also contended that men living in the Republic or the North who had served since 1922 or were serving or might hereafter serve in the same army were also actual or potential objects.
In making his submission on behalf of what I shall refer to as the pre-1922 class Mr Matheson accepted that the benefits of the Charter were confined to an object class of aged, maimed or infirm soldiers who had served in the King s Army in Ireland or in the King s Army elsewhere for seven years, provided that in the latter case they belonged to a regiment stationed or formerly stationed in Ireland. He was however faced with the contention that service in the King s Army in Ireland or elsewhere in a regiment stationed or formerly stationed in Ireland could only mean service in that part of the King s Army on or formerly on the Irish establishment and since that Irish establishment, according to Mr Hand s evidence, came to an end with the Act of Union, a necessary qualifying factor had disappeared since 1800. He contended, however, that the true spirit and intent of the Charter was that the soldiers of the King s Army who served in Ireland or in regiments stationed in Ireland, and otherwise qualified in their plight, should have the benefits of the Hospital. An administrative change such as was involved in the separate establishment coming to an end and its being replaced administratively by an Irish command did not make such an alteration in substance as would have the result that the class of beneficiaries suddenly ceased to exist in 1800 and the Charter thus became virtually inoperative. The true criterion of eligibility on any reasonable construction of the Charter was service in the King s Army in Ireland or service in a regiment stationed therein. After 1800 there continued to be persons answering this test and there were now in existence persons who had been soldiers of the King s Army stationed in Ireland under the Irish command prior to 1922 who, if they qualified by reason of their physical circumstances, answered the description of the object class.
This submission certainly derives very considerable support from the fact that the Governors of the Hospital, who included in their number many highly-placed members of the Irish judiciary, must have taken this view of the proper construction of the Charter since for more than a hundred years they administered the Hospital and the funds thereof for the benefit of a class of objects qualifying by reason of inter alia serving in the Crown Forces in Ireland, or a part thereof at some time stationed in Ireland. Unless the construction they must have placed on the words of the Charter was correct they would seemingly have acted in breach of trust for a very lengthy period and with no intervention on the part of the Attorney-General. In this connection I have to observe that the Attorney-General of the day advised the Governors on matters relative to the Charter in 1806 and stated in the course of his opinion that he had read the Charter. This was shortly after the Union, when changes consequent thereon would be much in the minds of lawyers, and had he considered that any breach of trust was being committed in the administration of the Hospital he would assuredly have drawn attention to the matter.
In further support of his argument Mr Matheson relied upon the contention that in the construction of an ancient instrument creating a charitable trust matters of construction as regards the ascertainment of the object class may be aided by having regard to long usage. Usage cannot be relied upon to sanction a clear breach of trust. I agree, however, that it is well established that the true construction of such instruments may be aided by long usage and in the case of an ambiguous document the Court will lean towards a construction supported by long usage rather than assume that a breach of trust has been committed. The usage in this case since 1698 has been to include within the object class those mentioned in the minute of the 18th February, 1698. It has also been shown that the usage since 1800 has been to apply the trust funds for the benefit of those soldiers serving under the Irish command of the British Army or in regiments assigned to that command. In my view the construction of the Charter, as exemplified in these usages, is well within the spirit and intent of the Charter and one which it is right in all the surrounding circumstances to accept as properly aiding the construction. I agree with Mr Matheson s main contentions on this aspect of the case, supported as they are by long usage.
In my view the true intent and spirit of the Charter was to benefit soldiers of the King s Army and that of his successors who served in Ireland or elsewhere in a regiment having its station here. The method of the organisation of that army by way of a separate establishment or a separate command is a purely administrative matter having in my view no material bearing on the determination of this object class. In all the circumstances, historical and otherwise, I am not prepared to hold, on my view of the proper construction of the Charter, that the charitable trust created by it came to an end with the Union in 1801, resulting in a breach of trust having been committed by the manner of its administration after that date. I take the view that during the period from 1801 to 1922 the class of British ex-servicemen above described sufficiently answered the description of the object class in the Charter so as to come within the spirit and intent of the Charter, provided that their circumstances of age, infirmity or unserviceability otherwise qualified them so as to become eligible for nomination. The qualifications of discharge in Ireland and living in Ireland are not expressly mentioned in the Charter but are, I think, implicit. At the time of Charles II, when a separate establishment existed, discharge of a soldier on that establishment must in the ordinary way have been in Ireland where he would then be living so that the intent ought properly be presumed to provide for such soldiers. This is borne out by the fact that the minutes of the Governors meeting of the 2nd February 1802, states that the accidental circumstances whether a soldier was discharged in England or Ireland determined his admission to the benefits of the Hospital or those of the Royal Hospital, Chelsea.
It would, however, seem than an entirely new set of circumstances came into existence with the establishment of the Irish Free State in the southern part of Ireland, leaving the other part of the country in the United Kingdom of Great Britain and Northern Ireland, followed as regards the southern part of the country by the establishment of the Republic. After 1922, there did not exist a Royal Army of Ireland or in Ireland in the sense of being on an Irish establishment or command for the whole of Ireland or as being part of the Royal Army stationed throughout the whole of the country. The southern part of the country had its own Defence Forces in lieu of such part of the Royal Army as might previously have been stationed there and such Royal Forces as still remained in Ireland were confined to the smaller part of the country comprised in Northern Ireland. In my view the changed political circumstances created the position that there was as from 1922 no Royal Army of, or in, any political entity comprised of all Ireland, which could supply the object class contemplated by the Charter, so that the object class is closed since 1922. That does not mean that those who had the part qualifications of service and discharge, already mentioned, before 1922 should not fully qualify for the charitable benefits of the trust by becoming aged and infirm subsequent to 1922 and after their discharge in Ireland. The practical position is, however, that while there may be in existence some legitimate claimants to the benefit of the trust funds, the charity cannot function as intended by the continuous filling up of the class.
The application of the cy-pr s doctrine in the present state of affairs and in the light of my findings must be further examined. The practical circumstances are that the Hospital, its buildings, lands and chattel property, have, under the terms of the Royal Hospital Kilmainham Act 1962, so far as I am concerned in these particular proceedings, become vested in the Minister for Finance. The Hospital had by then long ceased to function as such. The corporation created by the Charter had been dissolved. The Charter has been revoked. The validity of its revocation has been challenged, it is true, but, whether validity revoked or not, the undeniable position is that the sub-stratum of the charity as regards the lands and buildings and the corporation is gone. The mode of carrying out the charitable intent provided in the charter is entirely impracticable. There remain, however, these funds impressed, as I have found, with a charitable trust.
It is clear that administration cy-pr s of some sort is called for, in that at present there exists no means of administering the trust. The only matter requiring particular attention is the existence of this ever-decreasing class whose members appear to be in the position of establishing that they sufficiently answer the description of the object class, so that there has not been a complete failure of the original purposes of the charitable gift. Whatever difficulty there might have been in ordering the application of the funds cy-pr s owing to the existence of this pre-1922 class has however been removed by the provisions of s 47 of the Charities Act 1961. As pointed out, in Delany s law relating to Charities in Ireland. that section specified certain circumstances, short of an absolute failure of the trust, which are required to exist before the purposes of a charity can be altered and an order made directing a cy-pr s application. In as much of sub-s 2 provides that the provisions of sub-s. 1 shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy-pr s except in so far as those conditions require a failure of the original purposes, I have only to point out that I have already found that the conditions which must be satisfied exist, in that the gift was made in pursuance of a general charitable intention and was made out-and-out.
The relevant provisions of the section are contained in sub-s 1, paras (a)(ii) and (e)(iii):
(1) Subject to sub-section (2), the circumstances in which the original purposes of a charitable gift may be altered to allow the property given or part of it to be altered to allow the property given or part of it to be applied cy-pr s shall be as follows:
(a)where the original purposes, in whole or in part …
(ii)cannot be carried out, or cannot be carried out according to the directions given and to the spirit of the gift;
(e)Where the original purposes, in whole or in part, have, since they were laid down …
(iii)ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift.
The sub-section applies to the circumstances of this case. In the first place the original purposes of the gift cannot be carried out according to the directions given and the spirit of the gift in that the mode of carrying out the purposes through the Hospital and its corporate organisation is gone. Furthermore, the original purposes have in part at least ceased to provide a suitable and effective method of using the property now available by virtue of the fact that there is now no royal army pertaining to the whole of Ireland from whom the object class can derive now or in the future.
The fact that a vanishing remnant still survives of those that could be said to form the object class does not in my view lead to a conclusion that the original purposes provide in whole a suitable and effective method of using the property in that the continuous admission of qualified persons to the benefits of the Hospital was part of the original purposes according to the spirit of the gift . The whole matter is moreover thrown open when an application cy-pr s is directed and the position of this class can be adequately provided for in the scheme by according some particular and appropriate consideration to it. It would be quite possible to frame the scheme in favour of what I have termed the pre-1922 class alone and then to have a further scheme later when it had died out. But it would be quite illusory to have a scheme operating for so short a time and quite unnecessary to throw the expense of a further hearing and a resettlement of the scheme on a comparatively small fund.
Having regard to my findings, therefore, the application, in so far as contained in para 1(b) of the originating summary summons, must be refused and the proper course to follow in my view is to grant the alternative relief sought in para 2 thereof, by ordering that the funds in question should be applied cy-pr s and for that purpose that a scheme for the management and application of the trust funds be prepared by the Examiner to be settled by the Court.
During the hearing it was urged on me that if the evidence before the Court justified it the party or parties to benefit under the cy-pr s scheme might be found now. Mr Kenny advanced the claims of appropriately qualified members of the Defence Forces and Mr Matheson those of similar classes of British ex-servicemen. Both submitted that there were not to be found any other classes of persons who could put forward a better claim to benefit as nearest objects of a cy-pr s application of the funds.
In examining the claim of members and former members of the Defence Forces I find myself influenced by the following factors: the paramount intention of the donor was the charitable one of aiding the old and infirm, the particular class chosen to benefit being the old soldiers of the Royal Army serving on the Irish establishment. In the course of well over 250 years since the Charter great political changes have come about. The Kingdom of Ireland and the United Kingdom which later included it have their turn gone and with them the armies of the Crown spoken of as the Army of Ireland and later the British Army of the United Kingdom. But there are now other armies appertaining to the present political divisions of the country and the Defence Forces are the army of the greater part of Ireland comprised in the Republic. They are the army of the political successors of the founder in this part of the country and serve in Ireland. Allowing for changed circumstances, the Defence Forces approximate closely now to the former source of objects so far as this part of Ireland is concerned. Thus, members or former members who are proper charitable objects by reason of wounds, age or infirmity can properly be said to form one obvious class of nearest objects who should be included in the scheme.
It is right in dealing with the claims of members and former members of the Defence Forces to refer again to the Act of 1962. It has been urged on me that it enabled the Court to include the class therein designated of members and former members of the Defence Forces in any cy-pr s schemes I should consider proper to direct, whether or not such class otherwise qualified for inclusion. That raises a difficult question. While I am inclined to the view that this is so, I do not find it necessary to determine the point since I have arrived, dehors the Act, at the conclusion that this class is entitled to partake in the benefits of the scheme directed.
The claims advanced by Mr Matheson on behalf of the class broadly describable as those catered for by the British Legion to benefit from the cy-pr s application of the funds have next to be considered. They would appear to fall into two sub-classes. First, we have the sub-class which had served in the British Army stationed in Ireland before 1922, and had been wounded; and those who had served for seven years in that army in Ireland or elsewhere in a regiment stationed or formerly stationed in Ireland and had become old and infirm. This class falls within the object class of the Charter provided they were discharged in Ireland and live in Ireland. The survivors of that pre-1922 class would now be well in their eighties, but during the continued existence of the class its members should be entitled to benefit under the scheme and appropriate provisions made to that end. The second sub-class which it is said should benefit as nearest objects are men living in the Republic or Northern Ireland who have served or may serve in the British Army in Northern Ireland or abroad after 1922 and qualify otherwise as regards wounds received during service or age and infirmity thereafter and are in need. The main basis of the claim made on their behalf is that the charity was a Royal foundation for the benefit of the King s soldiers serving in the King s Army and that of his successors. Many Irishmen residing in Ireland have since 1922 served in the British Army which is the army of the founder s royal successors and no doubt that may well continue. Some, of course, have served and some still no doubt serve in Northern Ireland. The charity, moreover, had Irish characteristics in that it was here in Ireland that provision was made in the Hospital at Kilmainham for the old soldiers who had become unserviceable or infirm and it provided for those then living here in that discharge in Ireland qualified them. British ex-soldiers return to Ireland on their discharge and thus come to live in the area where the charity provided the relief and benefit afforded by the Hospital. This second class can thus claim to come within so much of the intent of the founder of the charity as was to benefit soldiers of the army of his successors. They also have the additional claim of living in the country where the charity used to operate and which was intended to benefit persons residing in Ireland if and when they otherwise became proper objects of charity. In my view, therefore, British ex-servicemen of the post-1922 class who reside in Ireland and fulfil the other qualifications that would make them proper objects of the charitable intentions of the trust have a good and valid claim to be included in any application of the funds as nearly as possible to the original purposes.
I am unable to envisage any other classes which could have a better claim than former members of the Defence Forces and British ex-servicemen but I consider that it should be left open to other persons or classes of persons to establish a claim to benefit along with them if they can properly do so.
It is not my intention to interfere unduly with the Examiner s discretion on matters of detail but in formulating the scheme he will have general regard to the views I have expressed as to the proper beneficiaries of the cy-pr s application of the funds. Payment of the income to appropriate organisations of former members of the Defence Forces and the British Army catering for the needs of the suggested beneficiaries to be distributed amongst them, would appear to be the best practical method of distribution. The Examiner will no doubt get in touch with such organisations and obtain relevant facts and figures in preparing the scheme. Sufficient information must be obtained to enable a decision to be made as to appropriate allocation of the income. While it would appear that it is unlikely that any class with a valid claim will emerge outside the classes catered for by the above organisations, steps should be taken by advertisement or otherwise to ascertain if any such class exists and the representatives made on behalf of any bona fide claimants should be duly considered.
There are two other matters to which I should refer for the general guidance of the Examiner. The members of what I have described as the pre-1922 class of British ex-servicemen have a particular and paramount claim to benefit, but only for the temporary period of the existence of the class and by means of relief reasonably equivalent to the benefits provided by the Charter, and effect should be given to their claim in appropriate fashion when facts and figures are available regarding them. The second matter arises out of the decision of Mr Justice Johnston in Attorney General v Royal Hibernian Military Hospital 63 ILTR 86 wherein he expressed his grave doubts as to whether the Court in applying the cy-pr s principle for the disposal of the property of a charity situate in this country would have jurisdiction to endow any charitable organisation resident abroad and he felt that he had no alternative but to apply the property of the Royal Hibernian Military School cy-pr s to the carrying on of some charitable work in this country. I agree with the learned Judge s reasoning and conclusions. In this case the benevolent gift of Charles II was of Irish lands, now in part represented by the trust funds. The Corporation was Irish and its charitable work and administration were carried out in Ireland, the local habitation of the charity being in what was formerly part of the Phoenix Park. The same results should therefore apply in this case. No question arises relative to Defence Forces organisations and, in so far as any difficulty might confront the Examiner with regard to the British Legion by reason of its being incorporated abroad, I am informed that it has a local organisation operating in the State, so that provision can he made in the scheme for distribution by such local organisation Mr Justice Johnston remarked with regard to the organisations he was dealing with that there was no reason to suppose that they confined their benevolence to persons within the then Free State. Former members of the Defence Forces may well be living in Northern Ireland as well as British ex-servicemen and provided the operating body carries on its work here there should be no bar, in so far as funds permit, to their aiding proper objects elsewhere. Questions of detail arising on this aspect of the matter can more properly be dealt with on the settlement of the scheme.
The contentions made with regard to the cy-pr s application of the trust funds have necessitated my dealing with that matter first, but the relief sought in para 1(a) of the originating summary summons relative to directing the payments therein specified to the Chelsea Hospital, pursuant to the provisions of s 4(a) of the Act of 1962, remains to be dealt with. It will be recollected that between 1926 and 1929 forty-two of the remaining pensioners in the Hospital exercised the option given to them by the British Government of being transferred to the Royal Hospital, Chelsea, and the remaining nine pensioners became out-pensioners. The cost of the maintenance of the pensioners transferred between 1926 and 1929 and the remaining out-pensioners was met from the provision made in the British votes for the Royal Hospital, Chelsea. It was later agreed between the Irish Government and the British Government that portion of the income arising from the trust funds should be made available to the Commissioners of the Royal Hospital, Chelsea, in respect of the support and maintenance of the transferred pensioners. It is stated by the Chief State Solicitor in his final affidavit that, in the negotiations between the respective Governments, it was conceded and accepted that the cost of maintaining the transferred pensioners in the Royal Hospital, Chelsea, during the period from 1923 to 1951 exceeded all monies, investments and income mentioned in para (a) of sub-s 4 of the Act of 1962 and thereby provided to be paid to the Royal Hospital, Chelsea. When dealing, in the ordinary course, with an application brought in a charity matter to sanction payments to meet the obligations of a charity such payments need to be vouched in appropriate fashion. In this case, however, the Chief State Solicitor s affidavit states how the amounts agreed to be paid were arrived at and from what he says it is clear that, assuming an obligation to exist, the amount arrived at involved a compromise in favour of the Kilmainham Hospital. I see no reason whatever to question the propriety of the compromise so that in so far as the quantum of the claim is concerned no question arises and accordingly I have only to consider whether or not an order should be made implementing the agreement in principle .
The provisions in the Act of 1962 with regard to the making of an order for the payments to the Royal Hospital, Chelsea, also fall within that part of the Act which is in enabling form, leaving it to the Court to decide whether the payment should be made.
In the ordinary way when the Court has the trust funds of a charity under its control, and is in the course of regulating the affairs of the charity, the Court has jurisdiction to permit payments to be made out of the funds of the charity to meet outstanding obligations, even of an unusual character, properly incurred in the administration of the charity. This was done, for example, in the Richmond Asylum case in this Court. The circumstances under which the Royal Hospital, Chelsea, incurred the expense in respect of which reimbursement is sought were undoubtedly unusual. Since 1922 there were insufficient Governors of the Kilmainham Hospital in existence to form a quorum, so that there was no means of administering the affairs of the Hospital. No further pensioners could be admitted to the Hospital and its days as a hospital were coming to an end. In these circumstances the remaining pensioners accepted the offer of the British Government. It would have been well within the trust on which the funds of the Hospital were held for the Corporation, had it been able to function, to have used the income of the trust funds for the benefit of the pensioners in the way of providing for their maintenance. Had the Governors for some reason been unable to provide for the maintenance of the remaining pensioners in the Hospital, the Governors would have had to make alternative arrangements for them. In the ordinary course some appropriate application would he brought before the Court to approve of alternative proposals. If, however, owing to some quite unusual occurrence – say, for example, the burning of the Hospital – emergency arrangements had to be made, it is scarcely to be doubted that obligations reasonably incurred by the Governors to provide for the maintenance of the pensioners would be sanctioned by the Court and provision made to meet such obligations out of the income of the trust funds of the charity. A temporary cy-pr s application of the funds would properly have been called for. As it was, the situation was dealt with by way of the British Government s intervention through the arrangement with the Royal Hospital, Chelsea.
The analogy taken above may not be quite complete, but in principle no great extension of the jurisdiction of the Court is involved in its being exercised to allow the payments in question to be made. If the jurisdiction does fall short in any way, then any question that could arise as to the powers of the Court is met by the provisions of the Act of 1962, enabling the Court to make these payments if considered proper as a matter of judicial discretion.
The circumstances which I have to consider on this aspect of the matter are of a quite unprecedented nature but I view them in this fashion: the maintenance and support of these pensioners could normally, but for the intervening circumstances, have been paid out of the income of the funds. It is not sought to touch capital. The Royal Hospital, Chelsea has borne an expense that would normally have been met inter alia out of the income of the trust funds. There was no impropriety involved in the transaction arising out of altogether unusual circumstances and the income of the Hospital has been relieved of a burden that should properly have fallen on it. Had the aid of the Court been sought in appropriate proceedings to enable the funds to be used in the fashion in which it is now sought to apply them there is little reason to doubt that it would have been forthcoming. I have only to add that those appointed to represent the interests of persons other than members or former members of the Defence Forces who might claim to be entitled to the benefit of the funds do not oppose the payments sought. In all the circumstances my view is that the payment is a proper one to be made out of the income of the charity funds and I shall accordingly make the order sought at para 1(a) in the originating summary summons.
Representative Church Body v The Attorney General
[1988] IR 20
O Hanlon J: A library attached to St Canice s Cathedral, Kilkenny, is divided into two sections. One section, called the Old Library , contains books which were printed in earlier centuries. The other section, called the New Library contains books collected over the last 150 years or thereabouts. The plaintiff, The Representative Church Body, claims ownership of the entire collection under the provisions of the Irish Church Act 1869, and wishes to sell the entire collection comprised in the Old Library and to apply the proceeds towards the maintenance and upkeep of the Cathedral, including the carrying out of repair works which are now urgently necessary. In these proceedings, in which the Attorney General is named as defendant, the plaintiff seeks a cy-pr s order under the provisions of the Charities Act 1961, s 47, authorising the sale of the books and the application of the proceeds of sale in the desired manner, notwithstanding the terms of two wills – that of Bishop Otway, who died prior to 1693, and that of Bishop Maurice, who died, apparently, in the latter half of the 18th century. Most of the books contained in the Old Library are made up of bequests under these two wills, and are affected by the trusts of the wills.
In the case of the will of Bishop Otway, neither the original nor any exact copy of the will can be located, but an abstract of the terms of the will which exists in the Office of Arms in Dublin Castle reads as follows:
Gives books and 200 for library at St Canice s, Kilkenny. Makes provision for fitting up of this library, including desks and shelves and chains for every particular book, partly out of 97.10.0 shillings of Spanish and other foreign gold and old English gold in the hands of George Thornton (of Arran Key, Dublin).
The bequest in the will, dated the 6th January 1756, of Bishop Maurice reads as follows:
I Edward Maurice Bishop of Ossory while I am of sound mind and memory leave my printed books to the library founded by Bishop Otway at Kilkenny all that are now at Dunmore as well as those that are at Kilkenny together with ten double cases of one form made of Dunsick oak now in my library at Dunmore, provided a fair catalogue be made of the books and security given by the Librarian to exhibit them once every year or oftener if occasion to two persons appointed by the Bishop, in his own presence if convenient, provided likewise that an oath be taken by the librarian not to embezzle or deface or lend any book out of the library but to give due attendance to such clergymen and gentleman as may be disposed to study there from six o clock in the morning to the tolling of the bell for morning prayer at the Cathedral of St Canice Kilkenny.
For his attendance and care of these books I bequeath to the librarian and his successors, appointed by the Bishop, Twenty Pounds a year to be paid out of my estate at Milltown in the County of Kilkenny and if it shall happen that this legacy shall be found not to answer the purposes intended I impower the Bishop of Ossory for the time being with the consent of the Dean and Chapter of St Canice to sell the books and apply their price together with the said salary of the librarian towards raising or adorning the imperfect steeple of their Cathedral.
As to the other books donated from time to time to the library, no record exists of such donations or any of them having been made subject to any particular trusts.
An affidavit by the present Dean of Ossory in support of the application deposes that the books in the Old Library are not longer used at all either by the clergy or by members of the laity. Tourists or visitors sometimes ask to see the Old Library as a matter of historical or antiquarian interest. For many years past no librarian has been employed for the Old or the New Library ; the stipend of twenty pounds per annum referred to in the will of Bishop Maurice has long since ceased to be paid, and the Bishop s Vicar for the time being has been acting as honorary librarian.
A further affidavit by David Young, architect, confirms that the Cathedral had fallen into a serious state of disrepair, entailing expenditure in excess of 300,000 for essential and urgent repairs and restorations. It is stated that considerably more money would have to be spent on the Cathedral to carry out a full restoration of the Building. As of 25th May 1987, it was estimated that a sum of 269,568 was required (exclusive of VAT and professional fees) to carry out further urgent work over and above what had been completed in the 1983-1986 period. An appeal launched by the Chapter of the Cathedral had brought in approximately 230,000 towards the end of 1986, obviously leaving a huge gap to be bridged as it now appears that the total expenditure involved will exceed 500,000. If it were permissible to sell the books in the Old Library and apply the proceeds towards the restoration fund, it is estimated that a sum in the region of 90,000 might be realised.
The application is, however, opposed by the Attorney General, and an affidavit sworn by Muriel McCarthy, who is the person having responsibility for Marsh s Library in St Patrick s Close, and Librarian of the Worth Library of Dr Steeven s Hospital, has been filed on his behalf. Ms McCarthy regards the collection of books in the Old Library of St Canice s Cathedral (with which she is familiar) as an important cultural asset for Kilkenny and for Ireland, and she is apprehensive that, if put up for sale, they will leave the country, as there is no effective legal restriction on the export of old books.
It appears to me that Bishop Otway and Bishop Maurice in donating their collections of books to St Canice s Cathedral, intended that a library in the true sense of the word be established as an adjunct to the Cathedral, and that clergymen and lay persons would be able to make use of the books on a regular basis for purposes of scholarship. While the New Library may still be used in this way, it seems clear that no such use has been made of the Old Library on any regular basis for very many years past, and that the books have simply become collectors items for antiquaries.
I further conclude that the original purpose of the charitable gift of the collections of books have ceased to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift, and that in the circumstances of the present case it is permissible to alter the original purposes of the charitable gift (both in the case of the Bishop Otway bequest and the Bishop Maurice bequest) to allow the property given to be applied cy-pres. Bishop Maurice himself contemplated that such a situation might arise and provided by his will that in such event the books might be sold and the proceeds applied towards the repair of the steeple of the Cathedral. The steeple in question was removed completely in the mid-19th century and no longer exists.
I do not find it necessary to settle an elaborate scheme for the purpose of giving effect to the doctrine of cy-pr s in this case, and instead I will merely make an order in the terms sought by the plaintiff, authorising the sale of the collection of books comprised in the Old Library , as identified in these proceedings, in whatever manner the plaintiff may be advised to effect such sale, and to apply the proceeds thereof towards the repair and maintenance of St Canice s Cathedral, Kilkenny.
In The Matter of a Fund Subscribed to Finance the Making of a Film Entitled “The Divine Tragedy”
The Munster and Leinster Bank Ltd. v The Attorney General & Others,
Desmond Leslie, Eileen Courtney and Kathleen Healy
High Court.
29 July 1954
[1957] 91 I.L.T.R 34
Budd J.
July 20, 21 and 29, 1954
Budd, J.
The major question in this case is whether the funds now held by the plaintiff are to be applied cy-près or are they to be repaid in whole or in part to the subscribers? This question necessitates a decision as to whether the persons who subscribed the money towards the production of the film “The Divine Tragedy” did so with general charitable intention or not.
In regard to this question, I have first to consider what principles of law are relevant to the matter here to be determined as to whether a general charitable intention has been shown to have existed or not. Of the cases which have been discussed during the hearing I have found In Re Templemoyle Agricultural School; Ex parte Sheil, I.R. 4 Eq. 295; In re Wilson, Twentyman v. Simpson [1913] 1 Ch 314; and In re McGwire; Gyles v. Glynn [1941] I.R. 33, the most helpful from the point of view of deriving general principles and I wish to refer to certain passages from the judgments in them. In the Templemoyle Case the Vice-Chancellor says (p. 301) “In deciding whether a general charitable intention has been indicated, it is necessary to consider what is the proper meaning of that expression. It does not mean *38 merely an intention to give charity generally, without reference to any specified object; but it means an intention the substance of which is charitable. whether generally and without any specified object, in which case the Crown will prescribe the mode of effectuating it, or for an object more or less accurately specified but with a mode of benefiting the object superadded, which cannot be lawfully or at all carried into execution, in which case the Court will carry out the substantial intention.” In his judgment, classical of its kind, in In re Wilson, Parker J., (at p.320) says
“For the purposes of this case I think the authorities must be divided into two classes. First of all, we have a class of cases where, in form, the gift is given for a particular charitable purpose, but it is possible, taking the will as a whole, to say that, notwithstanding the form of the gift, the paramount intention, according to the true construction of the will, is to give the property in the first instance for a general charitable purpose rather than a particular charitable purpose, and to graft on to the general gift a direction as to the desires or intentions of the testator as to the manner in which the general gift is to be carried into effect. In that case, though it is impossible to carry out the precise directions on ordinary principles the gift for the general charitable purpose will remain and be perfectly good, and the Court, by virtue of its administrative jurisdiction, can direct a scheme as to how it is to be carried out. In fact the will will be read as though the particular direction had not been in the will at all, but there had been simply a direction as to the application of the fund for the general charitable purpose in question.
Then there is the second class of cases, where, on the true construction of the will, no such paramount general intention can be inferred, and where the gift being in form a particular gift—a gift for a particular purpose —and it being impossible to carry out that particular purpose, the whole gift is held to fail. In my opinion the question whether a particular case falls within one of those classes of cases or within the other is simply a question of the construction of a particular instrument.
I have to determine whether the gift in this will, which is in the form of a particular gift, is a gift really for a particular charitable purpose, and for that purpose only, or whether there is a paramount intention to be gathered from the will that the money shall in any event be applied for some more general charitable purpose even if the particular mode of application which is prescribed cannot be carried into effect.”
Finally, Black J. in In re Maguire observed “The principle was stated by Lord Eldon in Mills v. Farmer 1 Mer. 55 to be that where a legacy was given so as to denote that charity is the legatee, the Court does not hold that the mode is of the substance of the legacy, but will effectuate the gift to charity as the substance, providing a mode for the legatee which is not provided for any other legatee.”
There, two things are contrasted — substance and mode. Where there is a particular charitable purpose, the test is whether that particular purpose is “of the substance” of the bequest. If it is, there is no general charitable intention.
Another test word is indicated by Parker J. in In re Wilson; Twentyman v. Simpson [1913] 1 Ch. 314 at p. 321 — the word “Paramount.” I accept the above statements of the principles to be applied in this case, and from the passages I have quoted it is clear that the question I have to pose to myself in relation to the facts of this case is what was the substantial or paramount intention of the various subscribers in regard to their subscriptions. Was there an overriding intention to charity or only merely in forming the particular object. Each case of this kind depends on its own facts and circumstances, and those peculiar to this case must now be considered.
In respect of the subscriptions which were paid by way of loans, I have no difficulty. The documents before me, the advertisements which attracted its subscriptions in this category and the very nature of the form which was signed by these subscribers all indicate clearly what the intentions of the subscribers were. They expected the return of their money with profits. Indeed none of the parties to this case has suggested that these loan subscriptions are impressed with a general charitable intention. I find that they are not impressed with any such intention, and I am satisfied that what I refer to as ‘the loan subscriptions’ are returnable to the subscribers less any sums which are to be properly deductible therefrom towards the expenses of the enterprise and the costs of the proceedings.
The anonymous donors of gift subscriptions by their anonymity indicated that they never expected or intended that their subscriptions would be returned to them. They parted *39 irrevocably with them out and out and they are not returnable.
The difficult category to deal with is that of the so-called gift subscriptions. The first question arising is was the object for which the subscriptions were made a charitable object in the legal sense, that is to say, was the production and display of this film a charitable object as being for the advancement of religion? The portrayal to millions in a reverent fashion of the life and passion of Our Lord in such fashion as to integrate the life and teaching of Christ in the circumstances of the life of our time must assuredly, in my view, tend to the advancement of religion. Accordingly the particular intention was charitable. That particular object, being charitable, having failed I have then to consider whether these gift subscribers evinced a general charitable intention when making their gift, or whether their intention was merely in favour of the particular charitable object, the production of the film and nothing more.
I have been referred in particular to In re Welsh Hospital (Netley) Fund; Thomas v. Attorney-General [1921] 1 Ch. 655 and In re Hillier’s Trusts; Hillier and Anor v. Attorney-General [1954] 1 W.L.R.700. In the former case the finding of Lawrence J., that a general charitable intention had been manifested by the subscribers to a fund for establishing a Welsh hospital for Welsh soldiers wounded or suffering from illness in the 1914, 1918 war, was influenced by the fact that the subscribers intended, in his view, to part with their contributions out and out. In the latter case, which concerned funds subscribed for a hospital at Slough, the Court scrutinized carefully the form of the appeal made and the documents or letters accompanying subscriptions in order to arrive at a conclusion as to the intentions of the subscribers. That is to say whether a general intention was shown to provide a hospital at Slough or whether it was of the essence of the intention that a particular form of hospital, namely a voluntary hospital, should be established and I agree that I should proceed now in the same way and examine the form of the appeal and other relevant documents in order to form a view of the intentions of the subscribers.
In the present case notwithstanding the able argument of Mr. Monks, there seems to me to be good reasons for arriving at the conclusion that I should impute a general charitable intention to these gift subscribers. I do not intend to read the various advertisements and brochures which were printed and circulated and which have been read and reread during the hearing but having perused them all I am satisfied that the major motive of the appeals was to the religious instincts of the possible subscribers. I have further read the documents of all kinds accompanying the subscriptions. I am satisfied from a perusal of these documents that the paramount intention of those who subscribed to the appeals was to advance Christianity and the Christian religion and that the making, exhibition and distribution of this film was merely the machinery selected for that purpose and to carry the intent effect. There are positive indications in this regard. I may in particular mention the case of subscribers whose subscriptions that were accompanied by the printed form completed and filled in by them. There is on the forms provision for a loan subscription on one side and a gift subscription on the other. All subscribers completing these forms knew that they should choose between the two methods. The gift form provided not only for a subscription towards the production of the film but also for the destination of the profits and repayments, which were to go to an Irish charity. The forms used read: “Please treat my subscription as a gift and make repayments along with all profits accruing thereon to Irish Charity.”
In deference to the arguments made as to the meaning of the word “repayments” I feel that I should state my views. It may be true that the word can be read in two different senses. It might be intended to refer only to repayments to be made in the event of success but all the indications are that it was used in the wider sense, to cover any or all repayments that came to be made whether arising from success or failure. The subscriptions were gifts. It is clear that in the event of success the donors did not expect to see their money back. Why should I impute a different intention to the donors in the event of the film not being produced to that which they have expressed in the event of success. The vast bulk of the subscriptions were accompanied by the form but even as regards those that were not, I am satisfied, from the nature of the advertisements and the wide nature of the publicity given to this scheme, that virtually all the subscribers were aware that they could subscribe either by making a gift or a loan, and that those choosing to subscribe by way of gift, though *40 not using the form, had also a general charitable intention.
My view is that a general charitable intention is manifested by the subscribers in the ‘gift’ cases and accordingly the moneys so subscribed, less such sums as may properly be deductible therefrom, should be applied cy-près.
As regards the expenses incurred by Mr. Leslie. In my opinion all the subscribers parted with their money well knowing that the expenses would have to be met out of those subscriptions. They must have been aware that nothing could be done unless and until money was subscribed and that the collection would involve expense. This applies equally well to the ‘loan’ subscribers as to the ‘gift’ subscribers. The ‘loan’ subscribers lent their money not only for the purpose of producing the film but also for the purpose of financing the project as stated in the loan forms. The anonymous gifts are in this respect in the same position as the ‘gift’ subscriptions. The expenses will therefore be borne by each category of subscriptions pro rata. There will have to be an inquiry before the Examiner as to what amounts are proper to be allowed for expenses to Mr. Leslie and the Bank. When the proper amounts have been found, they will be deducted pro rata from each category of subscription. I shall direct that the loan subscribers are then to be paid back the balance of their respective loan subscriptions less their share of the expenses deductible. The gift subscriptions, less their proper share of the expenses, will be distributed cy-près after a scheme has been prepared and approved. I shall refer it to the Examiner to prepare such scheme. When drafting the scheme the Examiner will bear in mind that some gift subscribers have indicated the charities which they would like to benefit.
McGee v. A.G.
[2002] IEHC 87 (25 July 2002)
Judgment of Mr. Justice Vivian Lavan delivered the 25th day of July, 2002.
1. These proceedings arise out of an application by the plaintiffs to have the proceeds of sale of trust property applied cy-pres. The plaintiffs are trustees of a trust declared by a deed of conveyance executed in 1892. The defendant is responsible for enforcing charitable trusts and is being sued as the custodian of charities.
2. The plaintiffs seek the following reliefs pursuant to Section 51 of the Charities Act, 1961:
1. An order identifying the beneficiaries under the said trust. The benefit in question is the provision of a primary Catholic education for local male Catholics in Youghal. It is to be noted that charitable trusts are not subject to the same requirements relating to certainty of objects as private Trusts are. What is required is that the class must be defined with sufficient certainty to enable the trustees, or the court, to determine theoretically whether any given individual is or is not a member of that class.
2. A direction as to whether the said trust may be regarded as having been made by gift and if so identifying the donor of such gift.
3. A determination as to who are the present objects of the said trust.
4. A direction as to whether it may be appropriate to assume that the purpose for which the said trust was established have been accomplished or substantially met.
5. A direction as to whether it is appropriate that a scheme should be framed pursuant to Section 47 of the Charities Act, 1961 and, if so, the terms of which the said scheme should be framed: that is whether the residue of the donors gift is applicable cy-près.
6. A direction as to the application of the proceeds of sale of the trust property and as to whether the trustees are at liberty to utilise such proceeds in accordance with proposals outlined in the affidavit supporting the plaintiffs case.
7. Such further and other directions as may be thought fit.
3. The plaintiff’s in the present case contend that the original purposes of the charitable trust in question have been fulfilled as there is adequate schooling for Catholics in the Parish of Youghal. They therefore seek to have the proceeds of sale of the remainder of the trust property applied cy-près in an effort to discharge part of the Parish debt. The Attorney General objects to this as it is felt that the proceeds of sale should continue to be used for educational purposes which is closer to the intention of the donor.
4. The Law: where a gift is made to charity, it may turn out to be impossible or impracticable to give effect to the intentions of the donor in the precise terms which he intended. By virtue of the cy-près doctrine, where a donor discloses a clear intention to make a charitable gift, either in a deed of conveyance or in a will, which subsequently turns out to be impossible to execute, a scheme may be made for the application of the property for other charitable purposes as near as possible to those intended by the donor. As Meredith J. stated in Governors of Erasmus Smith’s Schools -v- Attorney General (1931) 66 I.L.T.R. 57, at p. 61:
“Courts of Law adapt the statement of a charitable intention to suit altered circumstances and conditions with a view to giving effect to the real intention. Donors cannot be expected to provide expressly for more than the world and the times with which they are familiar.”
5. At common law there can be no question of an application cy-près until it is clearly established that the purpose of the donor cannot be carried into effect (Attorney General -v- Boultbee (1794) 2 ves. 380, at p. 387). This area is now governed by Section 47 of the aforesaid Act of 1961 which allows a cy-près order to be made in circumstances where there were difficulties in implementing the original terms or where more effective use might be made of the trust property by framing an alternative scheme. I note that although Section 47 aforesaid has caused substantial inroads to be made into the restrictive common law approach to the cy-près doctrine, it is still desirable and necessary to have due regard for the wishes of the donor so as to avoid the threat of making the practice of donating to charity a veritable shot in the dark.
6. Where the intention of the donor is perpetual and has been carried into effect but ceases to be practicable, there is the option of a cy-près application. For example, where property has been given out to a particular charitable institution and the gift takes effect when the institution thereafter comes to an end, the property, belonging to the charity, will be applied cy-près. The courts involvement with cy-près applications normally only arises in the context of administering a charitable trust where the donor has not identified the way in which the trust fund is to be applied.
7. According to Halsbury’s Laws of England (third edition, 1953) where the donor has specified a particular mode of application and that mode becomes incapable of being performed, the court can proceed as if the direction had never been expressed at all but only where the donor had a general charitable intention which transcended the particular mode of application prescribed. Conversely, in circumstances where the particular mode of application specified in the trust is the entire essence of the donors intention, then the Court has no power to direct any other charitable application in place of that which has failed. Assessing whether or not the particular mode of application is the essence of the donors intention may be facilitated by an examination of the language of the donor and or any special terms or conditions mentioned in the trust.
8. In seems to me that the primary rule to be observed in the application of the cy-près doctrine is that the intention of the donor must be observed as far as possible and regard must be had to the spirit of the gift. Thus, if the donor names a particular object which is capable of taking effect, any application cy-près that becomes necessary must be restricted within the limits of that object. The mode of application must as far as possible coincide with the donor’s wishes. Thus objects which are very near the donors intention will always be selected in preference to those more remote.
9. In certain circumstances surplus funds may remain where a charitable purpose has been completed or where full provision has been made for its requirements and provided that it is an absolute and perpetual gift to charity, these funds may be applied cy-près. See the case of The Trusts of the Rectory of St. John (1869) I.R. 3 Eq 335. There a surplus remained after providing for the maintenance of the choir and choral service at the Cathedral Church in Cork City as required by the terms of the trust. Chatterdon V.C. held that as part of these monies was not required for the fulfilment of the donor’s intentions, some of the funds might be applied cy-près in the purchase of an organ for the church, a purpose which was essential for the carrying into effect of that intention.
The legal submissions of the Plaintiff’s:
10. The property the subject matter of this application is property that was vested in the plaintiffs and their successors in office for and on behalf of the Catholic parishioners of Youghal. It is in a very real sense Church property even though it was acquired for and devoted to a particular purpose. That purpose is identified in the deed of the 15th September, 1892. However although the primary purpose of the acquisition is so identified this is not a purpose imposed upon the property by any donor. It was a purpose stipulated by the trustees themselves and it was a purpose designed to meet a perceived need. The reality therefore was that this property was the property of the Parish and like all Church property of a similar nature could be used by the Parish to meet its needs and the needs of its parishioners. It is in that regard no different from virtually all of the property of the Catholic Church in Ireland. It is therefore mischievous to treat this Application as if one was endeavouring to ascertain the wishes of the original Donor and to apply those wishes to the requirements of the 21st century. Such an exercise is unreal.
11. Insofar as the deed identified the purposes and insofar as they constitute a charitable trust then those purposes have the following characteristics:
(a) they were to benefit Catholics;
(b) they were to benefit local Catholics of Youghal;
(c) they were to benefit local male Catholics in Youghal;
(d) in particular, the benefit to such persons was the provision of primary Catholic education. That provision was not available to them when the trust was established.
12. Insofar as the educational element of the trust was concerned, it is the case that the purpose has been fulfilled in that male Catholics have a choice of schools enabling them to obtain primary education in Youghal. That particular need has therefore clearly been met.
13. The Attorney General appears to be of the view that the citizens of Youghal do not have adequate educational facilities and that some enquiry should be made so as to ascertain whether or not the existing facilities are in fact adequate. That exhortation should be addressed to the party responsible for providing such facilities, to wit, the State. Insofar as this particular Church property is concerned, the Parish has established that the need has been met but that there are other purposes to which the property [or the proceeds thereof] can be devoted. These purposes are manifestly beneficial to parishioners and other citizens of Youghal and this is why they were provided by the Catholic Parish. However as a result of such provision the Parish is indebted and this indebtedness can only be repaid by voluntary contributions from parishioners. Since these funds are now regarded as surplus to the immediate requirements of the Parish, it is entirely prudent that they should be released so as to reduce the debt.
14. Not merely is the Attorney General endeavouring to impose a burden upon the Parish which is by law imposed upon the State but he is also endeavouring to expropriate property that is strictly speaking the property of the Parish. In both instances he is acting contrary to the Constitution of Ireland.
THE CONSTITUTION:
15. Article 42.4 provides as follows;
“The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents especially in the manner of religious and moral formation.”
16. The existence of this duty was recognised by the High Court and the Supreme Court in Crowley -v- Ireland [1972] I.R. 241, [1981] I.R. 102.
17. It obviously follows that neither the Catholic Church nor any other private organisation can be impelled to provide any educational facilities save by agreement.
18. Particular provision is made for religious property in Article 44.2 of the Constitution. Article 44.2.5 provides as follows;
“Every religious denomination shall have the right to manage its own affairs own, acquire, and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.”
Article 44.2.6 is in the following terms;
“The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.”
19. The Attorney General is endeavouring to insist that the property of the Church should be administered in a particular manner and is directly contravening these provisions. Furthermore in requiring that the funds of the Parish be diverted for non-Parish purposes he is in effect directing the expropriation of Church property.
20. The constitutional duty of the State to provide education has now found a statutory basis in the Education Act, 1998 and the entire tenor of the Act makes clear that all schools are to be funded from monies provided by the Oireachtas.
THE CHARITIES ACT, 1961:
S.51 of the 1961 Act is in the following terms;
“(1) In every case of a breach or supposed breach of any trust for charitable purposes or whenever the direction or order of the High Court is considered necessary for the administration of any trust for charitable purposes the Board or, with the consent of the Attorney General any person may apply to the Court for such relief as the nature of the case may require and the Court may make such order thereon as the Court thinks fit.
(2) Where any of the circumstances specified in subsection (1) of Section 47 exists in relation to a charitable gift which is the subject of an application under this section, the Court may if it thinks fit, on such application, frame a scheme for the application cy-près of the property comprised in the charitable gift.”
Accordingly if in the course of an application for directions the court should conclude that the property should be applied cy-près then it can do so under this Action.
21. The occasions for applying property cy-près are set out in s.47 of the 1961 Act.
“(1) Subject to subsection (2), the circumstances in which the original purposes of a charitable gift may be altered to allow the property given or part of it to be applied cy-près shall be as follows:-
(a) where the original purposes, in whole or in part –
(i) have been as far as may be fulfilled; or
(ii) cannot be carried out, or cannot be carried out according to the directions given and to the spirit of the gift; or
(b) where the original purposes provide a use of part only of the property available by virtue of the gift; or
(c) where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction and to that end can suitably, regard being had to the spirit of the gift, be made applicable to common purposes; or
(d) where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased, either to be suitable, regard being had to the spirit of the gift or to be practical in administering the gift; or
(e) where the original purposes, in whole or in part, having since they were laid down –
(i) been adequately provided for by other means; or
(ii) ceased, as being useless and harmful to the community or for other reasons, to be in law charitable; or
(iii) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift.
(2) Subs. (1) shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy-près, except insofar as those conditions require a failure of the original purposes.
(3) References in the foregoing subsections to the original purposes of a gift shall be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable.
(4) It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy-près, to secure its effective use for charity by taking steps to enable it to be so applied.
(5) This Section shall apply to property given for charitable purposes, notwithstanding that it was so given before the commencement of this Act.”
22. If the property is to be regarded as the subject matter of a charitable gift then it is clear that there is scope for a scheme to be framed under this section. It will be noted that the section allows a scheme to be framed inter alia where the original purposes have been as far as may be fulfilled in whole or in part. Even the Attorney General concedes that the purposes have at least ceased in part.
23. We will, if necessary, refer to Re Royal Kilmainham Hospital [1966] I.R. 451 and Re Worth Library [1995] 2 I.R. 301. [See also Delany, Equity & The Law of Trusts in Ireland, p. 306].
Submissions on behalf of the Attorney General:
24. These proceedings concern certain properties in Strand Street, also known as Marine Terrace, in the town of Youghal. The properties were formerly a Christian Brothers Monastery. Adjoining them is a school, in which the Christian Brothers taught for many years. The school was sold to the Minister of Education in November, 1996 and it is now proposed to sell the former Monastery as well, this time for development.
25. The Monastery is held pursuant to a deed of conveyance, re-conveyance and appointment of trustees dated 15th September, 1892. The trustees are the Parish Priest and the Bishop of Cork.
26. The deed of 1892 deals with a number of properties, and sets out the trusts upon which the various properties were held. So far as relevant to the Monastery, the Deed of 1892 provides that the properties comprising the Monastery are to be held:-
“ … IN TRUST for the Roman Catholic Parishioners of the said Parish of Youghal forever the rents, issues and profits to be used and applied for providing free education for the Poor Roman Catholic Male Children of said parish of Youghal under the joint control, direction and management of the persons who shall be successively Roman Catholic Bishops of the Dioceses of Cloyne and Roman Catholic Parish Priests of the Parish of Youghal …”.
27. The plaintiffs contend that insofar as the trust is educational, its purposes have been fulfilled, and seek to have the proceeds of the sale of the properties applied cy-près, to the reduction of the Parish debt.
28. Two basic issues arise:
(a) Are the circumstances such as to make it appropriate to apply the property cy-près?
(b) If so, is the proposed scheme sufficiently close to the original objects?
CY-PRÈS OCCASION
29. As protector of charities, the Attorney General must be satisfied that a cy-pres occasion exists before he can support a cy-pres scheme. Section 47(1) of the Charities Act, 1961 sets out “the circumstances in which the original purposes of a charitable gift may be altered to allow the property given or part of it to be applied cy-pres.”
30. The nub of the plaintiff’s case on this aspect is as follows:-
(a) that the two Catholic primary schools in the Parish are entirely adequate to meet the education requirements of the parish. Both premises are in excellent condition;
(b) as a result of the earlier scheme framed by the Charity Commissioners, a sum of over £92,000 is available for any requirements. Even if both schools had to be rebuilt, which the plaintiffs suggest is inconceivable, the maximum contribution per school to be raised by the Parish would be £50,000 under the present Department of Education Regulations;
(c) there are two other primary schools in the parish namely a Gaelscoil and a primary school for Protestant children known as South Abbey National School. The plaintiffs maintain that the parish has no responsibility for either of these schools.
31. The plaintiffs have based their case on the argument that, insofar as the trust is educational, its purposes have been fulfilled. It is submitted that this approach is incorrect, in that it cannot be said that there will never again be any poor Roman Catholic male children in need of primary education.
32. By letter dated 2nd March, 2000 from the Office of the Attorney General to John L. Keane & Co., the solicitors for the plaintiffs, the point was made;-
“I don’t see how you can determine whether the educational needs of each school in the parish have been met without inviting each school in the parish to identify what needs, if any, they have which have not been met and which could not be met out of the earlier cy-près scheme.”
33. The plaintiffs have declined the suggestion from the Attorney General’s office that the views of the schools in the area should be ascertained, apparently on the grounds that education is no longer the responsibility of the Parish but of the Minister for Education.
34. It is submitted that the increasing involvement of the State in primary education does not of itself mean that a cy-près occasion exists in respect of all trusts relating to primary education. It cannot be said that the use of non-state funds in relation to primary education is contrary to, or inconsistent with, the constitutional and statutory scheme now in place.
35. Even at the time of the trust deed, the concept of free primary education was known. The trust deed was made in September, 1892. Earlier that year, the Education (Ireland) Act, 1892 was passed. While largely devoted to compulsory school attendance by children between six and fourteen, it is interesting to note that Section 18 of the Act prohibited the charging of fees by certain “elementary” schools and placed limits on the fees which could be charged by other elementary schools.
36. Accordingly it is submitted that the plaintiffs have erred in declining the suggestion from the Attorney General’s office to investigate further the needs of local schools, and have failed to offer sufficient information to establish that a cy-près occasion exists.
APPLYING THE PROPERTY CY-PR ÈS – GENERAL PRINCIPLES
37. Assuming, contrary to the foregoing, that it is appropriate to apply some or all of the property cy-près, the question then arises as to particular method in which the property should be so applied.
38. Delaney, The Law Relating to Charities in Ireland, revised edition, explains the doctrine of cy-près in the following terms (emphasis added):
“Where a clear charitable intention is expressed, it will not be permitted to fail because the mode, if specified, cannot be executed, but the law will substitute another mode cy-près, that is as near as possible to the mode specified by the donor.”
As to how that intention should be ascertained, in Governors of Erasmus Smiths Schools -v- Attorney General (1932) 66 I.L.T.R. 57, at p. 59, Meredith J. quoted Lord Eldon:-
“The question is not so much what was the intention, as what, in the contemplation of law, must be presumed to have been the intention.”
At p. 60, Meredith J. observed:
“ … with the motive which actuated a donor to devote property to a charitable purpose the Court is not concerned, but only seeks to determine the charitable purpose intended to be furthered.”
And later:
“The paramount intention is what the Court, in applying the cy-près principle, regards as the fundamental charitable intention implied in the expressed charitable intention as a whole. The primary object and the underlying intention indicate two conceptions which are used in determining the paramount intention.”
More recently, in Re Worth Library [1995] 2 I.R. 301, at p. 343 the High Court (Keane J.) stated:
“It is desirable that the original intentions of the donor should be adhered to as far as is possible.”
39. Some assistance may also be derived from the Charities Act, 1961. Firstly, since s. 47(1)(e) refers to the original purpose having ceased to provide a suitable and effective method of using the property, the cy-près mode should itself pass the test of “suitable and effective”, if the circumstances which permit the property to be applied cy-près are those set out therein.
40. Secondly, Section 47(4)(4) places a trustee of a charity under a duty, where the case permits and requires the property or some part of it to be applied cy-près, to secure its effective use for charity by taking steps to enable it to be so applied. Again it is implicit that the cy-près mode should provide an effective use for charity.
41. Picarda, The Law and Practice Relating to Charities 3rd ed., at pp. 392-393 suggests
“It is no doubt a good working rule that a trust which falls squarely under one particular head of charity within Lord McNaghten’s classification in the Pemsel case will only very exceptionally be diverted to another head. Indeed the only examples which have occurred and which therefore spring to mind are those cases where there has been a failure of a purpose under the fourth head and no purpose eiusdem generis can be identified. Otherwise where a trust for the relief of poverty fails the property should be and is applied to another purpose which relieves poverty, and Trusts for the advancement of education and religion are replaced by other Trusts for the purposes falling within the same category.”
APPLYING THE PROPERTY CY-PR ÈS – THE PARTICULAR CASE
42. Applying the Pemsel classification as set out in Commissioners for Special Purposes of Income Tax -v- Pemsel [1891] A.L. 531, it is submitted that the gift in this case is best regarded as a gift for the advancement of education.
43. The educational content of the gift is obvious, and while the education is to be provided for those of a particular religion and is to be subject to religious control, direction and management, the words of Meredith J. in Governors of Erasmus Smith School -v- Attorney General (1932) 66 I.L.T.R. 57, at p. 62, are apposite in this regard:-
“The second and only other proposition on which I find it necessary to insist is that there is no fixed rule or principle that wherever there is a provision for religious instruction, or in favour of religion, that provision must be regarded as of primary importance, or in other words, that the propagation of religion is the primary object. Religion may be made a matter of primary importance or it may not, and the question of the position intended in each particular case is one to be decided, if possible, on the construction of the instrument of foundation, extrinsic evidence as to the intention only being advisable if the instrument of foundation is ambiguous or does not provide adequate material for arriving at a decision.”
44. It is submitted that the proposed new objects are not as close as possible to the original objects or within the spirit of the original objects. They do not provide sufficiently or indeed at all for any education element. If necessary, provision could be made for all school students in the parish – male and female, Catholic or Protestant or Gaelscoil – to benefit from educationally oriented objects.
45. The foregoing submissions of both parties are based on the evidence adduced by Affidavit on behalf of the plaintiffs and the defendant.
The Facts:
46. The facts of this case revolve around a former Christian Brothers Monastery in Youghal, Co. Cork. Adjoining the Monastery is a school which was sold to the Minister of Education in November, 1996. It is now proposed to sell the Monastery. The Christian Brothers community vacated the Monastery in June, 1997. Since that time the trustees have entered into a conditional contract for the sale of the premises (the Monastery).
47. The premises were the subject matter of a Landed Estates Court Conveyance made in 1868. It is clear from the subsequent title that the property was acquired in trust for the Roman Catholic Parishioners of the Parish of Youghal. The terms of this trust are referred to in the subsequent re-conveyance and the appointment of trustees, executed in September, 1892. At that time a practice existed whereby a Priest of the Parish would take the property in his own name and, in the absence of any specific declaration of trust, in the relevant deed. The purchase money for the property would have been raised by collections or voluntary donations from parishioners.
48. The trust under which the property is held is described in the deed of the 1892 conveyance in the following terms:
“In trust for the Roman Catholic Parishioners of the … Parish of Youghal forever the rents … and profits to be used and applied for providing free education for the poor Roman Catholics male children of the … Parish of Youghal.”
49. The trust indicates that the beneficiaries under the trust for the Roman Catholic Parishioners of the parish of Youghal and in absolute preference is undoubtedly intended to be forwarded to this class of persons. The deed then identifies the trustees of the property as the successive Roman Catholic Bishops of the diocese of Cloyne and the Roman Catholic Parish Priest of the Parish of Youghal. The trust was performed when the property was leased to the Christian Brothers who used the property to establish a primary school.
50. The plaintiffs outline what they submit are the salient points in relation to the aforesaid trust as follows:
1. Insofar as the trust is educational its purposes have been fulfilled.
2. As a result of an earlier scheme framed by the Charitable Commissioners, the sum of £92,518 is available to meet educational requirements.
3. The parish is responsible for two primary schools. Gortroe Primary School is owned by the trustees on behalf of the Parish but the Department of Education has a lease hold interest in the property under a standard 99 year lease. Bun Scoil Mhuire is owned by the trustees of the Presentation Nuns and again the Department of Education has a similar lease. There is a Gaelscoil in the Parish but this premises is owned by the Department of Education. Although this school is owned by the Department of Education and is therefore not in the trusteeship of the Parish the Parish pays a capitation grant for the pupils attending the Gaelscoil because it is under the patronage of the Bishop. Both of the schools in the Trusteeship of the Parish are described as being in excellent condition. The Parish has no responsibility for the other two primary schools in the Parish.
4. The Parish is indebted in the sum of £497,000 (€631,059.82) arising out of a building programme commenced in or about 1990. The debt is attributable to the refurbishment of the League of the Cross Hall in Youghal, the refurbishment of Gortroe School and the erection of the Holy Family Hall. The plaintiffs submit that there is a significant educational content in the use of the League of the Cross Hall and the Holy Family Hall and they further submit that there is a general benefit to the local community arising out of the use of these properties. The League of the Cross Hall, for example, is used for educational purposes including the running of adult education courses, as well as courses for people who drop out of mainstream education. The hall is also made available for use by the local literacy group.
5. Following the sale of the Christian Brothers Primary School a cy-près scheme was devised by the Commissioners of Charitable Donations and Bequests (hereinafter called the Commissioners) to the affect that:
“The trustees shall retain the money received by them from the sale of Youghal Christian Brothers National School at Strand Street, Youghal, Co. Cork in trust with liberty to apply the income and the capital (with the prior consent of the Commissioners) strictly for educational use for all children attending Primary or Secondary Schools in the Parish of Youghal.”
51. The trustees accepted these terms and thus the proceeds of the sale of the Christian Brothers Primary School are available to meet the general educational requirements of children attending school in Youghal. However, the terms of the scheme were accepted under protest and the trustees are unhappy with the terms.
52. In affect, in this case, the trustees seek advice in relation to the application of the proceeds of sale of the remainder of the trust property (the Monastery). The plaintiffs refer to the property having being initially purchased with the aid of money provided by local parishioners. It is described by the plaintiffs as having being acquired “by a Catholic Parish” “out of Parish resources” “for its Catholic Parishioners”. The plaintiffs thus seek liberty to utilise the proceeds of sale of the remainder of the trust property (the Monastery) in order to reduce the Parish debt. This debt is being met by weekly contributions from the Roman Catholic Parishioners of the said Parish. The plaintiffs are of the view that due to lisation of the proceeds of the sale of the Monastery, so as to reduce the Parish debt, would be more beneficial and more in keeping with the terms of the trust than was the scheme framed by the Commissioners as aforesaid.
53. Finally the plaintiffs submit that the educational requirements envisaged when the trust was declared in 1892 have been fulfilled in that it would be nonsensical to tie up the proceeds of sale of part of the trust property (the Monastery) under the terms of the Commissioners cy-près scheme as the money could not be put to any affective educational use in the town.
54. On behalf of the Attorney General, Mr. Declan Moylan, submitted as follows:
That the scheme proposed by the plaintiff is not as close as possible to the original objects of the donor as it fails to have sufficient regard to the educational nature of those objects. It is also contended that the plaintiffs proposed scheme has been framed without sufficient consideration being given to the educational needs of the locality. Thus, the defendant maintains that regard must be had for the needs of the other two schools in the Parish to the extent that their educational needs have not been met. The defendant asserts that “there are always things schools need that cannot comfortably be met by current and available resources”. It is therefore proposed by the defendant that all the schools in the Parish be invited to identify what needs, if any, they have and which of these have not been met. In response to this proposal the plaintiff contends that it is the obligation of the Minister for Education to educate the young citizens of the State and not the responsibility of the Parish. Ultimately the defence considers that it is too grand a statement to make that the trust is being fulfilled and it cannot be said that there will never again be any poor Roman Catholic male children in need of primary education. Turning to the issues that have to be decided in this case let me say at the outset that in my view the Attorney General’s objections are reasonable and proper and it appears to me that they are the result of a considered view of the educational needs of the schools in the Parish.
55. I am greatly troubled by the fact that the trustees agreed with the Commissioners to a cy-près scheme on the 18th November, 1997. That scheme concerned the sale of the Christian Brothers School. The school and the Monastery (inter alia) made up the trust assets. The school was sold by the trustees to the Minister of Education under a contract for sale made the 15th November, 1996. As a result of this an application for consent was made to the Commissioners which I shall refer to. The Christian Brothers community left Youghal in or about June, 1997. They vacated the premises and returned the keys thereof to Dean Thornhill, one of the trustees. The premises have being vacant since that time. The trustees applied to the Commissioners for consent to sale and for further permission to apply the net proceeds of this sale in reduction of the Parish debt. The Commissioners refused such application. Instead, a cy-près scheme was framed by the Commissioners in the following terms:
“The recitals of the order of the Commissioners dated the 18th November, 1997, following the usual recitals, namely that by deed of conveyance, Re-conveyance and the Appointment of trustees made the 15th day of September, 1892 between the parties therein identifies and further recited that the property upon which Youghal CBS National School, Strand Street, Youghal, Co. Cork was subsequently erected was, inter alia, conveyed to trustees in trust for the Roman Catholic Parishioners of the said Parish of Youghal forever the rents, issues and profits to be used and applied for providing free education for the poor Roman Catholic male children of the said Parish of Youghal under the joint control, direction and management of the person who shall be successively Roman Catholic Bishop of the diocese of Cloyne and Roman Catholic Parish Priest of the Parish of Youghal and such Bishop and Parish Priest shall be successively trustees of the said garden in Strand Street and the said two houses and premises in Marine Terrace.”
56. The order further states as follows:
“And where as the property the subject matter of the trust has been sold with the consent of the Commissioners to the Minister for Education for the price or sum of £120,000 and the trustees are of the view that the strict purposes of the trust, to provide free education for the poor Roman Catholic male children of the Parish of Youghal, are no longer suitable for modern educational requirements.
And whereas Most Reverend John Magee of Cobh in the Co. of Cork Bishop of Cloyne and Very Reverend St. John Dean Thornhill of Youghal in the Co. Of Cork Parish Priest of the County of Youghal, have requested the Commissioners to frame a scheme for the application cy-près of the net proceeds of sale of the said premises.
NOW the said Commissioners by virtue of the jurisdiction vested in them by Section 29 (4) of the Charities Act, 1961 as amended by Section 8 of the Charities Act, 1973 HEREBY DIRECT that from the date hereof the said charity shall be managed and administered in accordance with the following Scheme namely:
That the trustees shall retain the money received by them from the sale of Youghal CBS National School, Strand Street, Youghal, Co. Cork intrust, with liberty to apply the income, and the capital (with the prior consent of the Commissioners) strictly for educational use for all children attending Primary or Secondary Schools in the Parish of Youghal.”
57. I am satisfied that the cy-près scheme of the 18th November, 1997 supersedes the trust established originally and, subject to the decision of the courts, governs the disposal of the remainder of the assets of the original trust.
58. I accept that the trustees accepted the scheme of 1997 under protest. I accept the reservation that counsel’s opinion was obtained at the time but given the economic factors in bringing the matter to the High Court, the trustees decided to accept the same. I accept that there were economic realities in bringing a sum of £120,000 before the courts bearing in mind the costs of such application. Nonetheless the trustees are bound by that agreement.
59. There is no doubt in my mind that the Attorney General’s objections in these proceedings would be well founded against any attempt by the trustees to do other than apply the funds under that scheme strictly in accordance with the provisions thereof.
60. It seems to me therefore, in light of the foregoing, the question is whether this court can sever the proceeds the subject matter of this application from the scheme cy-près and whether this Court may decide that the proceeds of the sale the subject matter of these proceedings can be used for the purposes now relied on by the plaintiffs.
61. To pose the question in the following way it appears that what is needed to be resolved is whether the original proposes of the charitable gift of the property have ceased to provide a suitable and affective method of using the property and whether it is permissible to alter the cy-près scheme of the 18th November, 1997. That poses the question whether the advancement of educational facilities in all the schools of the parish is closer to the spirit of the gift than the discharge of a parish debt incurred in the pursuit of enhancing the community? Put another way, one of the issues to be answered is whether a Catholic Parish should be required to use its own resources to provide educational facilities for non-Catholics. Of further relevance is a question of whether the funds that will now become available can properly be regarded as “surplus to requirements?” It seems to me that in the search for an answer, a suitable and affective method of using the proceeds of sale needs to be found so as to continue to give affect to the provisions of the 1997 scheme as distinct from the affect of the original expressed in the 1892 Deed as being for the “Roman Catholic Parishioners”.
62. The defendant argues that the gift in question is educational. In relation to the category into which this gift falls, it is worth noting that Lord MacNaghten’s four categories as set out in Commissioners for Special Purposes of Income Tax -v- Pemsel [1891] AC 531, at 583 are not generally regarded as being mutually exclusive. These categories are as follows:
1. Trusts for the relief of poverty.
2. Trusts for the advancement of education.
3. Trusts for the advancement of religion.
4. Trusts for other purposes beneficial to the community.
63. When considering the submissions made on behalf of the defendant in the instant case that the plaintiff’s proposed new objects do not provide “for any educational element”, it is noteworthy that in Re Worth Library [1995] 2 I.R. 301, at p. 337, Keane J. as he then was, made the following general observation as regards the nature of education:
“Gifts for the advancement of education would embrace, not merely gifts to schools and universities … “education” has been given a broad meaning so as to encompass gifts for the establishment of theatres, art galleries and museums and the promotion of literature and music. In every case, however the element of public benefit must be present and, if the benefit extends to a section of the community only, that section must not be numerically negligible.”
64. I also note the opinion expressed in Re Shaw’s Will Trusts [1952] Ch. 163, at p. 172, where Vaisey J. expressed the rather sound view that “education” included “not only teaching, but the promotion and encouragement of those arts and graces of life which are after all, perhaps the finest and best part of the human character.” These loudable sentiments tend to confer a stamp of approval on attempts to contribute to the betterment of a class of persons or a community, even if not in a classroom setting. Such judicial thinking conveys the message that education cannot and should not be locked in a school.
65. In the light of those opinions, with which I concur, I now look at the objects which the trustees wish to apply from the sale of the Monastery subject to the provision of the cy-près scheme of 1997. The Very Reverend Dean Thornhill deposes at paragraph 9 of his affidavit the following salient points in relation to the trust:
“(a) Insofar as the trust is educational its purpose have been fulfilled. The two Catholic Primary Schools of the Parish are entirely adequate to meet the educational requirements of the Parish and both premises are in excellent condition.
(b) As a result of the earlier scheme (of 18th November, 1997) framed by the Commissioners the sum of £92,518 (€117,473.63) is available to meet such requirements. Even if both schools had to be rebuilt (which is inconceivable) the maximum contribution per school to be raised by the parish would be £50,000 (€63,486.90) under the present Department of Education regulations.
(c) There are two other primary schools in the Parish namely Gaelscoil Chorain and a Primary School for Protestant children known as South Abbey National School. The Parish has no responsibility for either of these schools.
(d) The Parish is indebted in the sum of £497,000 arising out of a building programme commenced in or about the year 1990. The debt is attributable to the refurbishment of the League of the Cross Hall, Catherine Street, Youghal; the refurbishment of Gortroe School; and the erection of the Holy Family Hall. I have set out in the memorandum a schedule of the moneys expended in the course of the building programme. I have also set out in that memorandum the purposes for which the League of the Cross Hall and the Holy Family Hall are used and that it is clear that there is a significant educational content in such user. I would also suggest that the other purposes for which the properties are used are of general benefit to the community which I hope to serve.
(e) Upon the sale of the CBS Primary School the trustees sought consent to apply the net proceeds in reduction of the Parish debt. This permission was refused and a cy-près scheme was framed by the Commissioners in the following terms;
‘That the trustees shall retain the money received by them from the sale of Youghal CBS National School at Strand Street, Youghal, Co. Cork in trust with liberty to apply the income and the capital (with the prior consent of the Commissioners) strictly for educational use for all children attending Primary or Secondary Schools in the Parish of Youghal.’
It cannot be assumed (see further deposed) however that this scheme was acceptable to the trustees. It has however been accepted under protest even though the trustees were and are of the view that utilisation of the proceeds in the manner suggested by them is more beneficial and more in keeping with the terms of the trust than the scheme actually framed. In any event the proceeds of that sale are available to meet the general educational requirements in the terms I have outlined above.”
66. At Schedule 3 of that Affidavit the deponent exhibits a Memorandum which describes the condition of the town of Youghal as he found it some seven years ago on his been appointed parish priest.
67. I am satisfied that I ought to place emphasis on the contents of same and I quote same as follows:
“Seven years ago I came to Youghal as Parish Priest and very soon I became aware of the following:
1. The rundown appearance of the town, the large number of “for sale” signs, the shabby, unattractive, dilapidated buildings on the main street.
2. The general ear of depression and apidy due to the high level of unemployment.
3. The lack of a community centre where meetings, courses, groups (of) various kinds could meet.
As I listened to people in the community I became convinced that a community meeting place was an absolute necessity. Situated in the centre of the town was a large building in ruins called the League of the Cross Hall which on investigation offered great possibilities if restored and renovated. After detailed negotiations FAS agreed to undertake the restoration work by supplying the labour and expertise but the building materials, refurbishment and furniture cost £380,000 (€482,500.47) which is an astronomical debt in an impoverished town”
68. Thereafter the deponent sets out examples of the various types of regular meetings and courses provided as follows:
St. Vincent de Paul Society Community Information Centre.
FÁS Service.
Youghal Local Radio.
Youghal Literacy Group.
Alcoholics Anonymous.
Drugs Awareness Group.
G.A.A. Bingo.
Local Soccer Group.
Irish Country Women’s Association.
Unislim.
Aerobics.
Comhaltas.
Accord.
Youghal Heritage Centre.
Community Education for the Underprivileged, Lonely, Depressed and Marginalised.
Women’s Group Arts and Crafts.
Confidence Building.
Assertiveness and Self-esteem.
Home Management.
Lifewise – Health, Relaxation and Exercise.
Grooming and Deportment.
Women’s Health and Well-being.
Calligraphy.
Enjoy English.
Personal Development.
Reflexology.
Aromatherapy.
Scripture.
Parenting.
69. And he further states that the above courses have generated a healthier look and lifestyle and have given a much needed boost to Youghal.
70. Having regard to the foregoing I conclude, on the authority of Keane J. in Re Worth Library [1995] 2 I.R. 301 and Vaisey J. in Re Shaw’s Will Trusts [1952] Ch. 163, that the functions and activities set out above, in the light of modern conditions and the great upsurge in self help groups in this country, must, in my view, be deemed “educational”.
71. However that view of the activities and functions in the light of the aforesaid decisions does not solve the very complicated issues raised by this application. There is no evidence before me that the cy-près scheme of 1997 is sufficient to meet the needs of the schools as therein provided (namely all of the schools in the parish). I have no evidence that the plaintiffs have and are fulfilling their duties under the scheme of cy-près of 1997. I consider that there are various types of educational aids which the schools in Youghal might need. Aids such as computers, visual aids and facilities come to mind. In this regard I consider the Attorney General’s request of the plaintiffs, in this case, to be more than reasonable. There is no evidence as to any payments being made to any of the schools since 1997. Given the changing face of Irish education, can it ever be said that the sum provided under the 1997 scheme will be sufficient for the schools’ needs into the future? I think not.
72. For the purpose of completeness I consider the plaintiff’s argument on the State’s duty to provide for free primary education fails due to the plaintiff’s agreement to the cy-près scheme of the 18th November, 1997. Nor do I accept that the Attorney General is endeavouring to insist that the property of the church should be administered in a manner contrary to the said constitutional provisions for the same reason. I note that the property is an asset of the trust not of the church. Given my acceptance of the functions and activities carried on in the Community Centre as by and large educational in nature, it seems to me that the Court would be sympathetic to such an application. However it is with regret that I have come to the conclusion that the trust established in 1892 has been superseded by the cy-près scheme of 1997. I also conclude that such scheme could not be severed, or, to put it another way, this application to sever the proceeds of the sale of the Monastery, cannot be severed from the 1997 scheme. In the circumstances I am unable to grant the plaintiffs the relief they seek.
In re Lydia Prescott
Noel Purcell v Alexis Pobjoy (in religion known as Fr Alexis), Rudhri Mac Eoghan, Alexandra Moutet and the Attorney General
1988 No. 689 Sp
High Court
23 November 1989
[1990] I.L.R.M. 835
(MacKenzie J)
MacKENZIE J
delivered his judgment on 23 November 1989 saying: The plaintiff in this action is the executor of Mrs Lydia Prescott who died on 26 September 1987. He asks the court to determine questions arising out of the administration of the estate of the said deceased and questions arising on the construction of the said will. The said will was dated 15 August 1985. She resided in a house known as San Mario, Brookvale Road, Donnybrook, Dublin. The relevant part of the will is as follows:
I devise and bequeath my house San Mario aforesaid unto the Holy Protection Parish Dublin of the Russian Orthodox Church abroad under the jurisdiction of Metropolitan Vhilaret and the Synod of Bishops of 73 93rd Street New York 10028 USA.
I direct that my said house shall be used as a residence for clergy of the said Russian Orthodox Church abroad in Ireland excluding Constance Nicholas even if he become a priest and should only be sold if and when there are no parishioners or members of the said church living in Ireland. I also direct that in the event of any such sale the proceeds shall be applied for the general purpose of the said Russian Orthodox Church abroad in England.
The evidence disclosed that the Russian Orthodox Church in exile established a parish in Dublin to care pastorally for the Russian exiles settled in that city.
The resident priest died in 1977. The numbers of those faithful to the church dwindled and in 1983 the bishop of the diocese informed the community that they could no longer be regarded as a parish, rather they were to be a ‘obschima’, the Russian word for a community where services are available for the faithful without full parochial status.
The defendant Fr Alexis said that there were now three members of the community, two very elderly Russians and the defendant Mr Mac Eoghan. There would appear however to be a few others of which he was not cognizant but he said there was no other person in the community in Ireland. This information had been supplied by Fr Alexis in a letter to Mr George Crawford, solicitor for *837 the estate dated 22 February 1988. Fr Alexis however somewhat revised his opinion in giving evidence.
In his view a parish centred around the priest and church building but in Dublin there is no priest or church, dues are not paid, no decrees are made nor instructions given, nor do church records exist. Fr Alexis produced the synod year book for 1989 and referred to an entry which gave Mr Mac Eoghan’s name and address and ‘phone number. The word community was used there.
Fr Alexis said he came to Dublin four times a year. The members of the church would collect money together to pay his expenses when he was required. I am sure he is convinced of this but I find it hard to believe that his visits are so frequent.
The evidence has been noted and it is unnecessary to review it in great detail. On the facts however I must hold that at the time the testatrix made her will in 1985 and at the time of her death and at present the Holy Protection Parish in Dublin of the Russian Orthodox Church abroad had ceased to exist.
Obviously this presented a grave dilemma to the executor and most appropriately he applied to the court and with the consent of everyone concerned the house was sold and the proceeds retained. To answer the questions arising here one must assume that the house is still in existence.
The testatrix decided it was to be used as a residence for clergy of the church in Ireland and it should only be sold if and when there are no parishoners or members of the said church in Ireland. In other words had all parties not sensibly agreed to the sale, the house would now be standing empty without a priest and would still be there and, who can say how long, but until there were no members of the said church living in Ireland. The mind of God can only direct how long that would be. Counsel for the Attorney General informed me that there were present in court at least two other members of the church and they were identified; they were by no means elderly. I did not require their evidence, their presence confirms my opinion as to the uncertainty of the vesting of the gift (if it does vest) in the church. There is therefore no right in the executors to part with the proceeds of the sale. When they can do so is completely uncertain.
Mr Geoghegan appearing for the residuary legatee submitted that as the parish had ceased to exist the gift therefore lapses and falls into residue. The gift he argues is either one to an institution or a purpose gift. He concedes that it is the former and he is right. The testatrix gave her house for a particular purpose which failed, continued Mr Geoghegan. A new will therefore cannot be made for the testatrix: Knowing full well the situation she made a specific direction only permitting the proceeds to go to England if and when no members of the church were left. I think Mr Geoghegan was right in a suggestion that this was her way of bringing a clergyman or priest back to Ireland but in deciding the questions to be answered one should not be permitted to rely on this sort of speculation. The specified purpose however is not now practical. Mr Geoghegan *838 further submitted that no general charitable intent could be inferred from the will and he relied on the line of cases commencing with In re Harwood: Coleman v Innes [1936] Ch 285 which line culminated with In re Spence’s Will Trust: Ogden v Shackleton [1978] 3 All ER 93.
Mary Laffoy SC for Fr Alexis and the church said that the gift was for the parish for the particular purpose of providing a residence. If the parish had ceased to exist nevertheless it should be construed as synonymous with the community which was undoubtedly still their parish. She said it may have lost its status as a parish canonical, it was nevertheless a parish. She said the first gift if it has ceased to take effect thereafter then the second gift of the proceeds of sale must then take effect.
A misnomer, she says, does not affect the gift, citing King v Long (1919) 53 ILTR 60. The evidence to my mind does not support this contention because the testatrix refused to face the reality of the situation when she made her will. Miss Laffoy also cited Johnston v Langheld [1983] ILRM 359. That case does not seem to help the problem here. It dealt with the question of general charitable intention where a gift was to the Lutheran Church where the the question was whether a gift was to the Lutheran Church or the Protestant Church in general. The testatrix in that case was a member of the Lutheran Church, the court deciding that that was the institution she desired to benefit. It was argued therefore that the court should go at lengths to implement the wishes of the testatrix. She relied also on Duffy v Doyle, High Court (McWilliam J) 9 May 1979, where an uncertain gift to the parish of Bray that is uncertain as to the objects of the gift was held to be charitable and did not fail for uncertainty or pass on intestacy to the widow of the deceased.
In the present case there is uncertainty as to whether (a) there is a parish and (b) if the gift to the church abroad can take effect when and if ever.
Miss Laffoy submits that even if the testatrix’s directions cannot be carried out and even if the gift to the parish lapses it should not fall into residue and she refers to s. 91 of the Succession Act 1959.
It is my view that the parish certainly existed up to the death of Fr Currias in 1966. At the date of the will and at the date of the death it is against reason to hold that the Russian Orthodox Church abroad were anything other than a community, priestless without a church, without records, dues and very infrequent communications with clergy, no record of meetings, no meetings and most infrequent services. There was no parish if the house was not only for the benefit of the priest who would reside there but for the benefit of the congregation. The testatrix. I believe hoped the community would regain the status of a parish sometime. I see no practical way within law of carrying out the intentions of Mrs Prescott. In my opinion the gift lapses because it was a gift to a body which did not exist either at the date of the will or at the death of the testatrix.
The gift over being dependent on the validity of the bequest to the parish in my view also lapses and is also further void for uncertainty. Counsel for the Attorney General and Miss Laffoy urge that I should find a general charitable intent and apply the doctrine of cy-près. There may be cases of a single gift where the court can find such an intention in the mind of the testator a general charitable intention (Biscoe v Jackson (1887) 35 Ch D 460) where there was a general intention found in a bequest to the poor of a parish and as in Duffy v Doyle there was no indication that the testator had any other intention than to benefit the recipient but here however the recipient did not exist at the time of the will and death.
I answer the queries as follows as required in the summons:
(a) the proceeds vest in the residuary legatee
(b) the devise lapses
(c) the devise lapses
(d) void and of no effect
(e) see answers to (a), (b), (c), (d). The direction is void as uncertain and impossible and impracticable.
(f) the proceeds cannot be applied for the general purposes of the Russian Orthodox Church abroad in England
(g) does not arise.
Paragraph 2 need not therefore be uncertain.
Jane Moore Doherty, Deceased;
Cochrane v Cochrane
High Court.
15 January 1930
[1930] 64 I.L.T.R 50
Meredith J.
Meredith, J.,
The first question to be decided as to this bequest was whether it was a trust. It had been submitted that words merely expressing the purpose of a gift did not create a trust: Benson and Hemming v. Whittam, 5 Sim. 22. But here the legatee was allowed five years to carry out the object, which implied that thereafter she was bound to do so. From the context it was seen that the words “to enable her” were equivalent to “in trust to.” If the clause were merely explanatory of a gift to the daughter, there would not be much sense in going on to say that the balance was to be applied as she might direct. The fact that the daughter was personally interested in the balance made no difference; it was sufficient that the testator reposed confidence in her daughter to choose the altar, and accordingly left the sum directly to her. It was further contended that Mrs. Cochrane’s interest in the balance made the cost of the proposed altar too indefinite. If, however, cy près could be applied and the altar chosen by someone else the cost thereof would be only incidental.
It must be considered (1) if this were a charitable bequest, and (2) if there were enough paramount general charitable intention apparent so that cy près might be applied. Two alternative views of the testatrix’ intention had been stressed on this portion of the case (1) she wished an altar to be erected by her daughter, (2) she wished to benefit the Sisters of Mercy in whose church the altar was to be built. It seemed that her aim was the latter. Either way there was a clear, valid, charitable bequest. Referred to In re Greene, Fennelly v. Cheator, 49 Ir. L. T. R. 150; [1914] 1 I. R. 305.
There was nothing to prevent its taking effect as a charitable gift, for (1) the object was a female order, and (2) in any case penal laws which might have affected it were no longer regarded as being in force in this State. A bequest for Masses was charitable (O’Hanlon v. Logue, 40 Ir. L. T. R. 78; [1906] 1 I. R. 247), therefore so also was a bequest for an altar to celebrate Masses. It was not necessary to decide what should take place if the Sisters were to decline to accept the altar. Where there was a general, charitable intention which could not be actually carried out it should be asked if the directions of the testator in giving a bequest in a certain way were merely to express the mode by which this bequest was to be given. If the testator’s express directions were as to the method of carrying out the bequest, then cy près might be applied so as to cause a slight modification without affecting the paramount intention. There were, of course, limits to such deviation, as where there were no means of executing the testator’s intention—in such a case a complete departure would not be allowed: Attorney-General v. Boultbee, 2 Ves Jun. 380 at p. 387. A charitable intention might have certain definite limits, as in In re Avenon’s Charity, Attorney-General v. Pelly, [1913] 2 Ch. 261. On the other hand, a general intention might be followed as in Attorney-General v. Dixie, 2 My. & K. 342, where the Court widened the objects of the benefit. Applying these principles, the desire of the testatrix that the daughter should choose the altar was seen to affect only the mode of carrying the bequest into effect. There would not be too great a deviation from the wishes of the testatrix if the choice were to be made under direction of the Court. Tastes differed, but either Mrs. Cochrane or *51 the Court would be likely to hear the views of the Superioress on the matter. Cy près would be applied and the Examiner would consider a suitable scheme. Liberty given to apply again as to details. Costs of all parties allowed.
The Governors of the Schools Founded by Erasmus Smith, Esquire v The Attorney-General
for Saorstat Eireann
, And by Order:— Peter Corrigan, Thomas Edmonds, Nicholas Duff, Charles M. Markey, Hugh Hayes, David Dillon, James McKeogh, and James Slattery, And by further Order:— The Rev. James Moody, William Doran and Alexander S. Anderson
High Court.
17 November 1931
[1932] 66 I.L.T.R 57
Meredith J.
Meredith, J.,
The lands which constitute this endowment, or rather formerly constituted the endowment, for they have now all been sold under the Land Acts, formed a small portion of the vast territories confiscated from the native Irish about 1641. The tenants on the lands of Erasmus Smith, who in this action are represented by individuals who, for convemence of reference, have been called the “Special Defendants,” contend that this small portion of the confiscated lands was appropriated to a charitable endowment intended to benefit and presumably conciliate *57 the “poor tenants,” who were left on the lands and whose services were required for cultivating the soil; it being only the well-to-do Irish that were banished to Connaught. In a sense, therefore, this charitable endowment, as the Special Defendants contend, was originally designed as a partial restitution. But, as they contend, they have been robbed even of the benefit of this small, and almost contemptible, restitution by reason of the Governors insisting on a subsidiary provision in respect of religious instruction according to Protestant Doctrine, which makes the benefit impossible to accept. This absolute refusal to accept the benefit on the conditions imposed has resulted, according to the contentions of the Special Defendants, in a complete failure of the Trust, and they say that this failure, which depends on an issue, part of which has yet to be tried, entitled them to have a scheme settled by the Court so as to enable the benefit to be enjoyed by those for whom it was intended. The feelings of those who sympathise with the plaintiffs’ claim is also quite understandable. An educational endowment which provides for religious instruction in accordance with Protestant Doctrine is what would generally be called a Protestant Endowment. To divert a religious charity from the channel in which it has run for close on three centuries, and in which it was originally intended to run, would, the plaintiffs contend, do what the Courts have never yet done The plaintiffs strenuously contend that a provision making particular religious instruction obligatory goes to the root of an educational endowment. The endowment is one for the propagation of the Protestant religion Alternatively, it is not one for education in general, or in the abstract, but one for education of a specific character, and to alter that character would be to substitute for one definite charity another of a fundamentally different character. The plaintiffs contend that in this endowment education and religious instruction are inseparable. They are web and woof. There are many changes that might be made in an endowment that is both educational and religious without affecting the fundamental character of the thing itself. But there are things you cannot do. You may weave what pattern you will, but you cannot get rid of web and woof Perhaps, however, it is not quite fair to the plaintiffs’ argument to use this simile of the web and the woof. It was not used by Mr. Jellett, who kept rigorously to such abstract descriptions as “successory connection,”“inseparable combination,”“essential ingredients,” and so forth.
When this action first came before me on an interlocutory application, I could not understand how it came about that the Governors were plaintiffs. In response to my enquiries at the hearing plaintiffs’ counsel explained that the Tipperary Grammar School had been burned and that the Governors had received some £2,000 as compensation, and had sought to get a Bill introduced into the Dáil which would enable them to procure from the Commissioners of Charitable Donations and Bequests some modification of the Trusts of the Endowment so as to sanction what seemed the most beneficial application of the compensation money. This at once restarted the controversy, and the Governors found themselves obliged to institute an action, with the Attorney-General as defendant, to establish the essentially Protestant character of the endowment. That is what explains the unusual position of the Governors as Trustee plaintiffs. Proper parties to represent the conflicting interests have been added, and their defence and counterclaim constitute what under normal circumstances would have been the statement of claim. The counterclaim raises the whole question of the administration of the Trusts and alleges a complete failure. The trial of that issue would involve a lengthy hearing and enormous expense, and would complicate the trial of the issue as to the fundamental character of the charity, and, as neither side would have any interest in pursuing the investigation into the administration unless the contention of the Special Defendants as to the paramount intention of the endowment is correct, the several parties agreed to my suggestion that the question of paramount intention should be tried separately as a preliminary issue.—I shall begin by considering the case in its general bearings and referring to the general principles applicable to a case of this kind.
The question on this preliminary issue is entirely one that relates to a contingent application of the cy-près doctrine—contingent that is on a failure of the Trusts being subsequently established. Now that doctrine is an anomaly, in the sense that in applying it the Courts deal with gifts for charitable purposes with a partiality which they do not extend to non-charitable benefactions. In the Attorney-General v. Mayor of Bristol, 2 J. & W. 294, at p. 307, Lord Eldon said that: “In former times the Courts acted upon principles in the construction of deeds and wills, when charity was the object, which if they could be reconsidered, would not now be accepted. If the doctrine of resulting Trusts had then been understood, the right *58 of the heir-at-law would never, in all probability, have been got over.” Emment Judges, and in particular Lord Eldon, have expressed their strong dislike of the doctrine. In Mills v. Farmer, 19 Ves. 483, he referred to Moggridge v. Thackwell, 13 Ves. 416, as “a case that, bound by precedent, I decided as much against my inclination as any act of my judicial life.” Consequently, the layman who considers a judgment that applies that doctrine, in order to see if he himself finds it convincing, should not be surprised to find reasoning the soundness of which is not to be tested by its applicability to noncharitable cases. He must discount any criticism which is fundamentally only a criticism of the cy-près doctrine itself, which is a firmly established doctrine to which the Court must give effect whether it likes it or not. In saying this I desire to prepare the supposed critic for a somewhat greater shock than my observations might at first suggest. After all, the average layman is more likely to feel his sense of natural justice outraged by an absolutely strict, than by a very liberal construction of the actual words of a trust, and in general welcomes any effort to give effect to what must be presumed to be at the back of the donor’s mind, and, dislikes any decision which results in the failure of a gift which was intended to take effect somehow or other. So at first sight, the cry cy-près doctrine is a doctrine altogether after the layman’s own heart. Yet, where the supposed real intention is to be gathered from the implications of the language used, and in accordance with doctrines at the outset framed in the interests of charity, it must frequently be a somewhat artificial product of legal construction rather than an intention actually and explicitly present in the mind of the donor. The real sting in the cy-près doctrine, or rather in the authorities in accordance with which the doctrine is applied, lies quite as much in the circumstances under which Courts have held that a general charitable intention was implied, as in the fact that, having found such a general charitable intention, they gave effect to it, and far more in the mode of executing it cy-près. The supposed intention frequently savours of a fiction. In the words of Lord Eldon. “The question is not so much what was the intention, as what, in the contemplation of law, must be presumed to have been the intention.” Suppose for instance, that a provision, which is expressed as obligatory, is at the same time obviously introduced merely for the purpose of implementing a clearly expressed charitable intention, and suppose that the implementing provision has become unworkable owing to having been expressed with reference to the circumstances of the time, Courts of Law will then save the gift for charity by adopting an interpretation that moves with the times, and will strike out or adapt the implementing provision so as to effect the general charitable intention under altered times and circumstances. The Courts will recognise that the implementing provision as expressed by the donor was relative to the times and circumstances of the day, and will transform the provision by substituting a formula of general applicability. But the donor might in fact have been a man of the type that never moves with the times, and that is quite unable to conceive times and circumstances ever changing to any appreciable extent. That, however, does not prevent the Court effecting the necessary modification, though the “die-hard” founder may turn in his grave at the thought of what is being done with his money.
What seems to me to be the salient point in this case is that the Court is dealing with property which has been given absolutely and in perpetuity to charity, and which was vested in trustees, all of whom were public personages, for charitable purposes of a more or less national character, and for nothing else. The Special Defendants undertake, when the facts of administration come to be investigated, to show that insistence on the special provision as to religious instruction has led, and must lead, to a failure of the Trust so far as the persons expressly intended to be benefited are concerned. If these defendants succeed on that question of the failure of the Trust, then the question is:—What is to be done with the property? I do not yet know what is the plaintiffs’ answer to that simple question. They have never boldly stated that their contention is that, if the Trust has failed and if the paramount intention is to be effected, that is to be done by enlarging the provision as to religious instruction. But, in my view of the position, this is the only contention open to them on this preliminary issue. This is not a case of the class of In Re Wilson [1913], 1 Ch. 314. In that case, Parker, J., held that there was a Trust for a particular scheme and for that alone. The scheme proved impracticable and so there was an initial failure of the Trust. The learned judge held that no general charitable intention was indicated, and accordingly the whole gift failed. The present case is more on a line with In re Monk [1927], 2 Ch. 197, but is an even stronger case. But, besides, the *59 plaintiffs would gain nothing by a contention that this is simply a Trust for Protestant Secondary Schools for the tenants on the lands of Erasmus Smith, and that if that scheme has proved impracticable, the gift fails, there being no general charitable intention. For they could not want to cut themselves out and let in the heir-at-law, and they could not sustain a contention that on failure of the Trust for the Schools the fund is freed from the Trust for the Schools for the benefit of the Trusts of the surplus Consequently, the plaintiffs are in this issue restricted to the contention that the Trust is for Secondary Protestant Schools for the tenants on the lands of Erasmus Smith, and that if those tenants will not enter the Schools because they are Protestant, the paramount intention is the promotion of Protestant Schools, and that the Schools may be then maintained as Protestant Schools for those who will use them.
Continuing to deal with general introductory considerations, I think it will be of assistance at this stage to distinguish certain difficult conceptions and to indicate the distinctions by appropriate terms. Men may be actuated to give property to charity, that is to say, for charitable purposes, for a great variety of reasons, of a purely subjective or personal character. These actuating reasons may be, and are generally termed motives. Thus, in the present case, it has been suggested that the motive of Erasmus Smith in founding this charity was to strengthen his position in respect of the lands which he claimed for himself. But with the motive which actuated a donor to devote property to a charitable purpose the Court is not concerned, but only seeks to determine the charitable purpose intended to be furthered Then, in some cases, there may be something intervening between the charitable purpose, or the charitable intention as it was also called, and the motive. Behind the charitable intention there may be an ulterior object, end or policy, quite distinct from either the charitable object, intention or purpose, on the one hand, or the purely personal motive, on the other. The motive actuating the donor may only directly actuate him to promote this ulterior object, and the charitable object or intention may, therefore, only be promoted as a means towards realising this ulterior object. Now, here again, supposing the ulterior object is not in itself charitable, the Court must concern itself with the immediate charitable intention. This, as far as the Court is concerned, is the one end, and the fact that this end was only adopted as a means to the realisation of an ulterior object is immaterial, and the Court does not concern itself to see that such ulterior object is as far as possible, or at all, realised by the execution of the Trust. Thus, in the present case the ulterior object in setting up Grammar Schools in Ireland may have been a purely political object—the Anglicising of Ireland and the consolidation of the union of Ireland with England; and that, or the propagation of the Protestant religion, may have been the ulterior object of Erasmus Smith. But, since the establishing of Free Grammar Schools was a good charitable purpose, the Court concerns itself with the execution of that charitable purpose and that alone.
Mr. Jellett, not unnaturally, stressed certain observations of Lord Eldon in Attorney-General v. Earl of Mansfield, 2 Russ 501 at p. 521, on the policy pursued in the establishment of Grammar Schools, as if it were practically a conclusive authority on the charitable intention in the case of this endowment and amounts to a decision that it is an endowment for the propagation of the Protestant religion, whereas it is only necessary to quote the passage to see that it contains nothing more than a statement of the ulterior object sought to be promoted by the establishment of Grammar Schools in England. The passage is as follows. “… let it be observed, that it was a great part of the policy of the times in which this School was founded, that Grammar Schools should be instituted over almost the whole of the Kingdom. Whether those institutions were or were not useful in promoting the progress of the Reformation is a question which it would not be very difficult to solve; but that it was apprehended that they would be extremely useful to the progress of the Reformation no man can doubt; and when we look at the 1 Edw. VI, ch. 14, we see that one great object of the legislature in dissolving many of the Chapels, Charities, etc., which then existed, was for the very purpose of instituting these Grammar Schools.” I see nothing in this passage, dealing as it does with an historical fact as to policy, that absolves me from the duty of construing the instrument of foundation in the case of this charity, in order to see whether the paramount intention to be collected from the expressed object of the charity is to promote the Protestant religion or to confer an educational benefit on a specified class—the influence of the ulterior object to the latter case, at most, making itself felt in an engrafted direction as to instruction in the Protestant religion, which direction would in fact be quite efficacious *60 until it led to the unforeseen result of wrecking the whole charitable project and making it necessary to apply cy-près doctrine.
The “paramount intention,” the “primary object,” and the “underlying intention.” are also terms that should be explained at the outset. The paramount intention is what the Court, in applying the cy-près principle, regards as the fundamental charitable intention imphed in the expressed charitable intention as a whole. The primary object and the underlying intention indicate two conceptions which are used in determining the paramount intention.
The prnnary object is what is predommant in the charitable intention as a whole and is contrasted with what is subordinate—subordinate because it is a mere means to an end or simply because it is of minor importance, as not that upon which the donor would seem to have his heart most set. The expression “primary object” implies an evaluation of the various elements constituting a complex charitable intention, and it simply contemplates a division into what is of predominant and what is of subordinate importance.
The underlying intention is a refined or generalised conception to which the Court frequently resorts for the purpose of determining how it is to carry out the charitable intention in as close accord as possible with that intention as actually expressed. It is a conception which enables the Court to effect a modification in the definition of the charitable intention which obviates the difficulty that prevents the execution of the Trust according to its strict terms, and which enables the Court to do so by means of a peculiarly reasonable adaptation. Of course, in applying the cy-près doctrine, different methods have to be adopted according to the circumstances of the case. Sometimes, the Court executes a charitable intention cy-près by the simple expedient of cutting out some nocuous specification. But there is another special class of cases which are particularly amenable to a recognised method of treatment which anticipates modern scientific thought. This is the method which looks to the underlying intention of which the actual statement is only a particular expression. The donor naturally expresses his intentions in concrete terms directed to a given assemblage of facts, and contemplating existing circumstances and conditions, including the laws for the time being in force. The actual statement is thus relative to a particular given system. Hence it may be regarded as in part determined by the particular or specific character of the given system and in part by an underlying intention which applies generally and independently of the particular relation. Hence a generalised statement, based on the underlying intention, is what alone can be regarded as applicable generally, however conditions and facts may vary. To apply without modification a charitable intention that is only expressed in relation to assumed facts and under different conditions is obviously not to carry out the real intention at all. It is on this principle that Courts of Law adapt the statement of a charitable intention to suit altered circumstances and conditions with a view to giving effect to the real intention. Donors cannot be expected to provide expressly for more than the world and the times with which they are familiar. Accordingly, the perpetuity for which charities may endure throws upon the Court the burden of providing for that which the donor did not foresee, in accordance with what it finds to be the underlying intention of the charitable foundation. And so far as Courts of Law apply the cy-près doctrine merely for the purpose of such an effectuation of implied general intention their efforts to save charitable donations for charity are hardly open to criticism.
The first proposition of law that applies to the present case is that where a failure of the Trust results from insistence on a particular provision the Trust must be administered cy-près if a general charitable intention has been indicated. That certainly is a well-established principle. Attorney-General v. Whitely, 11 Ves. 241, was a case in which Lord Eldon found that the Free Grammar School in Leeds was “A Free Grammar School for teaching grammatically the learned languages” The Lord Chancellor then stated the position in the following words (at p. 251).—“I do not apprehend, it is competent to this Court, as long as it can find any means of applying the Charitable Fund to the Charity, as created by the Founder, upon any general notion, that any other application would be more beneficial to the inhabitants of the place, to change the nature of the charity. A case may arise in which the Will cannot be obeyed, but then the fund will not go to the heir; upon the principle that an application is to be made, as near as may be, growing out of another principle that you are to apply it to the object intended if you can. It must therefore appear by the Master’s report that the Court must despair of attaining that object, or the Court cannot enter into the question in what other way the fund is to be applied.” *61 The last sentence indicates precisely what, and what alone, the Special Defendants will have to show on the further hearing of this case to entitle them to have the property of the charity administered cy-près.
The second and only other proposition on which I find it necessary to insist is that there is no fixed rule or principle that wherever there is a provision for religious instruction, or in favour of religion, that provision must be regarded as of primary importance, or in other words, that the propagation of religion is the primary object Religion may be made a matter of primary importance or it may not, and the question of the position intended in each particular case is one to be decided, if possible, on the construction of the instrument of foundation, extrinsic evidence as to the intention only being advisable if the instrument of foundation is ambiguous or does not provide adequate inaterial for arriving at a decision.
If there were any fixed rule that religior cannot take a back seat, but that if the Bishop, so to speak, attends the meeting, he must take the chair—that he is ex-officio Chairman—that rule must either depend on a convention or else depend on the nature of the case. As to a rule depending on some convention, it was suggested that there is a fixed rule that if an educational endowment contains any provision for religious instruction, that at once stamps the endowment with an essential and indelible character which even the cy-près doctrine cannot efface, and that the Court may look no further and probe no deeper. This suggestion does at first sight seem to get some support from observations of Sir John Romilly, M.R., in Re Chelmsford Grammar School, 1 K. & J. 543 at p. 567, which was strongly relied upon in the argument of Counsel for the Plaintiffs. “It would be most dangerous; not merely with reference to the Church of England, but with reference to a large Body of Dissenters, to suppose that I am competent, sitting here as a Judge, to vary the Trusts which have been so imposed on property. For, if so, there is no reason why I should not alter the Trust of any Methodist establishment, or Independent establishment or of any other charity for the purpose of religious education. The Dissenters themselves would very soon have great reason to complain of an interference so improper and so ill-suited to the judicial function of the Court. The question itself is one, no doubt, of great difficulty and delicacy; one which the legislature itself has found quite sufficient difficulty in dealing with; but, happily, this Court is restrained (and it is a satisfaction to be so) by fixed rules, which render the Court itself inaccessible to all personal feeling on the subject, and which enable it to administer Trusts, whether they be of a Wesley an, Independent, Roman Catholic, or now, of a Jewish institution with the same strict regard to settled rules as must regulate it in the administration of the Trusts of any other species of property” Here there does seem to be some suggestion of a fixed rule of “Hands off Religion,” which brings happiness and satisfaction to the Judges, by enabling the Court to deal summarily with the main question, once it comes upon a provision in respect of religious instruction. What seems to be suggested at first sight is a rule depending simply on a useful convention—a purely Judge-made rule, having no justification in principle. But it is the duty of Judges to be impartial, to exclude personal feeling and adopt a detached standpoint: not to invent arbitrary rules to enable them to shirk that duty. No doubt it might seem that the suggested rule would be the same for all, and so must work out fairly, and that in laying down such a rule the Courts would give a striking example of their impartiality. But, in truth, such a rule would operate most prejudicially to the interests of Roman Catholics and Dissenters in the case of all educational endowments founded in the days of the Penal Laws. It would consolidate the position as at that time. It seems obvious to me that to reserve liberty to analyse and construe the instrument of foundation as a whole, and to do so in the light of the circumstances of the time and with reference to the laws then in force would not alone be more in accordance with the principles on which the cy-près doctrine is generally applied, but would also work out more fairly than the suggested fixed rule That it would impose a more exacting task on the Judges seems to me to be neither here nor there. However difficult the task of impartiality, the Courts of this country have never yet acknowledged defeat. But, on analysis, the observations of the great Judge whom I have cited do not affirm any fixed rule of the precise scope that at first sight seems to be suggested. For there was no question in that case of a failure of the Trust and, therefore, no suggestion of a limitation of the application of the cy-près doctrine. The last sentence makes that clear For the rule referred to was one that enabled the Court to deal with these cases involving religion “with the same strict regard to settled rules as must regulate it in the administration of any other species of *62 property.” That shows that the rule was only one applicable to cases where it is possible to execute the Trust according to the donor’s directions, for it was settled law that where such observance is not possible, dispositions in favour of charity are not administered according to the same strict rules as regulate the administration of the Trusts of other species of property (Mills v. Farmer, 1 Mer. 55) I, therefore, dismiss the suggestion that where there is occasion for applying the cy-près doctrine there is any conventional rule making a difference between a case where there is a specific direction as to religious instruction and one where there is a direction, let us say, for instruction in the classics, or for technical education, or for the teaching, suppose, of the Irish language.
Is there, then, any such fixed rule grounded on the nature of the case? There cannot be. For it is obvious that a distinetion exists between an endowment which is primarily an educational endowment for the benefit of a specified class with a subsidiary or engrafted provision for particular religious instruction and an endowment for the advancement of a particular religion. This distinction is in no way effaced by reason of the fact that the inclusion of the provision for particular religious instruction may have the result of advancing that particular religion and may be intended to have that result. This distinction is one between making the object of conferring an educational benefit on a special class predominant and making the advancement of religion predominant. The distinction lies in the nature of the case, and nothing can prevent a donor having one or the other intention as he pleases, and it must be possible to indicate by appropriate language what in fact was intended Hence, the question is one to be answered on the construction of the instrument of foundation. Mr. Jellett asked what would be thought if it were proposed to divert, say, the funds of Maynooth College? But when he instituted that comparison he can hardly have taken the precaution of looking at the Act to establish and endow Maynooth College It is entitled—“An Act for the better education of persons professing the Popish of Roman Catholic religion” The words of the Act leave no doubt as to the position of religion.
Another way of putting the contention that in the case of an endowment for education with a special provision for particular religious instruction, the matter of religion must be regarded as predominant, is to say that in such case a scheme which does not provide for particular religious instruction cannot be cy-près The dissenting judgment of Buckley, L.J., in Attorney-General v. Price [1912], 1 Ch. 667, was pressed upon me as supporting the contention in that form and it was suggested that that dissenting judgment was virtually adopted by the Consent Order made on appeal. As I read the Judgment of the Lord Justice, and I have read it very carefully, it does not controvert any of the propositions of law enunciated by the other members of the Court. Buckley, L.J., maintams that as between two schemes that are feasible one that gives effect as far as possible to a provision for religious instruction contained in the instrument of foundation is, other things being equal, more cy-près than one which ignores the provision altogether. On that ground, and having regard to the proper construction of the instrument of foundation and on the facts of the case, he preferred the scheme approved by the trial Judge to that prepared by the Attorney-General. There was much to be said for that view on the facts, and that explains the Consent Order. I have therefore no hesitation in relying on the statement of legal principles by the majority of the Court. I may take this statement from the judgment of Fletcher Moulton, L.J., who first of all held that it was “abundantly clear that the intention of the donor of the site was that the school for which it was to be used should be one in which the education was to be under the control and direction of the National Society, and that therefore the education given thereat should be in accordance with the principles of the Established Church.” (p. 680) The learned Lord Justice then points out that “the dispute arises as to what is to be done in case it is impossible to carry out the trusts in entire conformity with the provisions of the deed, which is the case that has arisen” (p. 682) Finally, referring to the features prescribed by the deed, the learned Lord Justice says “If it is possible to preserve these features, unquestionably the Trust requires that it should be done. The application of the cy-près doctrine does not negative this. It admits it, and provides that where it is possible to carry out in its entirety the desire of the donor it shall be done, but it recognises that where that is impossible the true conclusion is not that the Trust should fail, but that the general underlying intention should be carried out as best it can, and this is the object and effect of the Attorney-General’s Scheme” (p. 684). It seems to me that the view of the law adopted in this statement has the clear support of authority *63 from the time of Lord Eldon to the present day, and it is the view which I shall unhesitatingly follow in this case.
There is a passage in one other judgment to which I should like to refer. It occurs in the judgment of Parker, J., In Re Wilson [1913]. 1 Ch. 314, at p. 320. It is to the last sentence of the following statement that I desire to call attention.—“First of all, we have a class of cases where, in form, the gift is given for a particular charitable purpose, but it is possible, taking the Will as a whole, to say that, notwithstanding the form of the gift, the paramount intention according to the true construction of the Will is to give the property in the first instance for a general charitable purpose rather than a particular charitable purpose, and to graft on to the general gift a direction as to the desires or intentions of the doner as to the manner in which the general gift is to be carried into effect. In that case, though it is impossible to carry out the precise directions, on ordinary principles the gift for the general charitable purpose will remain and be perfectly good, and the Court by virtue of its administrative jurisdiction can direct a scheme as to how it is to be carried out. In fact, the Will will be read as though the particular direction had not been in the Will at all, but there had been simply a general direction as to the application of the fund for the general charitable purpose in question.” I think the last sentence must only mean that the particular direction, so far as it is simply particular, will be eliminated, not that an underlying intention apparent in the particular direction will be wholly ignored. I do not think it means that if a particular door has to be opened it must thereupon be wrenched from the hinges, that the Scriptural injunction “If thine eye offend thee, pluck it out and cast it from thee” invariably applies, and that there can be no room for compromise. When an obligatory provision for particular religious instruction leads to a failure of the Trust it seems almost obvious that a scheme containing, as several schemes settled by the Courts have contained, a conscience clause, or a scheme providing for a division between different denominations, might, if the Court was satisfied that it would be workable, be more cy-près than a scheme which ignored the direction altogether and provided simply for undenominational ducation. Suppose that, in the present case, there were sufficient Protestants of the class specified to justify the continuance of the Drogheda School on somewhat modified lines as a Protestant School, the Galway School to be run as a Catholic School, under Catholic management, as a Preparatory School for University College, Galway, might that not be more cy-près than a scheme which pro vided for two wholly undenominational schools? I do not think that the sentence which I have cited can be intended to imply that if a particular direction cannot be strictly carried out, the spirit of the direction is to be wholly ignored if an underlying intention can be detected. The change of time and ideas referred to by Jessell, M.R., in In Re Campden Charities, 18 Ch. D 310, which may make a particular provision primû facie unworkable, calls for adaptation rather than total and immediate elimination. However, these are matters which do not come definitely before me now, and will not unless a Scheme has to be settled I merely refer to them to avoid all possibility of misunderstanding at any further hearing. Even if a failure of the Trust is proved there will still be a good deal of fight left in the case, particularly on this question, and on the question of the precise quantum of the funds that must be regarded as necessarily appropriated to the Trust for the Grammar Schools. This is simply the first round.
Coming now to the particular facts of this case, the first question on which I have to make up my mind is whether the Foundation Deed of 1st December, 1657, or the provisions of what has been called the Transmitted Bill, which provisions were set up by the Act of Explanation, or the Charter of 22, Charles 11, is to be regarded as the instrument of foundation.
At the hearing, Mr. Jellett, in opening the case for the plaintiffs, kept determinately to the position that he did not care which I took to be the instrument of foundation, as all roads lead to precisely the same result That was probably a correct attitude to adopt, but, of course, it is no help to me on the difficult question under consideration I agree that on the question of paramount intention there is not much difference in the language used in each case, but there is one material point of difference, and it consists in the reference to bringing up the children to be educated in the Schools “in the fear of God” The reason why these words are material is that they do not merely occur in a subsidiary provision for carrying out an object which is expressed without reference to these words, but occur in the express statement of the intention of the founder in establishing the Schools. The words occm in the following passage “and for the great and ardent desire which he *64 hath that the poor children inhabiting upon any part of the lands in Ireland, as hereafter in and by these presents is expressed, should be brought up in the fear of God and good literature and to speak the English tongue.” Inasmuch as this reference to bringing up in the fear of God is omitted in the statement of the general object contained in the Charter, I must make up my mind, where the precise question is one of construction, whether these words have to be taken into account or not. Here I may mention that in the argument before the Commission in 1894, the Governors based their case primarily on the Charter as the instrument of foundation. Mr. Carson, in opening the case for the Governors said.—“Our argument has, all through, been based upon the Charter, which is the real foundation of the charity, because I will show you that nothing was done under the Deed of 1657, and that there was practically a reversion of the property to Erasmus Smith, by reason of the Deed not having been acted on and a Charter obtained within the time mentioned in it. The Charter that was afterwards obtained gives the go-by to the Deed of 1657, and the Act of Parliament also gives the go-by to it. But, notwithstanding all that, and although all the cases do show that the way to arrive at the intention is not to pin yourself to any one single document, but that you are to look to all the documents in the case, the entire argument of the other side goes back to this Deed of 1657, they are continually harping back upon it, because it is undoubtedly the most ambiguous document in the case” (Rep. p. 628). It is upon that “most ambiguous document” that Mr. Overend, in replying on behalf of the plaintiffs, relied exclusively. Mr. Dickie in opening the case for the Presbyterians, for the first time I think in the history of this dispute, contended that the Deed of 1657, must be taken as the instrument of foundation. Mr. Dodd in 1894, when appearing for the same body, did not confine himself to the Deed of 1657. The Revd. D. Humphreys, who appeared for the tenants before the Commission, treated “the Deed of 1657, the Letters Patent of 1667 and the Charter of 1669” as supplying the legal evidence and data by means of which the true objects and intentions of Erasmus Smith were to be ascertained. (Rep. pp 647, 648) It would seem that the Special Defendants originally intended to adopt the same line, but at the hearing, probably as the result of the case made on the Deed—they took their stand definitely on the Charter. Mr. McCann, for the Attorney-General, supported the view put forward on behalf of the Special Defendants. Mr. Overend in replying, as I have stated, supported the view put forward by Mr. Dickie. In 1894 Lord Justice Fitzgibbon based his convictions on the construction of the Charter, relying also very strongly on Erasmus Smith’s letter, but was of opinion that the Charter did not indicate any change of intention of June 6, 1882. Mr. Justice O’Brien stressed the importance of the Deed of 1657, and said — “The earliest evidence of his intention is found in the Deed of 1657, a Deed so important that a great effort was made to get rid of it and throw it overboard altogether” It will thus be observed that the greatest difference of opinion has prevailed not merely as to which instrument is properly to be taken as the instrument of foundation, but as to which instrument best supports the case made for the different parties respectively.
I think that the fact that I am only concerned with the question of the proper declaration to be made as to the Trusts affecting the lands, and not with a question of incorporation of the Governors, disposes of the point made on behalf of the Special Defendants that the only Trusts which the Governors can know are those contained in the Charter, and also of the point that the Charter must be regarded as regulating the Trust until proceedings are brought by fieri facias to have the Charter repealed. Further, I entirely accede to the argument of Mr. Overend, elaborating the same argument of Mr. Dickie, that the Charter could not alter the Trusts on which the lands were previously held. The Charter purported to reserve a power to Erasmus Smith to appoint by Deed or Will trustees of a moiety of the residue of profits. I agree with the opinion of Sir John Temple, dated 28th March, 1681, that this reservation was of no effect. The same must apply to any other purported variation of the existing Trusts. But what the Charter could not effectively do, an Act of Parliament could do. Now the Act of 1723, is entitled “An Act for further application of the rents and profits of the lands and tenements formerly given by Erasmus Smith, Esquire, deceased, for charitable uses” It is not disputed that that Act effectively deals with what I may call the surplus funds. That surplus only exists after the application of whatever is recognised in the Act as the primary application. Now if the provisions of the Act as to the *65 surplus are considered, it becomes apparent that what is recognised as the primary application is either under the Deed of 1657 or under the Trusts of the Transmitted Bill, and that the provisions as to the surplus in the Act of 1723 will only work in with the provisions of the Charter as to the primary application, and it is in relation to this primary application that the Act provides for further application. So, in the 5th paragraph of the Act the words:—“after payment of the several yearly sums already appointed and set apart for charitable uses as aforesaid, and all other necessary charges in and about execution of the Trusts reposed in them,” clearly refer to the primary application of funds under the Charter and definitely confirm and establish the Trusts of the Charter as to the primary application of the funds. For this reason, I hold that the Trusts of the endowment are to be found in the Charter and the Act of 1723.
As the Act of 1723 only deals with the further application of the rents and profits of the lands the Trust in respect of the Schools is to be found in the Charter, and it is to the Charter that we must look to discover the paramount intention, and whether this paramount intention is discovered immediately by mere analysis of the terms of the Charter or by means of extrinsic evidence as to the intentions of the founder, what the Court has to carry into execution are the Trusts impressed upon the property in the hands of the trustees by virtue of the gift already made and the Trusts already declared, expressly or by implication. When the Court gives effect to the paramount intention, it is not creating a new Trust for the purpose of carrying out some purpose or design at the back of the mind of the founder additional and extraneous to the Trusts already impressed on the lands by virtue of the gift actually made. The Court is only concerned, first, last and all the time, with Trusts that have been impressed upon the property in the hands of the trustees, and even where it looks to extrinsic evidence of the parmount intention of the founder it is still only seeking to ascertain the proper interpretation of the impressed Trusts. The “paramount intention of the founder” is at the same time the paramount intention of the foundation, and the latent meaning of the Trusts already impressed. When Trusts are carried out cy-près, the cy-près application only affects the specific element in the Trust, subject to that variation in respect of what it specified, and it is the Trust already impressed that is being carried out. But the proper and necessary references that are commonly made to the intentions of the founder, to which much respect has to be paid, seem to me to be not infrequently understood in a wrong sense, as if, when the Court seeks to give effect to the paramount intention, it thereupon throws overboard the Trusts already impressed, and undertakes a new task of doing something which the founder did not do, but would have liked to have done if he could have foreseen the possible breakdown of his scheme. That is not what the Court is attempting to do. It is only attempting to arrive at the real meaning of what the founder has done, though the Trusts as actually expressed may leave that real meaning a merely latent meaning. Hence, the paramount intention is something which essentially ought to appear, though in fact it may not, on the face of the instrument of foundation, being part of the inherent or intrinsic meaning of the charitable foundation itself. Accordingly, if the paramount intention does appear clearly on the face of the instrument of foundation, the Court has nothing further to do than simply carry it out as a declared Trust which overrides specific directions which are impracticable.
So I have not to decide whether, if it had been pointed out to Erasmus Smith that the Scheme, of the practicability of which he had surely no doubt, might turn out not to be feasible, and if he had been asked whether, in that event, he would be willing that the provision for religious instruction should be relaxed, he would in point of fact have replied in the affirmative. If on the construction of the Charter it is clear that the provision for religious instruction is to be treated as a subsidiary or specific provision or direction for carrying out a general charitable purpose, I have only to apply the cy-près doctrine according to well established principles.
It is this objective sense in which I understand the expression “Paramount intention” —a sense that makes it equivalent to “paramount intention or underlying purpose of the foundation”—that more than anything else, I think, explains the plain and simple view that I take of this case, and which has made me so unsympathetic to many of the considerations and arguments that were pressed upon me. As I put it at the hearing, while I was being asked to scan the historical background with a telescope, I kept examining the foreground, that *66 is the provisions of the Charter, with a microscope, and only considered the historical background so far as it was necessary to recognise the situation of the foreground, and understand the circumstances of the times and the existing state of the Law, in order to appreciate the precise significance of the provisions of the Charter. It was only when Mr. Lavery stated that he did not ask me to travel outside the clear statement in the Charter as to the purpose for which the Schools were to be maintained, to find the paramount intention of the Trusts in respect of the Schools, that I felt quite ad idem with Counsel. If, however, the paramount intention is regarded as something detached from the Trusts of the Endowment, and to be discovered only by patient inquiry into the labyrinths of the donor’s mind, then it was natural that all available deeds and documents should be investigated so that the secrets of the donor’s heart might be probed and the sincerity of his convictions tested, in order that a correct estimate might be formed of his outlook and what was probably uppermost in his thoughts when he determined to relinquish portion of his land for the purpose of this charitable endowinent. I was asked to consider the gyrations of the mind of Erasmus Smith during the troubled period of the great Rebellion, the Protectorate and the Restoration, and to come to the conclusion that “the religious tendencies of Erasmus Smith were inconstant, varying from time to time with the political exigencies of the day” and, having come to that conclusion, I was to infer that, when founding the endowment, he could not have had any very ardent or genume desire to propagate the Protestant religion, and that that could not have been his paramount intention Biographical investigations are generally interesting, and any future biographer of Erasmus Smith would find invaluable material for his work in the documents brought before the Court as evidence in this case This material having been brought under the review of the Court I think it is only due to the memory of Erasmus Smith with whose bounty the Court is dealing to say that the picture of the man produced in my mind is not unfavourable, but rather such as would command respect from any who are willing to take a man as he is and view him with sympathetic understanding. That he was a man of considerable business capacity, that he was far-seeing, that he was philanthropic and had a genuine belief in the civilising influence of education, is not disputed. But it has been suggested that in religion and politics, he had no sincere convictions of his own, but simply swung this way and that with the times. But what are “the times” but events and movements of public opinion partly determining and partly determined by events? Erasmus Smith was a member of the Committee of the Grocer’s Company that sat at Grocer’s Hall, and Grocer’s Hall was a determining influence in the movement of the times. I have little doubt that as a member of the Grocer’s Hall Committee, Erasmus Smith was regarded as a man whose views counted. On the evidence I think it most probable that he was one of the springs that freed the springs of public opinion rather than something swept away by its onward course. As to his personal religious convictions, I have no doubt that he regarded Protestantism as nothing more or less than true religion according to the Scriptures and avoiding all superstitution. Such being his conviction he was naturally persuaded that if Irish children could be provided with Schools where they would get a good education, which would raise their standard of intelligence and where the Holy Scriptures would be expounded to them, nothing more would be required to make them see that Popery was simply a perversion of true religion and full of ignorant superstition. The children educated in the Schools would become enlightened, contented and probably prosperous citizens, who would recognise that the powers that be are ordained of God, and there would be no more horrid rebellions, which were a disgrace to civilization. As to the inclusion of religion in the teaching of the Schools, he must have regarded that as a matter of course. If the Schools were to provide good education, that would not be complete without religious instruction, which was a necessary ingredient of all general education as the State very properly recognised. As for the differences that existed between Protestants themselves, he probably regarded them as very regrettable and very unnecessary, and if he never appeared as a very zealous or consistent partisan in these matters, it was because he did not believe that they touched anything of really vital importance. Education in religion should as far as possible be kept clear of these differences. In respect of these matters he would always be in favour of compromise, but not between Protestantism and Popery, for there could be no compromise between truth and error. To anyone who would regard such views as deplorably bigoted, not because he himself holds *67 the exact opposite view, but because his views are those of a modern enlightenment determined by an infusion of rationalism, I would suggest that it is no thanks to him and implies no special merit or distinction, to adopt with ease a tolerant, broad-minded and detached attitude. There have been many estimable men whose views have been as borné as those of Erasmus Smith, if, indeed, the attitude of Erasmus Smith on differences between Protestants and on political questions does not rather entitle him to be regarded as a man of comparatively liberal views. As this endowment was for the benefit of Irish tenants, I should add that I could detect no scintilla of evidence that Erasmus Smith had any interest whatever in Ireland as Ireland, or in the Irish as Irish. He came into touch with Ireland because he had acquired lands there and he saw in Ireland a field for the extension of English civilization and culture, in which he was much interested, and the spread of which in Ireland would do much to consolidate and unite the two countries. Such is my estimate of the character and outlook of Erasmus Smith, but I refuse to draw upon it for the purpose of discovering what were the Trusts which the Charter has imposed on the property in the hands of the Governors and, which constitute the charitable foundation of Erasmus Smith. I may say at the same time, that the precise language and terms of the Charter do not constitute the source to which I would look with most confidence if I were to seek, as a biographer, to form an estimate of the real character and outlook of Erasmus Smith; for it is by no means clear how far the terms of the Charter are a simple and absolutely faithful reflection of his own mind, or how far a compromise of different interests and in-influences may not have played a part.
The first question that I have to consider on the question of the Charter is whether the provisions for religious instruction is obligatory at all. I must make up my mind how that provision is to be regarded before I can decide what is the paramount intention. A provision must, to begin with, be obligatory before there can be any need to resort to the cy-près doctrine in order to escape from its rigour. That the provision is obligatory I should have thought was almost too clear for argument; but Mr. Gavan Duffy strenuously contended that it is merely matter of curriculum—mere machinery. That argument however, to my mind only amounts to an argument that the provision does not make religious instruction the primary object, and is not an argument against the provision being obligatory. Mr. McCann for the Attorney-General, admitted what I expected would be admitted on behalf of the Attorney-General, that the provision was obligatory and confined himself to what seems to me the only reasonable contention, that, though the provision is obligatory, it is not of predominant importance However, Mr. McCann subsequently assured me that he had not abandoned any point, and that he did not admit that the provision for religious instruction was an obligatory provision. So I must deal with the point.
As a matter of fact, the references to religion in the Charter are very meagre. The statement of the purpose for which the Free Grammar Schools are to be maintained contains no reference to religious instruction, unless the reference to Grammar Schools as recognised institutions does so by implication Then the provision as the schoolmasters subscribing to the two first Canons of the Church of Ireland is not a provision for such instruction, though it does serve to emphasize any such provision as is actually made Such actual provision is alone to be found in the permanent rules, orders and constitutions embodied in the Charter “to the end” as is expressed, “the good and pious intentions of the founder, may in all things be preserved as much as possible”
Erasmus Smith, after the Charter was granted made further rules under a power conferred on him by the Charter and it was argued that these subsequent rules as well as those contained in the Charter were made of permanent validity by the penultiman clause of the Charter But the words in clause “which … are, and always shall remain and be in their full force and virtue,” show clearly that the clause only refers to the rules, etc., constituted and contained in the Charter So it is only necessary to consider the provision in the Charter. It is in the following terms:—“Also the said masters shall, duly, once every week in each Lord’s Day, catechise their scholars, and for that purpose shall make use of the Catechism set out by the late Most Revd. Father in God James Usher, Lord Archbishop of Armagh, Lord Primate of All Ireland, and shall spend some time in expounding some parts thereof unto them” This provision is one of the very few incorporated into the Charter, and incorporated expressly in order to preserve the intentions of the founder, and all the provisions are confined to matters *68 of vital importance. Further, the provision must be read in connection with the exemption of the schools and schoolmasters, ushers, etc., “from all visitations, punishment and correction, to be had, used or exercised in or upon them, or any of them, by the Ordinary of the Diocese.” Unless the provision for religious instruction were obligatory it is difficult to conceive that such exemption would have been granted. Against these considerations all that was urged was that the provision was mere matter of curricu lum. I see nothing in this contention as an argument on the point. In an educational endowment the character of the curriculum may be regarded by the founder as a matter of extreme importance, and there is nothing to prevent him determining its character by an obligatory provision. For these reasons I must decide that, at all events, the provision is obligatory—which means that it must be strictly obeyed so long as it is possible to carry out the Trusts in accordance with the direction.
Supposing, then, I find myself unable to hold that the provision is more than an obligatory direction grafted on to the paramount charitable intention of conferring the benefit of free secondary education on a specified class, it may be asked why I should not make a declaration in the form set out in the second paragraph of the Plaintiffs’ Claim, that is to say, a declaration “that on the true meaning and construction of the several instruments declaring and regulating the Trust upon which the Plaintiffs hold and administer the property vested in or transferred to the Plaintiffs or their predecessors as Governors of the Schools founded by Erasmus Smith, Esquire, the Plaintiffs are bound to ensure that the teaching of and instruction in Protestant doctrine is an essential element in the education provided in the schools maintained and assisted by the Plaintiffs with and out of the proceeds of such property”? Is that not simply a declaration that under the Charter the provision in respect of religious instruction is obligatory? The answer would be in the affirmative if after the words “Protestant doctrine” there were inserted the words “as declared in the Catechism of Archbishop Usher.” Such a declaration does not touch the question of paramount intention at all, and does not determine the situation that arises if the Trust is shown to have failed. But Mr. Dickie’s clients object to the insertion of the words in question, and, therefore, since the point of difference between them and the Plaintiffs has been postponed for argument pending a division on the question of paramount intention, I am unable at this preliminary hearing to make any declaration as to the obligatory provision. But, having regard to what I am about to decide on the present issue, it would seem to me that it would be advisable after this hearing to dispose of the Plaintiffs’ claim as soon as possible, and I think it could be done on a simple motion, so that the only outstanding questions would leave the Special Defendants in the position of plaintiffs to make out their affirmative case for a failure of the Trust.
Having held that the provision in favour of religious instruction is obligatory, it only remains to consider whether the endowment must be regarded as fundamentally a religious endowment or an endowment with the general charitable intention of conferring the benefit of free secondary education on a specified class, the provision in favour of religious instruction being an engrafted or sup plementary provision. Now, where it is suggested that something that is incorporated into the statement of the object of the Trust should only be regarded as an engrafted provision subordinate to a general charitable purpose, the question is frequently one of considerable difficulty. That naturally difficult case, where the statement is compley and presents a problem for legal analysis, is the common or ordinary case that turns up in wills or other documents not very carefully drafted. It is the difficult case contemplated by Parker J. in the passage which I have already cited from Re Wilson [1913], 1 Ch. 314, at p. 320, where “in form, the gift is given for a particular charitable purpose, but it is possible, taking the Will as a whole, to say that, notwithstanding the form of the gift, the paramount intention, according to the true construction of the Will, is to give the property in the first instance for a general charitable purpose rather than for a particular charitable purpose, and to graft on to the general gift a direction as to the desires or intention of the donor as to the manner in which the general gift is to be carried into effect” But where, in the instrument of foundation, the gift is already stated in a general form, without reference to or anticipation of the particular matter, and the particular matter is only subsequently introduced by way of a supplementary provision or direction, then there is no difficulty whatever, and no occasion for the exercise of legal acumen to arrive at the true construction, for the gift is already in form one for a general purpose with an engrafted par *69 ticular direction, and the authorities that such general charitable purpose is to be regarded as the paramount intention apply immediately and without possibility of argument. The only trouble is that the Judge cannot state elaborate reasons for what is a matter of immediate subscription. Now, that is the present case, unless the reference to Grammar Schools has the implications which Mr. Jellett sought to establish. For the particular matter of religious instruction is only dealt with by what is at once, in form, a mere supplementary provision or direction expressly stated to be for the purpose of carrying into effect the general intentions of the donor, the precise words being:—“To the end the good and pious intentions of the founder may in all things be preserved as much as is possible.” The statement of the general purpose of the schools is introduced in the following manner:—A licence is given to erect three “Free Grammar Schools” in Drogheda, Galway and Tipperary Provision is then made for the appointment of masters and ushers who shall “use their best and utmost endeavours to instruct all such children in their respective schools to write and cast accounts, and, as far as the children are capable, shall teach and instruct them in the Latin, Greek and Hebrew tongues, and fit them for the University (if the same is desired).” It is then constituted “that the said free schools shall from henceforth, for ever hereafter, be, remain, continue and be converted, employed and used for free schools for the teaching and instructing of twenty such poor children or scholars who shall dwell or inhabit within two English miles of the said respective schools, and also for the teaching and instructing of all and every of the children of the tenants of the said Erasmus Smith, his heirs, executors, or assigns, at what distance soever from the said schools, such tenants shall dwell or inhabit, according to the true intent and meaning of these presents” The significant dropping out of all reference here to what is particular ( e.g., the teaching of Latin and Greek) and the concentration on what is general and of paramount importance is in the strictest accordance with the character of the statement as a statement of the general purpose. A subsequent clause provides that “such constructions shall be made upon this foundation and incorporation as shall be most beneficial and available for the maintenance of the poor scholars.”
As can be seen, this general statement contains no express reference to religious instruction, but Mr. Jellett endeavoured to extract an implied reference. “Grammar Schools,” he said, “are spoken of as Schools of a definite and well recognised character.” What that character was we know from the Irish Statute of 12 Eliz C. 1, which was the Act under which Diocesan Schools were established in Ireland. They were essentially Protestant Schools. Accordingly, when the statement of the object of the endowment is that Free Grammar Schools are to be maintained, the reference to Grammar Schools incorporates their definite and recognised character, so that the statement of the object is precisely the same as if it had been one expressly for maintaining Free Secondary Protestant Schools for teaching and instructing the specified class.
If there were anything in this argument, the word “Grammar” should have been inserted where the actual words are “to be used for Free Schools.” This is the precise place where the insertion of the word “Grammar” would have been significant, and where, indeed, its insertion was necessary, if the religious character of the Schools is to be implied by the use of the word “Grammar” and if that character was to be on the same level as the character of the Schools being free. On Mr. Jellett’s argument there was as much reason for inserting the expression “Grammar” as there was for inserting the expression “Free,” while the actual expression is “to be used for Free Schools.” Assuming that the word “Grammar” would imply “Protestant,” the omission of the word “Grammar” in this place means the difference between a Trust that the Schools should be maintained as Free Schools, there being only a subsidiary Trust as regards religious instruction, and a Trust that the Schools should be maintained as Free Protestant Schools. As to the original passage where the word “Grammar” is used in describing the Schools, and as to the passage where it is contended that this description is incorporated by the use of the words “the said,” it is obvious that by reason of the insertion of the obligatory provision for religious instruction and the other provisions the description was, in any event, a proper description, and if can in no way expand what is stated to be the general object of the establishment of the Schools. Besides, the expression “the said Free Schools” does not in itself incorporate any further specification than “the Free Schools to be *70 erected at DrogHeda, Galway and Tipperary as aforesaid.” Accordingly, we have what is at once, in form, an endowment with a stated general charitable object that makes no mention of religious instruction, with a subsequent engrafted supplementary provision as to religious instruction, and, that being so, I consider it plain to demonstration that the paramount intention must be sought in the stated general object, and that, therefore, the endowment is, as regards the paramount intention, an educational and not a religious endowment.
For the sake of clearness, 1 should, however, point out that even if the general statement of the charitable object had incorporated a reference to religious instruction, if, for example, the words “to be used for Free Grammar Schools” had been used, and if I then found that the use of the word Grammar has the weight of implication with which Mr. Jellett sought to charge it, the precise result would only be to brmg the case up to the level of the ordinary case where, as Parker, J., put it, in the passage cited already, “in form, the gift is given for a particular charitable purpose.” There would then be a case for the exercise of legal acumen on the true construction of the gift The question of paramount intention would still be open and would arise in the way it usually arises In such a case, it seems to me that on the authorities, the last thing the Court would try to do would be to shape the definition of the class to suit the benefit, instead of modifying the benefit, in accordance with the general underlying charitable intention, to suit the beneficiaries. Prima facie the definition of the class of persons to enjoy the benefit, particularly when selected on an obvious principle, is of supreme importance. Of course, in a case where the description of the class and the description of the benefit seem to be put on a par, one might say that the Trust had failed, if it has failed, owing to the definition of the class of recipients being too narrow, instead of attributing the failure to the inclusion of the specific provision as to religious instruction. But it would not be natural It would be like speaking of a man’s head as being too large for a particular hat, instead of saying that the hat was too small for his head. Or it would be as if you went into a chemist’s shop, and the chemist, not having the right patent medicine for your complaint, replied—“The truth is that you have not the right disease for any of my numerous approved remedies.” In this case, it seems to me that the plaintiffs desire to extend the class of beneficiaries in order that distinctly Protestant Grammar Schools may be the very thing they need. However, on the view I have taken, such difficulties of true construction do not arise [His Lordship at this stage outlined his reasons for ignoring a letter written by Erasmus Smith to the Governors on the 6th June, 1682. He also indicated what would have been his attitude, had he taken the deed of foundation (instead of the Charter) as the instrument of foundation]
The declaration which the Special Defendants ask me to make is not confined to the endowment in respect of the three Grammar Schools. But it is obvious that it is only to this portion of the endowment that the declaration could apply, and it must be expressly limited accordingly.
On this particular issue, it is not necessary for me to decide whether the Court could settle a scheme in the case of this endowment which was established by Royal Charter. All the parties desire a declaration as to the administration of the charity and the Special Defendants desire a declaration as to administration of the charity and as to alleged breaches of trust, and it would be competent to the Court in any event to make such declaration as it thought proper.
In accordance with the conclusions at which I have arrived I shall, to begin with, declare that this is a charitable endowment, and, specifically, an educational endowment. So much applies generally and without restriction. Then so far as concerns the application of the endowment to the purposes of the three Grammar Schools, I must declare that the paramount intention of the endowment, so far as applicable to these three Schools, was to provide a free educational benefit for a limited number of poor children residing in close proximity to these Schools, and for the children of the tenants and inhabitants on the lands of Erasmus Smith, his heirs, executors or assigns, at whatsoever distance residing.
On the 13th day of November, 1931, His Lordship heard arguments on three motions.
(1) A motion by the plaintiffs that His Lordship’s Order should contain a declaration that the plaintiffs were bound to ensure that the teaching of Protestant doctrine was an essential element in the educations provided in their Grammar School; *71
(2) a motion on behalf of the Reverend James Moody, William Doran and Alexander S. Anderson that the Order should contain a declaration that the plaintiffs were bound to ensure that the teaching of Protestant doctrine as declared in Archbishop Usher’s Catechism was an essential element in the said education;
(3) a motion by Peter Corrigan and his co-defendants that the costs of the Special Defendants be paid by the plaintiffs when taxed and ascertained.
On the 17th November, 1931, His Lordship in the course of his judgment in these motions said:
The preliminary and main issue as to the paramount intention of the Trusts having been decided, the action came on for further hearing for the purpose of disposing of the secondary issue raised by the plaintiff’s Statement of Claim Having regard to the ground covered on the hearing of the preliminary issue counsel did not find it necessary to address the Court at any length on the further issues. Mr McCann, for the Attorney-General, made clear the position of the Attorney-General as to the mandatory provisions. His position was simply that these provisions formed no part of the paramount intention, not that they were not obligatory so long as the precise directions in the Charter could be carried out without leading to a failure of the Trusts. Mr. Lavery explained the meaning of the contention of the Special Defendants that the alleged mandatory provisions were not binding. I understood him to draw a distinction between mandatory provisions which cannot be disobeyed without a violation of the Trusts and directions which are given merely as advice for the guidance of the trustees. I agree with Mr. Lavery that there is such a distinction. But the test is whether the trustees are left with a discretion, and in the present case I have no hesitation in deciding that the Governors are left with no discretion, that they cannot disregard the provisions without a violation of the Trust, and that if the attempt to carry out the provisions defeats the object of the Trust they have no alternative but to apply for a scheme for the administration of the Trusts cy-prés, or obtain an Act of the Oireachtas It is to provide for the situation that will arise the moment it is proved that the result of the effort to observe the precise provisions made obligatory by the Trusts is to defeat the object of the Trusts that I have on the hearing of the preliminary issue, made a declaration as to what is the paramount intention. But before entering on the question as to the administration of the Trusts, and whether there has been any breach of Trust, and whether a failure has resulted or must result from a strict compliance with the mandatory provisions of the Trusts, the plaintiffs are entitled to a declaration as to how matters stand under the Trusts, and what are the provisions that under the existing Trusts should be strictly observed.
In respect, therefore, of the relief prayed by the plaintiffs in their claim, I must give the plaintiffs a declaration that under the Trusts upon which the plaintiffs hold and administer the property vested in or transferred to them or their predecessors as Governors of the Schools founded by Erasmus Smith they are bound to observe the several rules, orders and constitutions specifically set out in the Charter, 22 Charles II (March 26, 1669), and in particular the rule, order or constitution following: “Also the said Masters shall, duly, once in every week, on each Lord’s Day, catechise their Scholars, and for that purpose shall make use of the catechism set out by the late Most Reverend Father in God, James Usher Lord Primate of all Ireland, and shall spend some time in expounding some part thereof unto them” This specific obligation, of course, in no way prevents the plaintiffs making what they consider more adequate provision for religious instruction in accordance with the doctrines contained in the catechism specified in this rule. That is entirely a matter of discretion.
In the Matter of the Trust of the Worth Library
and
The Provost, Fellows and Scholars of the College of the Holy and Undivided Trinity near Dublin and Patricia Donlon v. Attorney General and the Eastern Health Board
1991 No. 616 Sp
High Court
18 June 1993
[1994] 1 I.L.R.M. 161
(Keane J)
(I) Introduction
Doctor Steevens’ Hospital, one of the oldest of the great voluntary hospitals of Dublin, closed its doors for the last time early in 1988. The body responsible for its administration, ‘the Governors and Guardians of the Hospital founded by Dr Richard Steevens’, (hereafter ‘the governors’) were incorporated by an Act of the Irish Parliament in 1729 (3 Geo. II, c.XXIII). (Although the name of the founder is spelt ‘Stephens’ in the relevant volume of the statutes, I shall use the more familiar spelling in this judgment).
When the hospital closed, the governors had to decide what was to become of an asset of inestimable value which was also in their care. This was the collection of some 4,500 books known as ‘The Worth Library’ which had been kept in glass fronted bookcases in a room in the hospital specially designed for their reception from the early part of the 18th century. Since the governors were proposing to sell the hospital building once the various services and equipment which it had housed were accommodated elsewhere, they had to come to a decision as to the future custody of the library. As one would expect, the governors were concerned to ensure that the library would be preserved as an integral collection in some Irish setting and that the body responsible for its future custody would have the necessary skills, including particularly expertise in the conservation of rare books.
Having consulted with experts in the field, the governors decided that the best course was to transfer the library to the first named plaintiffs (hereafter ‘Trinity College’). The governors, who were the trustees of the library, appointed Trinity College as trustees in their place and sought the advice of the Commissioners of Charitable Donations and Bequests for Ireland (hereafter ‘the commissioners’) in relation to the trust and in particular as to whether the commissioners would settle a cy-près scheme appointing Trinity College as trustees of the library and *165 making provision for the removal of the library to Trinity College and for the care and custody of the books and the management and control of the library. The commissioners advised the governors on 1 March 1988 that they should seek counsel’s opinion as to whether the commissioners had jurisdiction under the Charities Acts 1961 and 1973, to settle such a cy-près scheme. Counsel advised that such a scheme would have to be framed by the High Court, if the value of the library exceeded £25,000, which it clearly did. The library had, in the meantime, in the interests of security and with the approval of the commissioners, been transferred to Trinity College on a temporary basis.
The second named defendants (hereafter ‘the health board’) bought the hospital in 1988 for use as its headquarters. They were of the view that the Worth Library should be returned to its original home in the hospital. Trinity College in the meantime had applied to the commissioners to be appointed as trustees in place of the governors and on 26 July 1988, the commissioners ruled that they proposed to make that appointment but directed that notice of the proposed appointment should be given in the prescribed manner. The health board and Mr J.B. Prendiville, who had been a member of the medical staff of the hospital for many years, furnished objections in writing to the appointment of Trinity College as trustees. The solicitors for Trinity College informed the Attorney General, whose consent was necessary under s. 51(1) of the Charities Act 1961 to an application to the High Court for the framing of a cy-près scheme, of these developments. The Attorney General took the view that there should be a second trustee of the library who should be an appropriately qualified person with no connection with Trinity College and the second named plaintiff who is the Director of the National Library (hereafter ‘Dr Donlon’) agreed to act in that capacity. On 5 February 1991, the commissioners made an order appointing Trinity College and the director for the time being of the National Library to be trustees in place of the existing trustees of the Worth Library and vesting the property in the new trustees upon the applicable trusts. The health board applied to the High Court pursuant to s. 43 of the 1961 Act for an order annulling this order. This application was refused by Denham J in a reserved judgment delivered on 17 December 1991.
In the meantime, the Attorney General had given his consent on 31 May 1991 to the application by Trinity College to the High Court for an order framing a cy-près scheme. The special summons was issued on 19 July 1991, and on 20 January 1992, Costello J made an order joining Dr Donlon as plaintiff and the health board as defendants. When the special summons came on for hearing before me, a number of affidavits had been filed on behalf of Trinity College and the health board, exhibiting reports and other documents relating to the issues raised by the application and some of the deponents were cross-examined on their affidavits. In addition, I heard lengthy submissions from counsel and, during the Whit vacation, visited both Dr Steevens’ Hospital and the library of *166 Trinity College in the presence of the parties and their legal representatives in order to see for myself the contents of the library, the room in the hospital in which they had hitherto been kept and the area of the library in Trinity College in which it was proposed by the plaintiffs that they should be kept in future.
The draft cy-près scheme submitted by the plaintiffs is set out in Appendix I. The scheme proposed by the health board is set out in Appendix II.
It was now necessary to consider the factual background in considerably more detail.
(II) Dr Worth and Dr Steevens’ Hospital
Dr Edward Worth was born in Dublin in 1678 and was educated at Merton College, Oxford. After leaving Oxford without apparently taking a degree, he studied medicine abroad, entering the University of Leiden in the Low Countries in 1699 and graduating as a doctor in medicine at Utrecht. On his return to Dublin, he was admitted to the degree of MD by Trinity College and added a doctorate from Oxford to his Dublin degree. He seems to have been an acquaintance of Swift, to whom some lines lampooning him are attributed.
Edward Worth was one of the original governors of Doctor Steevens’ Hospital named in the Act of 3 Geo. II to which I have already referred. Doctor Richard Steevens, after whom the hospital is named, was born in England, but brought up in Athlone and educated at Trinity College where he obtained his medical degree. Under the terms of his will, his twin sister Grizel Steevens (usually known as Madam Steevens) became entitled on his death in 1710 to a life interest in his estate. The will provided that after the death of Madam Steevens the trustees of the will should provide:
a proper place or building within the City of Dublin for an hospital for maintaining and curing from time to time such sick and wounded persons whose distempers and wounds are curable ….
Madam Steevens was anxious that the project of building such a hospital which was close to her brother’s heart should not be postponed until after her own death. She decided to advance money out of her own resources for the beginning of the work and to appoint a number of prominent Dublin citizens as trustees in order to get the project underway.
Many years were to pass, however, before the hopes of Dr Steevens and his sister were realised. It was not until 23 July 1733 that the hospital opened in the building designed by Thomas Burgh, the chief engineer and surveyor general of Ireland who was also responsible for the design of the library of Trinity College. Another celebrated architect also had an association with the hospital: Sir Edward Lovett Pearce, who succeeded Burgh as surveyor general and designed the Irish Parliament House, now the Bank of Ireland, became a *167 governor of the hospital on 19 April 1732.
These details are taken from The History of Doctor Steevens’ Hospital, Dublin, 1720–1920 , by Dr T.P.C. Kirkpatrick, who was for many years on the staff of the hospital and did much research into its history, the fruit of which was this learned work published in 1924. The hospital, as it was prior to its acquisition by the health board, is thus described by Dr Maurice Craig in his well-known work Dublin 1660–1860 :
As a building, Steevens’ may be called the last kick of the seventeenth century. If Burgh’s authorship were not attested beyond any possible doubt, we should have no hesitation in calling it the work of a sensitive carpenter or mason inspired by the neighbouring Royal Hospital. It reproduces on a smaller scale (about 115 × 95 feet) the courtyard-and-piazza plan of Robinson’s building. All the detail is cruder and less sophisticated, making its effect more by ‘quaintness’ than by strictly architectural means. Though the general disposition of the east front is accomplished enough, the main doorway with its elliptical arch and segmented pediment cutting through a first floor window is saved only by the charm of a slight awkwardness and by the delightful wrought iron which abounds here and elsewhere in the hospital. The very agreeable little clock-tower with its conoidal hat was not added until 1735–6 and may not be Burgh’s work. He was certainly not responsible for the semi-mansard roofs of all but the east range, nor for the squinch arches which cross the angles of the internal court and add even more quaintness to the final effect.
It is a great pity that Steevens’ Lane is too narrow to show the hospital to advantage and a still greater pity that the ugly red brick nurses’ home was inserted in the late nineteenth century between it and Kingsbridge Station, entirely destroying the scale of the ensemble.
The original chapel placed by Burgh in the south east corner was not completed until 1761 and in 1909 was obliterated in favour of a modern chapel on a different site. The chief treasure of the hospital is the library, bequeathed by Edward Worth, a trustee and governor who died in 1733 leaving some four thousand odd volumes, twenty one of which are incunabula [books printed before 1500]. These remain in the original board room with contemporary fittings. This interior was probably carried out by Pearce.
Dr Craig’s somewhat qualified enthusiasm for the purely architectural merits of the hospital should be seen in perspective: he is comparing it, inevitably not to its advantage, with its great neighbour in Kilmainham. He considers it sufficiently important, however, to be included in what he calls the ‘six minor elevations of Dublin’ which include, among other buildings, the King’s Inns and the Law Society building in Blackhall Place.
When the hospital was acquired by the health board in 1988, it was elaborately restored and refurbished under the supervision of Arthur Gibney & Associates with Dr Craig acting as historical architectural consultant. It was *168 acknowledged by those who gave evidence that the work of restoration has been carried out with great skill and sensitivity. The red brick nurses’ home was demolished and a landscaped esplanade provided which links the hospital to the quays. As a result, a magnificent view is afforded both from the immediate area of Heuston Station and from the other side of the river of the beautiful facade of the hospital.
The hospital is included in list 1 in the development plan for the County Borough of Dublin, a list of buildings the preservation of which it is an objective of the planning authority to secure because of their artistic, architectural or historical interest. In addition, under the heading ‘Interior fixtures and fittings to be preserved’, the following entry appears in respect of the hospital:
First floor/front room (Worth Library)
Timber panelling, doors, door-cases, windows, window-cases, cornice, marble chimney piece, original bookcases.
In a letter to the health board dated 13 July 1988, the planning officer, Mr E.G. McCarron, said:
It is understood that the books from this library have been transferred to Trinity College for safe keeping. The relationship of the books to the book shelves and to the setting itself are all of importance and I will be obliged if you would clarify if it is the intention of the Eastern Health Board to return the books to their long established location in the building when occupation is resumed. It would be regrettable if the relationship between the books, their shelving, their cabinets and setting were to be ‘broken up’ as it were rather than being retained as one integral collection.
Edward Worth did not live to see the hospital, of which he was one of the first governors, begin its long history of service to the people of Dublin. He died shortly before it received its first patients and was buried in St Patrick’s Cathedral. He had made his will dated 11 November 1723, to which he executed a codicil on 5 November 1729. It is one of the trusts created by that will which this Court is now called on to examine.
There was exhibited with the affidavit of Dr William Watts, the former Provost of Trinity College, which grounded the special summons, a typewritten copy of an extract from the will which contained the provision relating to the Worth Library. I was told at the outset of the case that this was the only documentary evidence of Dr Worth’s testamentary dispositions which was available. Mrs Muriel McCarthy, the curator of Marsh’s Library, who also acted in a voluntary capacity as librarian of the Worth Library for a number of years and was intimately acquainted with its contents and history, confirmed that this was the only copy of the will or any extract from it of which she was aware. It *169 seemed desirable that some further inquiries should be made, since manifestly if the entire will were available it might cast further light on the testator’s intentions and I suggested that enquiries might be made of the bursar of Merton College, as it appeared from Dr Kirkpatrick’s history that Dr Worth had also remembered his Oxford alma mater on a princely scale in his will. That college, unfortunately, had only copies of the provisions relating to their own benefactions, but a further investigation of the papers of Dr Kirkpatrick, which he had given to Trinity College, brought to light a full handwritten copy of the will. Further research by Mrs McCarthy (to whom the court is indebted) in the national archive in Bishop Street in the abstracts of wills proved in the Prerogative Court prepared by Sir William Betham brought to light the following entry:
306: Worth Edward of the City of Dub. Dr of Physick — dated 11 Nov. 1723 — d 21 March 1732 — cousin Mrs Anne Cross — kinswoman Mrs Dorothea Worth sister to Mr Tynte, James Tynte — kinsman Edward Worth Esq.
The portions of the will dealing with Dr Steevens’ Hospital should, I think, be set out in full. They are as follows:
In the name of God Amen. I Edward Worth of the City of Dublin Doctor of Physick being of sound mind and considering the uncertainty of human life am desirous to settle my worldly affairs, and doe therefore make this my last will and testament and in the first place, and above all I most humbly recommend my soul to Almighty God trusting, and firmly believing that thro the merits and mediation of our blessed saviour the Lord Jesus Christ it will receive a blessed immortality, and be reunited at the last day to my body, which I will shall be decently buried in such manner as my executor hereafter named shall think fitting, I give and bequeath unto His Grace William, Archbishop of Dublin, and the other trustees for the time being, appointed for the ordering, settling or disposeing of the money given by Mrs Grisell Steevens and Doctor Richard Steevens the sum of one thousand pounds ster to be by them laid out and disposed of towards the promoting the charitable work and design of the said Doctor Richard Steevens, and Mrs Grisell Steevens, of erecting and endowing an hospitall for the reception and cure of poor sick people in such manner as the said trustees for the time being shall judge will best contribute to ye end and design of the said intended charity, which said sum of one thousand pounds I will shall be paid within six months after my decease.
I further give and bequeath unto the said trustees all my books (except the English books in the glass case of my present study hereafter otherwise to be devised and likewise those which did belong to my late father, and are now at Rathfarnham) the same to be carefully preserved and kept in some convenient room of the said hospitall when it shall be built, for the use, benefit and behoof of the physican, chaplain and surgeon for the time being of the said hospitall. *170 who I will shall have each of them a key to the said room to resort thither when and as often as they please.
But I will, direct and desire that none of the said books may be at any time be removed from, or taken out of the room appointed for the custody of them, and to the end that they may be better preserved I will and direct that three catalogues may be made of them, written fair in three large well bound books, one whereof I will shall be kept chained in the said library of the said hospitall, another of them shall be kept in the library belonging the the colledge of Dublin, and the other shall be kept in the publick library at St Sepulchres, and it is my request and earnest desire that the governours, or trustees for the care of the said intended hospitall will be pleased once in every year on the Monday after Christmas Day or on such other day as they shall think more proper to visit the said library and cause the physician, chaplain and surgeon of the said hospitall then to attend them, and to examine the said books by the said catalogue, and if any of the said books shall be wanting or defaced to enquire how it came to pass, and to redress any miscarriage or abuse which may have happened relateing to the said books in the best manner they can.
And because I would not have the said gift of the books to be a charge on the said hospitall, and thereby deprive the poor of anything which will otherwise goe to their relief I will that part of the books hereinbefore excepted (viz those belonging to my late father, and now at Rathfarnham) shall be sold, and the money arising thereby shall be paid to the said trustees or governours of the said hospitall to defray the charge and expence why [sic] they may be at in makeing the said room fit and convenient for the receiving the said books and in causeing the said books to be digested and put in order, and makeing the three catalogues aforesaid, and in provideing chains for the said books, or for so many of them as it shall be found convenient to chain.
Provided nevertheless, and my will is, that if my executor do and shall within six months after my decease pay unto the said governours or trustees of the said hospitall the sum of one hundred pounds ster to be by them laid out in the manner following, that is to say, to some deserveing learned person of the Colledge of Dublin to be named by my executor who shall digest, and place the said books in order in the said room appointed for them, and shall make a correct and compleat catalogue of them, the sum of thirty pounds, to some able clerk, who shall transcribe the said catalogue into three large books fairly written and ingrosed, and who shall provide the said three books the sume of twenty pounds, and all the rest, and residue of the said one hundred pounds I will shall and may be laid out by the said trustees or governours in fitting and prepareing the room with shelves and other conveniencys for the reception of the said books and the chains as aforesaid (then the said books now at Rathfarnham shall be and remain to the sole use and behoof of my said executor) ….
I give unto Clotilda Lady Eustace all my English books in the glass case in my present study together with the case and scrutavi on which they stand ….
I give unto each of my dearest kinsmen James Tynte, and Sylvester Crosse Esqrs the sume of one hundred pounds ster for mourning and unto Mr Tynte I give *171 likewise my three marble bustos or heads (together with the oak cases in which they stand) hoping nevertheless that he will think them (after his death) a proper ornament for the room in which my books shall be placed in the hospitall intended by Doctor Richard and Mrs Grisell Steevens.
All my lands, tenements and hereditaments, and all the rest of my goods, chattles, and all my estate real and personal whatsoever which I have, or am rightfully entitled unto, charged nevertheless with my debts, legacys, and funerall expences, I give, devise and bequeath unto my best beloved kinsman and namesake Edward Worth Esq his heirs, executors, administrators and assigns, and I do appoint the said Edward Worth Esq executor of this my will, which I hereby declare to be my last will and testament and doe revoke and annull all wills at any time heretofore made by me.
In witness whereof I have hereunto set my hand and seal and published the same as my last will and testament this 11 November 1723.
E. Worth (loco vigilli)
Signed sealed and published by the above named Edward Worth in the presence of us who have subscribed our names hereunto in the presence of the said testator — Geo Rochfort — Matt Fforde Junr
The codicil dated 5 November 1729 contains the following provision:
And whereas I have by my will given to Clotilda Lady Eustace the English books which were in my glass case and said glass case and scriptore whereon the said glass case stands, least any doubt should arise whether anything but the said English books, glass case, and scriptore shall pass to the said Clotilda Lady Eustace by the said bequest, and particularly by reason of an + c [sic] in the said will, I will and declare that the said Clotilda Lady Eustace shall have by the said bequest only the said English books, glass case and scriptore, and that all other things which are, or shall be in them, or either of them doe and shall belong to my executors to the uses and purposes of my will, and of this codicil and lest it should be a doubt or question whether any books which I have given a commission or commissions to buy for me abroad shall go to ye trustees for the hospitall intended by the late Doctor Steevens to whom I have by my will devised all my books not therein excepted, I doe will and declare that all such books as are or shall be bought for me by virtue of any order or commission from me tho not in my custody at my death shall be, and be deemed and taken as part of my books devised by my said will to the said trustees.
And I do order and direct my executors to pay for the same, and all the contingent charges and expenses consequent to, and attending thereon untill the time they shall be delivered to my executor in Dublin.
It appears from Dr Kirkpatrick’s history that the sum of one hundred pounds was paid to the governors and that the books referred to were not sold and *172 became the property of the executor, Edward Worth. They were subsequently in 1742 bequeathed to the library of Trinity College. However, Mr Tynte did not justify the confidence which Dr Worth had reposed in him: the three marble busts were never placed in the library in the hospital.
A statement of the bequest to the hospital was made to the governors on 12 March 1733 and on 22 July the treasurer reported that he had received from Edward Worth the money left to the hospital by the doctor. In an account book preserved at one time in the hospital, there is a reference to the payment of the sum of £4:16s to George Stewart, carpenter, for twelve whole deal boxes for Dr Worth’s books and £2:8s for two large doors ‘to secure ye room where Dr Worth’s books are to lie.’ The following items also appear:
3 May 1733:
Paid carriage in full for Dr Worth’s books;
£2:5s:6d
2 July 1733:
Contingencies in Warbourgh’s Street about Dr Worth’s books 17/8.
The Dublin Weekly Journal for 12 May 1733 recorded that:
Last week several carr loads of books in boxes, being the library of Dr Worth lately deceased, were sent to Doctor Steevens’ Hospital, for the use of the physicians that attend there.
It seems that there was considerable delay in fitting up the library: on 14 January 1733/4 a minute of the board recorded that the books ‘do greatly suffer by their not been taken out of the boxes and aired.’
The members of the committee reported that they did not consider it prudent to meddle with them ‘before a catalogue be made’. The registrar was then ordered to wait on Mr Worth: ‘to know whom he will name to take a catalogue of them’.
However, according to Dr Kirkpatrick, from whose history again these details are taken, the name is not recorded of ‘the learned deserving person’ who was charged with the task of digesting and placing the books in order, although in 1736 one Crowe was paid for transcribing one catalogue £10:10s. The following receipt was also preserved:
Reed from the Rt Honourable the Governors of Dr. Steevens’ Hospital by the hands of Mr George Challoner the sum of £24:12s:3d, being so much money to me paid for two transcripts of Dr Worth’s catalogue, May ye 10 1735. James King.
There is also a record of 13s paid to Mr Lambe for binding the catalogue.
*173
On 5 March 1734, Edward Worth was elected a governor of the hospital and appears to have taken immediate steps to put the library in order. On 22 August 1735, the governors decided to hold their meetings in the committee room while the books were being put in their places in the library, and the steward was given the care of the library during that time.
In the months of September, October and December 1736, the hospital accounts record the following items of expenditure on the library:
26 September
Alderman Humphrey French, ironmonger
£5:2:10
9 October
John Seymor, painter.
Library 171 yds twice painted at 5d
£3:11:3
61 once painted at 2½
0:12:8½
1 October
Hugh Wilson, carpenter
4:3:11½
Work in library …
81:0:11½
1 December
Francis Godfrey, glazer, Work in library …
6:7:10½
Edward Worth himself paid £35:18s toward the work of finishing the library and presented to the hospital a portrait of Dr Worth which was valued at £23. Among the payments made were:
£7:1s:6d for ‘glazing eight doors for the book presses in the library’.
For the columns and entablature in the library where Dr Worth’s picture hangs £8.
For four hinges and three pair of ‘hinges with double joints and smooth fild’, £2:5s:6d.
One pair of ‘double jointed hinges smooth fild: 6s:6d.
The brass bosses for the doors cost two pence halfpenny each and the ‘scutcheons for ye locks’ 2d each. Dr Kirkpatrick recorded that some of these ‘scutcheons’ and ‘bosses’ still remained in 1924, though disguised by paint.
On 24 July 1742, a committee of the governors was appointed: ‘For putting the books in order, and to consider how to make the same more useful’.
On 17 September an order was made that: ‘The panelling of the west side of *174 the library be taken down and converted into presses for the classing of the books’.
Dr Kirkpatrick suggests that this order can refer only to the panelling above the glazed presses. He adds:
It is probable that the small presses that are now there were made at that time. Since 1742 the library has remained practically without change and much of the old curved glass is to be seen in the press doors.
The room as it was in 1924 is described by Dr Kirkpatrick as follows:
The room in which the library is housed measures 28 by 22 feet, and is lighted by three windows, which face towards the east. The fireplace over which hangs the portrait of Dr Worth, is on the north side, and there are two doors, one on the west side in the southwest corner, and the other on the north side in the north-east corner. Round this room are arranged presses with glass doors. The six presses on the west and south sides respectively measure eight by four feet. On the east side, between the windows, there are two presses of similar size, and, in addition, one two-thirds and four one-third of this size. On the north side there is one press of the full size, one two-thirds, and one one-third of this size. In the panelling above each of the larger presses are small presses with wooden doors measuring two feet by two feet seven inches, thus making in all fifty one presses for the books. The glazed presses are lettered from A to X, and the shelves of each are numbered from below upwards by brass-headed nails in the front edge of each shelf. The smaller presses above take their lettering from those on which they rest, and with them their shelf numbering is continuous. Thus we have ‘A’, ‘A first part above’, ‘A second part above’, and so on. The books on each shelf are numbered from the opening of the door towards the hinge. On the fly-leaf of each book is written the press letter, the shelf number, and the number of the book on the shelf, and in the catalogue there is a similar entry opposite each book. It is thus quite simple to find any book in the library once its place in the catalogue has been found. If for example one wants the De Consolatione Philosophiae, 1487 , one finds in the catalogue under the author’s name, Boethius, the book with the place G4, 21. The book will be found in press G on the fourth shelf from the bottom, and is the twenty first book on that shelf counting from the opening of the press. The arrangement of the books in the upper presses has had to be changed, as the hanging of the pictures has prevented ready access to them.
The books are grouped roughly according to subjects. Thus on the west side we have medicine, surgery, chemistry, botany and pure and applied mathematics. On the south side are collected history, topography, antiquities and books of reference. On the east side we have the ancient classics, and on the north theology and some modern literature. It must be understood that this grouping is very general, but, on the whole it is excellent.
*175
Having gone on to discuss the books themselves in some detail, Dr Kirkpatrick concludes his description of the room as follows:
Above the door in the south-west corner is the following legend, probably the composition of Richard Helsham, Swift’s physician:
Aegris sauciisque sanandis,
Ricdus Steevens MD reditus,
Grisda soror superstes aedes hasce,
Dono dedere.
Edvardus Worth archiater
Bibliothecam quam vides
Eruditam, nitidam, perpolitam.
A modern translation is as follows:
To cure the ill and enfeebled, Richard Steevens, MD made a gift of this building to his surviving sister Grizel.
Edward Worth, head physician, gave the library that you see, erudite, neat, polished.
The library to-day is much as Dr Kirkpatrick described it, save that all the books and paintings have been removed.
Dr Kirkpatrick gives the following description of the catalogue:
The library catalogue consists of two folio volumes measuring eighteen and three quarters by thirteen inches, and bound in rough calf. The entries, made under the head of authors, in alphabetical order, are written in a clear, large hand on the recto of each leaf, with three columns at the fore-edge for the ‘Clas. Tab. Num.’, or the press, shelf and number on the shelf. The copies of the catalogue preserved in Trinity College and in Marsh’s Library [as St Sepulchre’s Library is now called] are each in one volume and do not contain the shelf numbers of the books.
During the hearing, the original catalogue and the copy in Trinity College were produced in court by Dr Bernard Meenan, the keeper of rare books in Trinity College.
I shall consider the contents of the library in more detail at a later stage: it is now time to resume the history of the library. It was nearly lost forever on the eve of the Act of Union when the Lord Chancellor, the Earl of Clare, presented a petition to the House of Lords on behalf of the governors of the hospital:
praying leave to dispose of, by public sale, a valuable library bequeathed to the *176 charity by Dr Worth. [His Lordship added that] the testator had provided in his will, that the library should neither be removed nor disposed of; but if left as it is, from the ruinous state of the hospital’s roof, and of the room where the books are deposited, [that] they must be destroyed in the falling of the roof, should a thorough repairing of the house not soon take place.
The Bishop of Cashel was far from happy with the proposal to sell the books:
[He] expressed himself decidedly adverse to a violation of the testator’s bequest, which he conceived to particularly provide for the preservation of the books in the hospital, and therefore he should not hesitate as the library room was in a falling state to remove them to a safer place, although the testator literally desired that they should not be disturbed from one and the same room. The governor stated that the funds could not be spared for the purposes of the charity, as there was no specific provision for appropriating any part to repairing the house; but surely if the house was about, agreeably to that statement, to tumble in ruins, he should think that in such case the repairs in question were necessary to the permanency of the charity itself, and therefore His Grace saw a necessity of an immediate application of a portion of the funds to repair the hospital, which portion might afterwards, very properly, revert to the original purpose of its appropriation.
The Earl of Altamont is recorded as agreeing:
with his Grace of Cashel, in the impropriety of infringing the testator’s bequest respecting the books and [he] suggested the expediency of addressing His Excellency the Lord Lieutenant to supply the expenses of the hospital’s repairs at the public charge.
The report in the Freeman’s Journal for 29 May 1801, which was furnished to me by counsel for Trinity College during the course of the hearing, concludes:
This suggestion seemed to meet the wishes of their Lordships, and the motion for compliance with the prayer of the governors of the hospital, about leave to dispose of the library, was accordingly withdrawn — adjourned.
For the sake of completeness, I should add that, while there is a full account of the circumstances in which the petition was presented in Dr Kirkpatrick’s history, he was unaware of its ultimate fate. It appears by his history (at p. 176) that the financial problems of the governors were eased when in 1803 the commissioners of the Royal Infirmary asked for the empty wards in Steevens’ Hospital to be made available to the troops of the Dublin garrison, who were urgently in need of additional accommodation, and made some financial contribution to the hospital in return. Further petitions were also presented to *177 parliament, and ultimately a petition, and a grant as a result of it, became an annual feature of its history.
The library remained undisturbed until the books were removed to Trinity College following the closure of the hospital in 1988. The room was regularly used for meetings of the board of the hospital. As I have already mentioned, Mrs McCarthy was appointed the honorary librarian by the board in 1973 and continued to work as the librarian in a voluntary capacity until the closure of the hospital. Mr Prendiville, whose association with the hospital goes back 50 years, first as a student, then as a trainee, and ultimately as a surgeon, became interested in the library in the early 1940s when he helped Dr Kirkpatrick with work he was doing on the books. He, Dr F.S. Burke and Professor Widdes all took part in the supervision of the library. During the summer of 1973, some members of the board suggested that the library might be sold to provide finances for the hospital. The board, however, rejected that proposal and it was at that stage agreed that Dr Victor Griffin, the Dean of St Patrick’s Cathedral, and Mr Prendiville should act as keepers of the library with the assistance of Mrs McCarthy as honorary librarian.
I have already summarised the events which took place after the hospital was closed in 1988. At the stage when the health board became interested in acquiring the hospital building as a headquarters, there were lengthy discussions and correspondence between the chief executive of the health board, Mr Kieran Hickey, the then Provost of Trinity College, Dr Watts, and his successor Dr Thomas Mitchell, as to the future of the Worth Library. Discussions were also in progress between these parties as to other matters in which Trinity College and the health board were jointly interested, principally relating to St James’s Hospital. It is not necessary for me to recount the history of those negotiations, which proved abortive, in any detail: it is sufficient to note that among the proposals discussed was the return of the Worth Library to the hospital and the establishment of a joint trusteeship of the library, the trustees to be Trinity College, the National Library and the health board.
The health board intend to dedicate a small room beside the Worth Library as a study room for scholars. They intend to have in another room nearby a small museum devoted to the history of the hospital and Irish medical history generally, including a display of early surgical and medical instruments preserved by the hospital and a reconstruction of a six bed surgical ward as it would have appeared in the hospital in the eighteenth century, utilising some original hospital artefacts from that date. Some of these items have been provided in the room already.
The contents of the library must next be considered. There have been very few additions to the 4,500 volumes originally bequeathed by Dr Worth. The only important accession was some 80 volumes of the public record series, published in pursuance of a resolution of the House of Commons dated 22 July *178 1800. These were presented to the hospital by the government and bear the following imprint on the verso of the title page.
This book is to be perpetually preserved in and for the use of Steevens’ Hospital, Dublin.
According to Mrs McCarthy, the number of books devoted to medicine in the library amount to not more than about 200. In two articles, ‘An Eighteenth Century Dublin Bibliophile’ ( Irish Arts Review , Volume 3, Number 4, Winter 1986) and ‘Doctor Edward Worth’s Library in Doctor Steevens’ Hospital’ ( Journal of the Irish Colleges of Physicians and Surgeons , Volume 6, Number 4, April 1977), Mrs McCarthy refers in some detail to the medical books. The library, as Mrs McCarthy and the other scholars who have given evidence in this case made clear, was assembled by a person of cultivation and learning whose interests extended far beyond his own profession and who was, in particular, an enthusiastic bibliophile. The medical books are, however, of importance, since Dr Worth collected works relating to his profession which were both ancient and modern. They included the first important medical periodical, Claude Brunet’s Le Progres de la Medecine , printed in Paris in 1695. There are also medical books by English and continental doctors, including a treatise by William Harvey, who discovered the circulation of the blood. The great bulk of the library, however, consists of works on other subjects, particularly English antiquities, astronomy, botany, history, the ancient classics, mathematics, poetry, philosophy, natural history, science and travel.
One feature of the medical books which is of some relevance in the context of the present case is their relatively immaculate condition. Mrs McCarthy, in the article in the Irish Arts Review , to which I have already referred, contrasts their condition in this respect with the books in another doctor’s library with which she is familiar, i.e., that of Dr Elias Bouhereau which is preserved in Marsh’s Library. Those books are extensively annotated: in contrast, she comments that Dr Worth’s medical books do not seem to have been used extensively at any time.
The intrinsic interest of the books is considerable: they include, as already noted, some incunabula, i.e., books printed before 1500. But the most remarkable feature of the library is the state in which the books have been preserved since they were first placed in the room in Steevens’ Hospital more than 250 years ago. In an article on the library by Dr Catherine Swift, the keeper of early printed books in Trinity College, she compares the excitement of entering the Worth Library for the first time in 1988 to that which must have been experienced by the English archaeologists when they made their way into the tomb of Tutankhamen in 1922. Her description is worth quoting: *179
We stood amazed at the jumble of bills and sale catalogues stuffed into the pigeon-holes of the desk as if the owner might at any moment return; the looming portraits of Grizel Steevens and her brother, founders of the hospital, and of Edward Worth, himself one of the first trustees, leaning out into the room on gilt chains, below the elaborate cornice: the magnificent oval board room table around which the trustees had held their deliberations; and, surrounding all, 24 exquisite ‘scumbled’ glass-fronted book cases with their panes of eighteenth century crown glass, holding rank upon rank of early printed books in the finest condition any of us had ever seen.
We had been told in advance that the books were very well preserved, but this was something quite out of the ordinary. The books seemed not to be ‘preserved’ at all, but as if newly bound — just as they might have appeared to the eyes of Dr Worth himself. The leather had the plumpness and gleam and the depth of colouring of the living skin. To those of us used to handling the dessicated leather bindings of the Long Room [in the Library of Trinity College] (in which the books were placed in 1733, the same year in which Dr Worth’s books were bequeathed to Dr Steevens’ Hospital) this was a revelation.
How had this happened that this collection of books had been so perfectly preserved over the centuries? Many of Dr Worth’s books had belonged to the great French book collectors — Jean Grolier, Jacques Auguste de Thou, Louis Henri Lomenie de Brienne, Jean Baptiste Colbert, the Baron de Longpierre, the Duc d’Orleans (brother of Louis XIII), to name but a few. They had used only the finest materials in binding their books: Turkey leather and later Morocco leather for example, which are much more durable than the calf in which most of the Long Room books are bound, and also the beautiful pale vellum used by many continental book collectors and tremendously hard wearing, as we can see from the Fagel Collection here at Trinity. Dr Worth was in the tradition of collectors who appreciated books for their beauty as well as for their texts. He not only bought books already distinguished by beautiful bindings but apparently commissioned fine bindings of his own from the Dublin binders of his day.
However, a major factor in the remarkable state of preservation of the books was undoubtedly the conditions prevailing in the room allocated to the collection in 1733 at Doctor Steevens’ Hospital. Whereas the south facing Long Room is flooded with sunlight which for some 250 years (until ultra violet filters and holland blinds were installed in the 1970s) had been steadily dessicating the backs of the books and converting the chemicals present in the vegetable tanned leather into destructive sulphuric acid, Dr Worth’s library was housed in a room which faced east, and where the fenestration was only a tiny fraction of that seen in every bay in the Long Room. The cool dim light was further enhanced by the shutters, closed when the room was not in use. (The shutters in the Long Room have long since ceased to function.) The books were also enclosed in glass-fronted book cases which kept them free from the dust and grime which we see everywhere on the Long Room books, and as the city became industrialised also protected them from the air borne pollutants which, *180 joined with the action of sunlight, have been gradually reducing the calf of the Long Room books to the unhappy condition known as ‘red rot’. The glass-fronted bookcases in Dr Worth’s library also created a stable micro-climate where damaging fluctuations in temperature and humidity were minimised. How damaging such fluctuations can be is seen in the condition of some of Trinity College Library’s Fagel books, where the otherwise hardwearing vellum has, in alternating conditions of low and high relative humidity, contracted and split down joints or spine.
(III) The library of Trinity College
The library of Trinity College, in which the books are now housed awaiting the decision of this Court as to their final destination, is, of course, one of the oldest and most famous in the western world, having been originally established in 1590. The college buildings, including the Burgh Library and its modern addition, designed by Koralek in the 1960s, are also among the architectural glories of Dublin and receive thousands of visitors from all over the world every year. The priceless treasures forming part of our cultural heritage in the Old Library include the Book of Kells.
Trinity College intends that the physical condition of the books in the Worth Library collection will be the responsibility of the staff in the library’s conservation laboratory. In his affidavit of 14 August 1991, Mr Peter Fox, the librarian, said:
The laboratory will carry out a continuous monitoring programme on the books and effect such conservation work as is required. The laboratory has a staff of five under its director and is the only unit in Ireland with the technique, experience and resources requisite to evaluate and carry out conservation operations on the type of materials, namely paper and vellum, which comprise the collection.
He added that the laboratory enjoys an international reputation for its expertise and attracts a constant flow of conservators for training. It has provided an internship programme with students from Colombia University, New York, for the past ten years. The director of the laboratory has also been invited to present papers at a number of international venues such as the John Paul Getty Museum in California, the National Gallery of Art in Sydney, the Library of Congress in Washington, the Instituto de Patalogio del Libro in Rome and a UNESCO meeting in Rome. He is also consulted for advice on conservation techniques for libraries both in this country and abroad.
It was originally intended by Trinity College that the main part of the collection would be housed in the book stacks area of ‘the Colonnades’ a part of the old library, below the Long Room, which was being redeveloped as part of the celebrations marking the four hundredth anniversary of the university in *181 1992. It was intended that the main part of the library should be accommodated in the book stacks area while a representative selection from the library would be on permanent display to the public in the exhibition area. These plans were, however, reviewed when the Colonnades development was completed and it was decided to retain that area as a relatively open area of display and exhibition. In an affidavit of 23 February 1993, Mr Fox said that the books would now be housed in an area at the top of the stairs leading up from the area where the Book of Kells is on display and would occupy one entire side of an area at present devoted to the Fagel Library, while the books of that library would be housed on the opposite side. The bookcases in question were described by him as late eighteenth or early nineteenth century and would be enclosed with floor to ceiling glazed doors to ensure that the proper environmental control could be achieved. Mr Fox considered the area particularly suitable because it provided a space for background explanatory material about the collection and the library would be housed in context with the ‘greatest collection of early printed books in Ireland’.
(IV) The evidence of experts
It is now necessary to consider the contents of the affidavits filed and the reports or other documents exhibited therewith which I have not so far summarised. It will be obvious that scholarly opinion is deeply and passionately divided as to whether the books should be permanently housed in the library at Trinity College or whether they should be returned to Doctor Steevens’ Hospital. The various materials put before the court can, I think, be most conveniently dealt with if one segregates the areas of dispute between the experts into the following categories:
(1) Security
There are two questions involved here: the possibility of accidental damage to the books, whether by careless handling or otherwise, and theft.
(2) Fire
This heading is self explanatory.
(3) Conservation
This raises the questions already touched on of temperature and humidity control, freedom from dust and other pollutants and similar environmental considerations. In addition, it raises the question of the monitoring of the contents on a regular basis by persons skilled in the preservation of rare books and manuscripts.
*182
(4) Accessibility, cataloguing and availability of reference books
This raises the question as to how accessible the library will be to scholars and other interested persons in either venue and the degree to which adequate cataloguing facilities and reference materials necessary for the proper study of the books will be available in the two venues.
(5) Aesthetic considerations
The issue that divides the parties under this heading is as to whether a unique relationship exists between the books and their original resting place in Dr Steevens’ Hospital which will be needlessly destroyed by their being permanently housed in Trinity College or whether Trinity College, as a great centre of learning, is a more appropriate repository for the books than the administrative headquarters of a health board.
(6) Funding
No question arose as to the capacity of Trinity College to provide any necessary funds. It was, however, suggested that the health board might have difficulties in this area.
Security
I shall consider first Trinity College. The evidence was that the old library building, which would house the Worth Library, has electronic, physical and staff security systems in place. Since the building contains, as already noted, among other unique exhibits the Book of Kells, the requirements of security are treated as paramount. The building has both internal and perimeter alarms, security staff are present in the building at all times when it is open and Trinity College has 24 hour security staff cover. A remote camera system would operate in the building.
Mr Kieran Hickey, chief executive of the health board, in his affidavit of 3 March 1993, said that a full intruder alarm system had been installed in the hospital building by Crowe Engineering Ltd, Champion Fire Defence Systems Ltd and AAA Security Ltd. He had also commissioned an additional security report from Chubb Ireland Ltd in relation to the Worth Library alone and said that the health board undertook to carry out all the additional work indicated by that firm before any of the books were returned. He also said that no member of the public was permitted beyond the reception area of the building unless accompanied by a member of staff. Between the hours of 9 a.m. and 5 p.m. when the building is open to the public, there is a uniformed security guard permanently on duty in the main entrance hall. He also said that there was a staff of five porters whose responsibilities also included general security duties. He said that at all other times the building and the grounds were protected by on site security guards, in addition to the electronic security systems already referred to.
*183
The qualifications as librarians of Dr Donlon and Mrs McCarthy are well-known, but should be recorded for the sake of completeness. Prior to her appointment as Director of the National Library in 1989, Dr Donlon was the curator of the Western Collection at the Chester Beatty Library and before that was a librarian in the Royal Irish Academy. She has been involved with rare books and rare book collections since the early 1970s when, as a post-graduate student, she studied early printings in the Biblioteca Nacional in Madrid and also at the British Library. Since 1991, she has been chairman of the Irish Museums Association, a professional body which seeks to maintain the highest standards of curatorship of all the collections in public care nationally. She is a founder member of the Rare Books Group of the Library Association of Ireland which is a professional body which meets regularly to discuss matters relating to the care of rare book collections within the State.
Mrs McCarthy has been associated with Marsh’s Library for more than 20 years, initially as acting librarian and now as keeper. She has written many articles on Marsh’s Library and the Worth Library, to some of which I have already referred, and has lectured extensively in the United States on both libraries. I have already referred to her association with the Worth Library since 1973 as honorary librarian. During her period as librarian, she supervised scholars who were doing research in relation to the library and dealt with enquiries from universities, scholars and students. She also regularly examined and cleaned the bindings of the books, which, as we have seen, are of particular importance.
Both Mrs McCarthy and Dr Donlon in their affidavits expressed concern as to the vulnerability of the books to theft in the event of their being returned to the hospital building, particularly having regard to the number of members of the public and staff who would be present in the building from time to time and what they said was the stated objective of the health board to use part of the building as a heritage centre and museum which would attract large numbers of tourists. Mr Hickey in reply said that the security arrangements now in existence in Steevens’ Hospital were significantly better than in the days when it was a public hospital and accommodated the Worth Library for so lengthy a period unharmed. He said that the only access which would be permitted to the library, if it was restored to Steevens’ Hospital would be as permitted by the court. In particular, the public would not have a general right of access.
There was also a difference of opinion between Mrs McCarthy and Dr Donlon on the one hand and Mr Breugelmans, a Dutch librarian, whose evidence will be referred to in more detail at a later stage, on the other as to the desirability in a library such as the Worth Library of permitting what was called ‘one to one’ supervision. Under the arrangements envisaged by the health board, the books in the library would be examined by experts in an adjoining room in the presence of the person acting as librarian. Dr Donlon, in particular, was unhappy about *184 this arrangement and said that it imposed considerable strains on the person responsible for the supervision. She said that the form of supervision which would be available in Trinity College and which would involve the studying of the books in the presence of a number of members of staff and other readers was a more secure method of giving access to the books. Mr Breugelmans disagreed and said that, in his experience, the form of ‘one to one’ supervision envisaged by the health board was preferable to what was envisaged in Trinity College.
Fire
Uncontradicted evidence was adduced that both the Old Library in Trinity College, and Steevens’ Hospital have been equipped with modern, sophisticated fire detection and extinguishment systems. In the case of Steevens’ Hospital, Delap and Waller, consulting engineers, furnished a report on the extent to which the building complied with, or could be adapted to comply with, the requirement of the British Standard Recommendations for the Storage and Exhibition of Archival Documents (BS 5454:1). That firm recommended that the library itself should be protected by an automatic fire detection and extinguishing system, which should be such that the contents and structure of the library would be protected from damage from the firefighting operation while capable of limiting the fire to its source and ensuring the safety of personnel. This could be achieved by the installation of a Halon 1301 or suitable alternative automatic extinguishing system. Arthur Gibney and Associates, in their commentary on the compliance of the Worth Library with BS 5454:1 pointed to two possible difficulties:
(1) The requirement that ceilings should be impervious to water was not met. However, they pointed out that there are no water services above and that the roof has been completely repaired. There might, they thought, be some hazard in a firefighting situation.
(2) The internal surfaces of the structure should conform to the specification of Class O of the building regulations. However, since this is a historic interior the fittings of which have been listed for preservation under the development plan, it would not be possible to comply with this requirement.
Conservation
Mr Fox said that, in the case of Trinity College, as part of the environmental controls already in place, some of the windows in the Fagel Library had already been blocked up and the remainder would be. They would also be fitted with heat insulation as the corresponding ones on the ground floor below it had been. All remaining windows in that part of the Old Library would be fitted with ultra violet screens. He said that the placing of the Worth Library behind floor to ceiling glass doors would also prevent air borne pollutants from affecting the *185 books. He said that the development of conservation knowledge is relatively recent and the poor condition of many of the books in the Long Room (and of some of the Fagel bindings) could be ascribed to this lack of conservation knowledge in the past.
In the case of the hospital, Arthur Gibney & Associates said that in many respects the room in the hospital provides ‘an ideal repository space’. They indicated, however, that the environmental requirements of BS 5454:1989 required to be addressed. Delap and Waller recommended maintenance of a constant controlled environment achieving internal space temperature of between 13°C — 18°C and internal humidity levels of 55%–65% combined with the necessary air changes and air distribution by the installation of a packaged air conditioning unit. This should incorporate humidification/dehumidification components combined with air filtration components to reduce sulphur dioxide and nitrogen oxides to the required concentration. They recommended that the environmental conditions should be monitored by recording thermo-hydrographs and that alarm facilities should be installed so as to alert maintenance personnel to break-downs in the air conditioning system. They also recommended a lighting system to reduce the effect of ultra violet light and the installation of emergency lighting.
As to conservation of the books themselves, Dr Donlon and Mrs McCarthy were in agreement that Trinity College was the only institution, apart from Marsh’s Library, in the Republic of Ireland capable of providing appropriate conservation techniques and expertise. Mrs McCarthy said that, while she would have liked Marsh’s Library to receive the Worth Library, the conservation facilities in Trinity College Library are of so uniquely high a quality that the books should properly be preserved there rather than in Marsh’s Library.
Evidence on behalf of the health board on this matter was given by Mr Ronald Breugelmans, the keeper of Western Printed Books at the University of Leiden. The collection for which Mr Breugelmans is responsible amounts to approximately 1.5 million volumes with extensive collections from the sixteenth, seventeenth and eighteenth centuries and approximately 800 incunabula. He has a master’s degree in humanities at Leiden University and has done post-graduate studies in librarianship at the University of Amsterdam. He has also published works on rare books and manuscripts and is a member of various committees and learned societies in the Netherlands devoted to rare books. At the request of the health board, he visited both the hospital and the library of Trinity College and examined the books comprising the Worth Library.
Mr Breugelmans did not agree with the view of Dr Donlon and Mrs McCarthy as to the importance of having immediately available the conservation facilities in Trinity College. He said that the excellent condition of the books indicated that they were not in need of any extensive restoration or major remedial works. Insofar as individual volumes might from time to time require conservation or *186 restoration work, this could be carried out by the librarian carefully transporting the relevant volume to where the work is to be carried out.
Accessibility, cataloguing and availability of reference books
Dr Donlon, with whom in general Mrs McCarthy agreed, said that the library under the umbrella of a larger library, such as Trinity College, would provide an opportunity hitherto lacking of studying each item and each binding in relation to similar printings and bindings or in contrast to other printings and bindings. It would also enable such scholars to make use of the extensive reference collection of the Trinity College Library. She said that during her period as curator of the Western Collection in the Chester Beatty Library, an international expert, Dr Anthony Hobson, was commissioned to produce a catalogue of the Western Bindings in the library. He eventually had to transfer by car from England his own collection of reference books because he found his task impossible without them.
Dr Donlon said that the library of Trinity College was the most advanced of academic libraries in terms of new technology and of putting on computer its files and records of its collections. It was also part of an important international network of research libraries and had access to information on comparable collections elsewhere. She said that the Worth collection should be catalogued in the most up-to-date detail and appropriate manner to ensure its proper place in international collections and that this task could only be successfully undertaken by Trinity College.
Mr Breugelmans said that there would be no problem in preparing a modern computerised catalogue of the Worth collection. He said that he had been shown the computerised catalogue system in the initial stages of being put in place in Trinity College Library, which he described as a very useful and practical system but by no means unique. He did not consider that the fact that facilities would be available to scholars to compare the books in the Worth Library with those in Trinity College Library was a sufficient reason for removing the entire collection to that library. If comparative studies were necessary, something which he said, in his experience, would not often occur, the individual books could safely be transported provided proper precautions were taken, but that such occasions should be rare. He said that it was better that the other book or books should be brought to the Worth Library rather than vice versa.
Mr Edward Giblin, the managing director of Technology Recruitment Ltd, who had worked in computers for a number of Irish and multinational firms, inspected the computerised library catalogue system in Trinity College on behalf of the health board. He disputed the statement of Mr Fox that this system was ‘up and running’, saying that the system was under final test and that the work of transferring the card index catalogue on to the computer system had not been started and would take ‘eight man years’ of effort. He also said that the hardware *187 and physical technology to support a catalogue data base for local and remote scholars exists within the health board already and that to achieve ‘software and presentation compatibility’ in the respective catalogues, it was only necessary that the Worth Library be catalogued using the Trinity College catalogue as a model.
So far as accessibility generally was concerned, Mr Breugelmans was of the view that the books in the collection should not be separated from the bookcases and the library room in the hospital because of the importance to a variety of scholars and others of examining the books in the library as a complete unit. He said that the books were far more important in this context than as individual volumes. He said that scholars interested in the history of libraries, art historians and sociologists would be deprived of what he described as the ‘invaluable possibility’ of studying the contents, arrangement and fittings in an original and undisturbed eighteenth century library of a wealthy and educated man who was also obviously a bibliophile. He said that it was of great importance for scholars to see how the books were arranged on the shelves and how the library cases and presses were constructed to accommodate the different format of the books. The method of marking the shelves within the bookcases he described as ‘most unusual’.
Aesthetic considerations
Dr Donlon said that she was most anxious that the Worth Library’s final location would be one which did not in any way compromise the character of the collection and would respect the dignity and integrity of the collection as a collection rather than as a ‘curiosity’. While she acknowledged that the hospital had been restored to a remarkably high standard, she considered that the effect of the library room there, in relation to its immediate environment, was one of ‘curious isolation, indeed almost alienation’. Remarking that the premises function as the modern office space of a busy and pressurised sector of the public service she said that, in her view, it was very far removed from the scholarly environment indicated by Dr Worth for the ‘physician, chaplain and surgeon’.
Mrs McCarthy agreed fully with this view: she said that it would be wrong to remove the library from an academic establishment of the standing of Trinity College to an office headquarters, isolating it from the use of scholars and the world of learning generally.
Dr Maurice Craig is a graduate of Cambridge University and a PhD of Trinity College. He is also an honorary fellow of Trinity College, an honorary fellow of the Royal Institute of the Architects of Ireland and a member of the Royal Irish Academy. He is also a member of the Council of Trustees of the National Library. In addition to being the author of Dublin 1660–1860 , he has also published The Architecture of Ireland and Irish Book Bindings .
Dr Craig said that he was unaware of any glass fronted bookcases installed *188 in a room in Ireland in the 1730s which have remained unmoved for more than 260 years. He said the glass in the bookcases was still the original early eighteenth century glass and that he would be happy to describe the room as ‘unique’.
Dr Craig said that the value of the collection as a discernible entity was much greater than the sum of its parts. He said that when collections such as this were absorbed into the holdings of large libraries, whether public or private, or even specialised holdings, their character was compromised and their unique identity obscured. The collection of books formed 270 or more years ago by a person such as Dr Worth threw light, not only on his tastes and interests, but also on aspects of the society and era to which he belonged. Dr Craig considered that, when such a collection was found in the architectural setting and original furniture expressly designed and made for it 260 years ago, as verifiable from the contemporary accounts and board minutes, the value of both the books and their setting was again enhanced. He said that, in his view, any separation of the amalgam of architecture and connoisseurship represented by the collection in its original setting was to be deplored. He said that, if separated, the value of the collection and of the original architectural setting and interior of the early eighteenth century were accordingly reduced.
Mr Breugelmans said that the Worth Library, by which he meant the collection of books on the shelves in the room and everything about the room, was ‘nearly unique’ in Europe since it represented the almost unchanged private library of a man of the eighteenth century who was not of the nobility. He said that it was not possible to make comparisons between libraries of institutions, religious or secular, or public libraries or libraries of the nobility and libraries of a private individual, such as Dr Worth. He said that the only comparably preserved library in its original setting of which he was aware in Europe was that of Joannes Thysius in Leiden. He said that, removed from the environment of the original room, bookcases and furnishings, the books were immensely reduced in their value to scholars and in all other respects other than just as books. He described the proposal to remove the books permanently from the library as ‘an act of cultural vandalism’.
Funding
It was suggested on behalf of the plaintiffs that the health board were not legally empowered to make any funds available for the necessary expenses involved under the various headings already discussed. I shall consider the legal issue that arises at a later stage. At this point, however, it is sufficient to refer to the evidence of Mr Hickey. He accepted that it would be necessary to have a professional librarian who would attend the library in the hospital building on a number of days each week. It would also be necessary to meet other expenses such as insurance, conservation of books and cataloguing and provision of *189 reference books. He said that it was proposed to establish a trust fund for this purpose and that a number of leading public and other companies and individuals had expressed their willingness to contribute to the trust fund if the court ruled that the books were to be returned to and housed in the hospital. An organisation known as ‘The Friends of Doctor Steevens’ Hospital Historical Centre’ had been established under the chairmanship of Mr Desmond Cashell, a former vice-chairman of the board of governors of the hospital, to assist in the funding of the Worth Library and the Doctor Steevens’ Hospital Historical Centre.
(V) Legal submissions of the parties
At the outset of the legal arguments in the case, I indicated to counsel that I would require submissions to be made on the following matters:
(a) Whether the bequest by Dr Worth of the Worth Library was in law a charitable bequest;
(b) If it was a charitable bequest, the nature of the charity intended to be benefited by Dr Worth;
(c) If is was a charitable bequest, whether conditions had arisen for the exercise by the court of the cy-près jurisdiction;
(d) If the answer to (c) was in the affirmative, whether the scheme proposed by the plaintiffs was one which should be ordered by the court to be carried into effect.
Counsel said they were in agreement that the bequest was a charitable bequest. However, I took the view that this was not a case in which the court was solely concerned with the resolution of issues between private parties, where the court might be unwilling to raise matters which the parties had agreed not to raise. This was a case in which the court was being invited to exercise its cy-près jurisdiction, a jurisdiction which can only be exercised in the case of charitable donations and bequests and no other bequests. Counsel for the plaintiffs and the health board were reluctant to advance any submissions to the effect that there was no charitable bequest, for obvious reasons: if the bequest was found to be non-charitable, it would clearly contravene the rule against perpetuities and there would be a resulting trust in favour of the descendants of Dr Worth. If those descendants were not ascertainable, the library would presumably escheat to the State under the State Property Act 1954. While the Attorney General had a contingent interest in the latter possibility, it was understandable that counsel on his behalf did not seek to argue that the bequest was not charitable, since he appeared in the case in his role as the protector of charities. In the result, there was no legitimus contradictor to contest the proposition that this was a charitable bequest. While this did not make the resolution of the matter any easier, I considered it essential, for the reasons already stated, to consider the issue as to whether the bequest was a charitable bequest.
*190
Mr Gordon SC on behalf of the plaintiffs submitted that the bequest was a charitable gift for the advancement of education or, in the alternative, the advancement of learning and in either case was for the benefit of the community. He submitted that since the intentions of Dr Worth could no longer be carried out and the governors, having considered the various possibilities, had decided to entrust the future custody of the books to Trinity College, the appropriate conditions had arisen for the framing of the cy-près scheme in the manner proposed by the plaintiffs. He said that preserving the library as an integral collection in a great centre of scholarship and learning such as Trinity College would be the most appropriate means of carrying into effect Dr Worth’s intentions in the greatly changed circumstances of today. He submitted that, apart from these considerations, Dr Worth’s own associations with Trinity College of which he was a graduate, and the long association of Trinity College with Steevens’ Hospital, signified by the presence of the provost as an ex officio governor, also indicated that this would be an appropriate means of carrying into effect Dr Worth’s intentions. He also submitted that the maintenance by the health board of the library in their headquarters and the expenditure of funds to that end was ultra vires the powers of the health board under the Health Acts 1947 to 1991.
Mr Butler SC on behalf of the Attorney General, submitted that the bequest was a charitable gift analogous to the bequest of money for the maintenance of a library for a regimental officers’ mess found to be charitable by Farwell J in In re Good, Harrington v. Watts [1905] 2 Ch 60. He said that it was the view of the Attorney General that it would be preferable to keep the books in the hospital where they were originally housed, provided the practical difficulties that had been discussed during the course of the hearing could be resolved to the satisfaction of the court.
Mr Herbert on behalf of the health board submitted that the bequest was a charitable gift for the benefit of the hospital. He said that the charitable nature of gifts to hospitals had been established beyond doubt by the decision of the former Supreme Court in Barrington’s Hospital v. Commissioner of Valuation [1957] IR 299. He submitted that the whole tenor of the will reflected Dr Worth’s intention to benefit the hospital rather than any individuals and that the words in the will ‘for the use, benefit and behoof of the physician, chaplain and surgeon for the time being of the said hospital’ and the directions as to the safe-keeping of the books should be regarded as imposing a precatory trust on the trustees with which they were not necessarily obliged to comply, citing in support the decision of Murray J in the Northern Ireland case of In re Steele, Northern Bank Executor and Trustee Co. Ltd v. Linton [1976] NI 66. He submitted that, in the alternative, the gift could be regarded as one for educational purposes which was beneficial to the community and that the fact that it was for the benefit of a numerically insignificant group was not of importance. He submitted that, *191 whether the gift was for the benefit of the hospital or for educational purposes, the library itself should be preserved in the building for which it had been originally intended by Dr Worth and that the evidence before the court established that this could be done without endangering the books themselves or rendering them less accessible to scholars. He submitted that the views of the Attorney General as the protector of charities on a matter of this nature should carry particular weight with the court. He finally submitted that the health board clearly had power under the Health Acts to maintain the library and apply funds for that purpose, referring in particular to s. 78 of the 1947 Act and s. 60 (3) of the 1970 Act.
(VI) The applicable law
Although the jurisdiction of the Court of Chancery to enforce charitable trusts is sometimes referred to as originating in the English and Irish Statutes of Charitable Uses (43 Eliz. 1., c.4; 10 Char. 1., Sess. 3, c.1) passed respectively in the reigns of Elizabeth I and Charles I, it is generally accepted that the jurisdiction dates from an earlier time. The significance of the two statutes (both long repealed) is that the preambles have, in numerous cases, been treated by judges as providing an ‘index’ to charities recognised by the law. In addition, however, the law has identified new purposes as charitable as they arose for consideration. Thus, the list of charitable purposes in the relevant statute is not exhaustive and a trust may still be charitable if it is within ‘its spirit and intendment’ (Morice v. Bishop of Durham (1804) 9 Ves Jr 399). Although the wording of the preambles is different, it has also been held that the Irish Act was an ‘exact pattern’ of the English Act and intended to effect the same results. (Incorporated Society v. Richards (1875) IR 10 CL 104).
The charitable purposes set out in the Irish statute are:
The erection, maintenance or support of any college, school, lecturer in divinity, or in any of the liberal arts or sciences, or for the relief of any manner of poor, succourless, distressed or impotent persons, or for the building, re-edifying or maintaining and repair of any church, college, school or hospital, or for the maintenance of any minister and preacher of the holy word of God, or for the erection, building, maintenance or repair of any bridges, causeyes, cashes, paces and highways within this realm, or for any other like lawful and charitable use and uses, warranted by the laws of this realm now established and in force …
In the course of his argument in Morice v. Bishop of Durham, Sir Samuel Romilly said in a much cited passage:
There are four objects, within one of which all charity, to be administered in this Court, must fall: first, relief of the indigent; in various ways: money: provisions: education: medical assistance; secondly, the advancement of *192 learning: thirdly, the advancement of religion and, fourthly, which is the most difficult, the advancement of objects of general public utility.
He also drew a distinction which was repeatedly echoed in subsequent cases between ‘charity’ and what he called ‘liberality’ (or ‘benevolence’, to use the expression more popular in the later cases), which is not synonymous in law with ‘charity’.
Romilly MR’s classification of legal charities into four categories was adopted by Lord Macnaghten in his celebrated speech in Commissioners for Special Purposes of Income Tax v. Pemsel [1891] AC 531, with one amendment which is of some significance in the present context. The frequently cited passage is as follows:
How far then, it may be asked, does the popular meaning of the word ‘charity’ correspond with its legal meaning? ‘Charity’ in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do either directly or indirectly.
Lord Macnaghten’s substitution of ‘education’ for ‘learning’ does not mean that gifts which can be regarded as for the advancement of learning but cannot be regarded as gifts for the advancement of education, as the latter expression has been construed by the courts, are not charitable. They may be charitable if they are for the benefit of the public. The distinction is material, since it has been held in England that gifts in the first three categories are presumed to be for the public benefit. In National Anti-Vivisection Society v. Inland Revenue Commissioners [1948] AC 31 at p. 65, Lord Simonds said:
If the purpose is within one of the heads of charity forming the first three classes in the classification which Lord Macnaghten borrowed from Sir Samuel Romilly’s argument in Morice v. Bishop of Durham, the court will easily conclude that it is a charitable purpose …. When a purpose appears broadly to fall within one of the familiar categories of charity, the court will assume it to be for the benefit of the community and, therefore, charitable, unless the contrary is shown, and … the court will not be astute in such a case to defeat by doubtful evidence the avowed benevolent intention of a donor.
To that statement of the law, one rider is necessary in Ireland: in the case of gifts for the advancement of religion, the presumption that they are charitable is conclusive by virtue of s. 45 of the Charities Act 1961.
*193
There was some discussion in the arguments of counsel in the present case as to the divergence of views between Irish and English judges as to whether charitable trusts within the fourth category are to be examined by reference to a subjective or an objective test. That divergence of view also existed, in a far more acute form, in the case of trusts for the advancement of religion but is no longer relevant since the enactment of s. 45 to which I have already referred. In the case of gifts in the fourth category, it is of less significance than is sometimes supposed, as a careful study of the judgment of Fitzgibbon LJ in In re Cranston, Webb v. Oldfield [1898] 1 IR 431 and the speech of Lord Simonds in National Anti-Vivisection Society v. IRC makes clear. In the present case I do not think that the distinction, to the extent that it can be said to exist, has any relevance.
In every case, the intention of the testator is of paramount importance. If he intended to advance a charitable object recognised as such by the law, his gift will be a charitable gift. In the case of gifts which do not come within the first three categories, the fact that the testator’s view as to the public utility of his favoured object — e.g. vegetarianism — is not shared by many people will not of itself prevent it from being, in the eyes of the law, a valid charitable object within the fourth category, provided it is not illegal, irrational or contra bonos mores. That, as I understand it, is the effect of the majority decision of the Irish Court of Appeal in In re Cranston, Webb v. Oldfield. In the present case, the two possible charitable objects which come within the fourth category — the advancement of learning and of hospitals — would be considered as beneficial to the public by an appreciable number of people and are obviously not illegal, irrational or contra bonos mores. Consequently, the divergence of view sometimes thought to exist between the English and Irish courts is not material.
There is one other principle of general application to which I should refer. The court leans in favour of charities and, consequently, will prefer a construction which gives effect to the testator’s desire to benefit a stated object rather than one which leads to a failure of the bequest.
I now turn to the specific forms of charitable bequests which arise for consideration in the present case.
The first category — gifts for the advancement of education — would embrace, not merely gifts to schools and universities and the endowment of university chairs and scholarships: ‘education’ has been given a broad meaning so as to encompass gifts for the establishment of theatres, art galleries and museums and the promotion of literature and music. In every case, however, the element of public benefit must be present and, if the benefit extends to a section of the community only, that section must not be numerically negligible.
In In re McEnery, O’Connell v. Attorney General [1941] IR 323, Gavan Duffy J laid particular stress on this last aspect of education charities. In that case, the bequest was of a trust fund for enabling the nephews and nieces of the testator and their male descendants to obtain professions. The learned judge *194 pointed out that it was then over 200 years since Lord Hardwicke LC in Attorney General v. Pearce (1740) 2 Atk 87 declared that it was its extensiveness that constitutes a public charity. Gavan Duffy J concluded that:
The trust here is, in my opinion, too narrow to be charitable; the motive may have been charitable, but the intention was to benefit specific individuals, and the fact, though not conclusive, is worthy of note that, if the trust were good, each suitable beneficiary would appear to have an enforceable claim upon the trust ….
Even more strikingly, in Oppenheim v. Tobacco Securities Trust Co. Ltd [1951] AC 297, a trust for the education of children of employees, or former employees, of a group of companies was held not charitable, although the number of employees exceeded 110,000. In each of these cases, the trust failed, of course, not simply because the numbers were insignificant (they could certainly not have been so described in the Oppenheim case): they also suffered from the generally fatal defect of a requirement that the beneficiaries be related to or connected with a named propositus .
In the present case, even if it could be said that the bequest was for educational purposes (and, given the insignificant proportion of the library devoted to medicine and surgery, that would involve some straining of the concept of ‘education’ even beyond the liberal limits of the modern decisions), it would be impossible to hold that this was an educational charity for the benefit of the public. The books are given and bequeathed to the trustees:
for the use, benefit and behoof of the physician, chaplain and surgeon for the time being of the said hospital ….
The only form of educational charity (if such indeed this is) more limited than this which it is possible to envisage is one for the benefit of one or two named individuals or office holders. I have no hesitation in rejecting the submission that the bequest was a charitable gift for the advancement of education.
The next category to which it was submitted that the bequest belonged was that of a charitable gift for the advancement of learning. As I have already mentioned, under Lord Macnaghten’s classification, this species of charitable gift, to the extent that it is recognised by the law, belongs to the fourth category of trusts for purposes beneficial to the community not coming within any of the other categories.
In In re Shaw, Public Trustee v. Day [1957] 1 WLR 729, Harmon J said that:
If the objective [of the gift] be merely the increase of knowledge, that is not in itself a charitable object unless it be combined with teaching or education.
*195
This view, which was based to some extent on the decision of the House of Lords in Whicker v. Hume (1858) 7 HL Cas 124, might not command universal acceptance today. Thus, in In re Hopkins’ Will Trusts, Naish v. Francis Bacon Society Inc. [1965] Ch 669, Wilberforce J, as he then was, when considering a gift establishing a fund ‘to be earmarked and applied towards finding the Bacon-Shakespeare Manuscripts’, said that:
I should be unwilling to treat [Harmon J’s words] as meaning that the promotion of academic research is not a charitable purpose unless the researcher were engaged in teaching or education in a conventional meaning; and I am encouraged in this view by some words of Lord Greene MR in In re Compton, Powell v. Compton [1945] Ch 123.
It may well be that the words of Harmon J, literally applied, would exclude from the legal definition of charity certain trusts for the advancement of knowledge, e.g. the encouragement of academic research, which might reasonably be regarded as for the public benefit. If that were so, I would prefer the view of Wilberforce J.
A gift of a library may be charitable as being for the public benefit. However, it is clear from the authorities that a gift of a library is not charitable per se: thus, gifts to private bodies for the purpose of establishing libraries for the benefit of persons paying subscriptions have been held not to be charitable in Carne v. Long (1860) 2 De G F & J 75 and In re Prevost, Lloyds Bank Ltd v. Barclays Bank [1930] 2 Ch 383. But a gift of a library which is open to the public has been held, as one would expect, to be charitable: see In re Scowcroft, Ormrod v. Wilkinson [1898] 2 Ch 638 at p. 642. So too have gifts of libraries where they can be reasonably described as being conducive to the attainment of a charitable object, such as the gift for the purchase of books for Trinity College, Oxford, in Attorney General v. Marchant (1866) LR 3 Eq 424 where it was held to be for the advancement of education and the gift in the decision cited by Mr Butler SC of a fund to purchase a library for an officers’ mess, where it was held to be conducive to increasing the efficiency of the British army, a recognised charitable purpose.
There is, in my view, no indication in the will of Dr Worth that he intended the library to be for the benefit of any persons other than the named office holders. If he had wished his books to be available to scholars generally, he would have bequeathed them to the library of Trinity College or Marsh’s Library, with both of which he was obviously well acquainted. Far from doing so, he was meticulous in ensuring that the books should only be available to the three designated office holders. They alone were to have keys to the library and under no circumstances were any of the books to be removed. He laid down a stringent procedure under which the governors were to satisfy themselves at regular intervals that none of the said books were ‘wanting and defaced’.
*196
I see no reason to attribute to Dr Worth any motive or intention that does not appear plainly from his will. His wishes are in fact abundantly clear: to provide in the hospital, the establishment of which was so obviously close to his heart, a fine library to be used by the physician, surgeon and chaplain who alone would have access to the room in which the library was housed. The only argument put forward in support of the contention that Dr Worth intended his books to be generally available to scholars from everywhere is the direction that the books should be catalogued and copies of the catalogues placed in the library of Trinity College and Marsh’s Library. I accept entirely the expert opinion of Dr Donlon and Mrs McCarthy that the catalogues prepared were in the form which would have been adopted by a learned bibliophile who wished scholars to have access to his library. But there was obviously another reason which might have prompted Dr Worth to have two copies of the catalogue available in what he clearly considered responsible hands. Given his concern with the security of the books, it would have been a sensible precaution for him to have ensured that other copies of the catalogue were available, if the original was lost or mislaid or pages torn out of it by some person anxious to conceal a theft from the library. Happily, it is unnecessary to speculate on Dr Worth’s reasons for giving these directions: he, or the draftsman of the will on his instructions, has spelt out the reason with his usual meticulous clarity:
and to the end that they may be better preserved I will and direct that three catalogues may be made of them ….
There was nothing to prevent Dr Worth from directing copies of the catalogues to be made ‘to the end that scholars and others of learning and repute may peruse the said books’ or words to that effect. He chose an entirely different formula and it is not for me to ascribe to him motives which nowhere appear in the will.
I am satisfied, accordingly, that this was not a charitable gift for the advancement of learning within the fourth Pemsel classification.
The third category of charitable gifts within which it was sought to place this disposition was that of a gift for the benefit of a hospital. That such a gift is charitable is clear beyond doubt from the decision of the former Supreme Court in Barrington’s Hospital v. Commissioner of Valuation. As Kingsmill Moore J pointed out in that case, the wording of the Irish preamble points even more clearly to that conclusion than the wording employed in the English preamble, since it refers to: ‘the relief of any manner of poor, succourless, distressed or impotent persons ….’
The words in the English statute are: ‘the relief of aged, impotent and poor people ….’ The disjunctive ‘or’ in the Irish preamble lent further support, in the learned judge’s view, to the proposition that the relief of ‘impotent’ persons was *197 within the intendment of the statute. It was also clear from that decision that the fact that the hospital admits fee paying patients in addition to those treated without charge (as Steevens’ Hospital undoubtedly did) does not affect its charitable status.
The question arises, however, as to whether a gift of a library such as this for the benefit of the holders of particular offices within the hospital can properly be regarded as a gift for the benefit of the hospital itself and hence charitable. I cannot accept Mr Herbert’s submission that those parts of the will which follow the bequest to the trustees of the hospital and which make it clear that the gift is to be for the benefit of the office holders and imposed the conditions in relation to the security of the books are ‘precatory’ in nature, i.e., imposing no more than a form of moral obligation on the trustees to comply with the testator’s wishes but having no effect in law. Mr Herbert relies in support of this submission on the absence of any gift over and also on the decision of Murray J in In re Steele. In that case, it was held that a condition attached to an admittedly charitable gift for the repair and upkeep of a parish church under which the testator’s family burial plot was to be maintained was a precatory condition which did not affect the validity of the gift for the repair of the church. In the present case, however, the gift to the trustees ‘for the use, benefit and behoof of’ the office holders is not in any sense a condition: it is quite clearly a bequest to trustees for the benefit of designated individuals. That of itself is fatal to Mr Herbert’s contention but, in any event, the language used in the conditions which follow is not consonant with their being treated as precatory only: they are plainly directions which the testator wished to be complied with to the letter.
I am, however, satisfied that the gift is one for the benefit of the hospital on the other grounds advanced by Mr Herbert. That Dr Worth intended to benefit Steevens’ Hospital in his will is beyond question: he begins his will with a bequest of money for that purpose and it is noteworthy that it is to the trustees of the hospital that he gives his library for the benefit of the designated persons. It is, moreover, the holders of the offices, and not named individuals, who are to benefit. In addition, he was concerned that the hospital and its patients should not be at any loss as a result of the bequest.
While the relatively small number of medical and surgical books in the library would not have rendered it of much practical benefit to the physician and surgeon and the vast number of books devoted to purely secular and profane topics would not have been of any great assistance to the chaplain in his studies of divinity, the library in its beautiful setting would have provided a haven of quiet intellectual relaxation for the beneficiaries. Doctors and surgeons, as we all know, develop a necessary professional detachment from the scenes of death and suffering which greet them every day in the course of their work. But it is equally obvious that they value the solace of a completely different environment from time to time and I think there can be no doubt that this is what Dr Worth *198 intended to provide. How much more necessary it was in the terrible conditions of the early eighteenth century, when the days of anaesthetics and modern drugs lay far in the future, need not be emphasised. A nurses’ home was found to be charitable for not dissimilar reasons in In re White’s Will Trusts, Tindall v. Board of Governors of United Sheffield Hospitals [1951] 1 All ER 528.
No case of the gift of a library for such a purpose appears to have come before the courts before, the nearest equivalent being the gift of the library to the officers’ mess in In re Good. The view of Farwell J that the purchase of books for the library would in some sense be conducive to the efficiency of the army seems, with respect, a little fanciful and this may have prompted the doubts expressed by Lord Normand as to the correctness of the decision in IRC v. City of Glasgow Police Athletic Association [1953] AC 380 at p. 391. But for the reasons I have already given, I do not think that there is any ground for scepticism in the present case as to the capacity of the gift to play a part in the advancement of the great charity represented by the hospital itself.
I conclude, accordingly, that the bequest in the will was a valid charitable bequest for the benefit of Steevens’ Hospital, falling within the fourth category of Lord Macnaghten’s classification. The next issue that has to be considered is as to whether circumstances have arisen which justify the invocation of the cy-près jurisdiction of the court.
The circumstances in which that jurisdiction may be invoked were defined as follows by Budd J in In re Royal Kilmainham Hospital [1966] IR 451 at p. 469:
The law requires that if a charity can be administered according to the directions of the founder, it should be so administered. When it is established that a gift has been made with a general intention of charity and a failure of purposes ensues, it is not allowed to fail but will be carried out cy-près. Likewise, where there is an absolute perpetual gift to a charity, even though the trust be only for the accomplishment of a particular charitable purpose, the same results ensue. The principle is applied where the method indicated by the donor of carrying out his charitable intention becomes impractical, or his intentions cannot be executed literally, most frequently owing to altered circumstances …. The cy-près principle is confined to cases where property is given with a general intention to charity with this exception, that where property is given absolutely and perpetually to charity for a particular purpose and is vested in the charity the fund can be applied cy-près irrespective of the donor’s particular intention. As to what is to be regarded as a general charitable intention, no hard and fast rule can be laid down.
The provisions of s. 47 of the Charities Act 1961 must also be borne in mind. They provide inter alia that:
The circumstances in which the original purposes of a charitable gift may be *199 altered to allow the property given or part of it to be applied cy-près shall be as follows:
(a) Where the original purposes, in whole or in part—
(i) have been as far as may be fulfilled; or
(ii) cannot be carried out, or cannot be carried out according to the directions given and to the spirit of the gift ….
(c) Where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to the spirit of the gift, be made applicable to common purposes ….
(e) Where the original purposes in whole or in part have since they were laid down
(iii) ceased … to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift ….
I do not think that any ‘general charitable intention’, in the sense referred to in the authorities, can be inferred in the case of this gift. It is quite clear from the terms of the will that Dr Worth intended to benefit Doctor Steevens’ Hospital and no other institution. It was, however, undoubtedly an absolute and perpetual gift of the library for the benefit of Doctor Steevens’ Hospital, which I have already found to be a charitable purpose. It is also clear that, since the hospital no longer exists, the original purposes of the charitable gift cannot be carried out according to the directions given and to the spirit of the gift. It follows that the original purposes should now be altered so as to allow the property to be applied cy-près.
Before considering how the property should be applied cy-près, one further legal matter remains to be considered. It was submitted on behalf of the plaintiff that it would be ultra vires the powers of the health board under the Health Acts 1947 to 1991, to undertake the custody and management of the library if it were to be housed in the hospital building. This is clearly not a particularly meritorious argument, since, even if it were technically correct but the plaintiffs and the health board were in agreement that the books should be returned to the hospital there could be no legal objection to the ownership of the books remaining vested in the plaintiffs as trustees while mere de facto possession remained with the health board. However, I am also satisfied that it is without legal substance. The health board are expressly empowered under s. 78 of the 1947 Act and s. 60(3) of the 1970 Act to acquire for their statutory purposes: ‘any estate or interest in land’.
*200
Like all other corporations, they also enjoy, in addition to their express powers, an implied power to do any acts which are incidental to or consequential upon their express objects. (See Attorney General v. Great Eastern Railway (1880) 5 App Cas 483). If a health board is in a position to acquire a property which is suitable for carrying out their statutory objects — and it is not suggested that Doctor Steevens’ Hospital was not such a building — the vendors might very well stipulate that, as part of the sale, the purchasers should pay for certain fixtures and fittings, e.g. carpets etc. They might also make such a stipulation in relation to pictures and other furnishings. If the governors and the health board had agreed on the sale at a stage when the governors had not approached Trinity College with a view to transferring the library into their custody and the governors had satisfied themselves that the health board would be responsible custodians of the books, I do not think it could be plausibly argued for a moment that the health board would be acting ultra vires in agreeing to accept custody of the books. If acquiring a premises suitable in every way for their statutory purposes involved taking on an additional role as custodian of the books, I have not the slightest doubt that it could reasonably be regarded as one of the incidental or consequential powers they enjoyed in addition to the express power of acquiring property conferred on them by the Acts. The situation cannot be altered by the fact that the books have been temporarily removed to the safe custody of another body pending a decision as to their future. If all the other requirements of both the law and expert opinion are satisfied and particularly if all the aesthetic considerations indicate that Steevens’ Hospital is indeed the appropriate repository for these books, then I have no doubt that the health board should be regarded as having, in addition to their statutory powers to acquire and hold property, an implied power to become the custodian of the library.
(VII) Application of the property cy-près
In considering how the property should be applied cy-près and, in particular, whether a scheme should be framed in the manner proposed by the plaintiffs, it is, of course, desirable that the original intentions of the testator should be adhered to so far as is possible. The difficulties, however, of both ascertaining those intentions and giving effect to them in the case of so venerable a bequest as this are obvious. As Meredith J remarked in Governors of Erasmus Smith Schools v. Attorney General (1932) 66 ILTR 57 at p. 61:
To apply without modification a charitable intention that is only expressed in relation to assumed facts and under different conditions is obviously not to carry out the real intention at all. It is on this principle that courts of law adapt the statement of a charitable intention to suit altered circumstances and conditions with a view to giving effect to the real intention. Donors cannot be expected to provide expressly for more than the world and the times with which they are familiar. Accordingly, the perpetuity for which charities may endure throws *201 upon the court the burden of providing for that which the donor did not foresee, in accordance with what it finds to be the underlying intention of the charity foundation.
Thus, in a case such as the present, it is a futile exercise to transport Dr Worth in one’s imagination in some form of time machine to Dublin in 1993. All that the court can do is to apply the gift as it might be applied by a late twentieth century equivalent of Dr Worth. Our hypothetical benefactor should be a medically qualified person with a passionate interest in bibliophilia and of a charitable disposition. It is also reasonable to credit him with a desire to associate his charitable work with the building in which Steevens’ Hospital was housed, since his eighteenth century equivalent wished the hospital to be the object of his benevolence in perpetuity. If this approach is adopted, I think that it brings one as close as is reasonably possible to what the draftsman of the 1961 Act has called ‘the spirit of the gift’.
Such a person would not seriously consider relocating the library in one of the modern Dublin hospitals. He would have in the forefront of any plan he might devise the paramount necessity of preserving the library in the custody of an appropriate and responsible body. He would recognise that the principal value of the library is not the provision of knowledge or intellectual stimulus or excitement to readers of the books: it is making available to scholars and others the books as books, considered both individually and as a collective library. The typography, paper and bindings, altogether apart from the contents, are of enormous interest to scholars and bibliophiles the world over. Hence, he would be concerned to ensure that such persons had reasonable but supervised access to the library and also the other scholarly tools necessary for making an informed study of the contents of the library, such as a modern computerised catalogue, suitable reference books and other comparable books. Finally, he would consider whether the broader aesthetic considerations to which I have referred in an earlier part of this judgment would point towards preserving the books in Steevens’ Hospital or transferring them to Trinity College, the only other institution which has been suggested as a possible repository.
As to the governors, they, it would seem, are still theoretically in existence as a corporate body, since the Act which incorporated them has not been repealed. They were satisfied to transfer custody of the library to Trinity College at a stage when there was no potential purchaser of the hospital building who might be prepared to act as its custodian and who might be regarded as a responsible guardian of the books. In those circumstances, it would not be proper to impute to them any views as to the merits of the present controversy, even if such views were relevant to its resolution.
If these are the criteria to be applied, it will be evident from my summary of the evidence in the case that either Doctor Steevens’ Hospital or Trinity College *202 would provide, in some respects at least, a suitable repository. In both buildings, it will be possible to preserve the books from the dangers of fire, accidental or intentional damage or loss and theft. To the extent that conditions in Doctor Steevens’ Hospital fall short of the most rigorous standards in this area — and they are undoubtedly the standards which should be applied — there is no inherent difficulty, as the reports of the technical experts demonstrate, in remedying those deficiencies.
Those reports, so far as the evidence goes, highlight two possible difficulties in the area of fire precautions. It was pointed out that the ceilings were not impervious to water and that there might be some hazard in a firefighting situation. It was not suggested, however, that this was an insuperable problem and it would be surprising if it were so. Secondly, it was said that because the interior of the library was listed for preservation in the development plan, it would not be possible to comply with the specification of Class 0 for interior surfaces in the building regulations. At worst, this means that the owners of the building are subjected to conflicting legal requirements. If responsible fire safety experts are satisfied that all reasonable precautions have been taken, then the building regulations — which were not opened in any detail — presumably cannot be enforced against the owners to require them to commit an illegal act by violating the planning code. Again, it was not suggested that this was in any sense an insuperable problem.
The advantage which Trinity College possesses is the ready availability of conservation techniques which are acknowledged to be by far the best available in the Republic of Ireland. I am satisfied, however, that while this is undoubtedly a factor to be weighed, it cannot be regarded as a conclusive factor. All the evidence indicates that a remarkable feature of the books comprising the library is the magnificent condition in which they have been preserved. It is not in any way to denigrate the skills of the conservators in Trinity College to say that this result was achieved without any assistance from modern technology: it was the result of the books being housed in the glass fronted bookcases in Doctor Steevens’ Hospital for 260 years and of the relatively sparing use to which they were subjected during that period. Since any scheme approved of by the court for either institution would require the rigorous maintenance of an appropriate environment in terms of humidity, temperature and freedom from dust and other pollutants, it follows that the existence of the conservation facilities in Trinity College cannot be in any sense a decisive factor.
Trinity College is at most a 15 minutes’ car journey from Steevens’ Hospital and it is implausible to suggest that, on the relatively rare occasions that it might be necessary to seek the assistance of the conservation facilities, the relevant books could not be transported in reasonable safety to the college. That, of course, presupposes the continued involvement of Trinity College in the administration of the charity: if their assistance were not available, it would be *203 necessary to seek conservation facilities elsewhere. This would undoubtedly involve some additional expense if, for example, the relevant expert was to travel from the British Library or some equivalent institution in England with any necessary equipment. That would raise again the question of funding, but certainly does not constitute an insuperable obstacle.
So far as the existence of cataloguing, comparisons with other books and the availability of reference books is concerned, Trinity College undoubtedly possesses advantages which the hospital does not. I am satisfied, however, that there is no technical difficulty in providing the necessary computer equipment in the hospital which can be linked in turn to computer based catalogues in other libraries. It is equally clear that, provided the necessary funds are forthcoming, the necessary reference library can also be provided in the hospital and the services of a professional librarian secured.
It is undoubtedly the case that comparisons with other books can be made by scholars if the books are housed in Trinity Library which cannot be made if they are to be returned to the hospital. But this is heavily outweighed by another consideration. If the books are not returned to the hospital, it will be impossible for scholars interested in the history of libraries, art historians and sociologists to study the contents, arrangements and fittings of an eighteenth century library, the manner in which the books were arranged on the shelves and how the library cases and presses were constructed to accommodate the different format of the books. They would have to examine the books in Trinity College, then go to the empty and deserted Worth Room in the hospital and attempt to construct a mental picture of how the library must originally have looked. Provided all the requirements I have mentioned of security and environmental control can be met, that is a result which should be avoided.
There is a general acceptance by those who gave evidence that the library will be of interest to a relatively limited number of scholars and that it would indeed be undesirable, not least for security reasons, for the public in general to be allowed unrestricted access to the books. I think it is most unlikely that scholars with a genuine interest in the library will be inhibited in gaining access to it by its being situated in the hospital building rather than in Trinity College.
There remain what I have referred to as the general aesthetic considerations. As to these, I have little doubt as to the direction in which our imaginary benefactor would lean. That Trinity College is a centre of living and vibrant scholarship is beyond question. That Steevens’ Hospital is now the headquarters of what might be described without disrespect as a bureaucratic organisation is also true. I can only say that on a visit to the latter building and on entering the Worth Room for the first time, I was in no way conscious of the sense of ‘alienation’ of which Dr Donlon spoke.
I bear in mind the dangers of converting oneself into a witness and the possibility that, on the day on which I paid my visit, conditions were unusually *204 quiet: all I can say is that I found in the building an atmosphere of relative calm which provided a striking contrast to the necessarily intense bustle and activity of a modern acute hospital.
More decisively still, however, I think the considerations so eloquently advanced by Dr Craig and Mr Breugelmans must in the end prevail. In this context, I was much struck by the belief expressed by Dr Donlon and Mrs McCarthy and, I have no doubt whatever, genuinely held by these eminent experts, that returning the collection to Doctor Steevens’ Hospital is ‘to seek to freeze the collection in time rather than as a vibrant and continuous legacy to a scholarly community’ and that this is to be resisted.
That preserving the Worth Library in its original home in Steevens’ Hospital will be to ‘freeze it in time’ is probably true. Many who have visited carefully preserved or restored buildings of historic, architectural or artistic interest in Ireland or abroad will have been conscious of precisely that feeling of moving into long vanished worlds. Far from it being a serious disadvantage, it seems to me, and ultimately I must make the decision, one of the chief glories of the treasures of which we are now the custodians. I see no reason why, under careful and responsible management subject to the ultimate control of the court, the Worth Library should not join them, preserving almost exactly as it existed 250 years ago in its original setting the private library of a man of taste and learning at the flood tide of the Enlightenment.
I am accordingly satisfied that any cy-près scheme framed by the court in this case must provide for the retention of the books and the portraits in their original setting in Doctor Steevens’ Hospital. At the moment, the only scheme before the court is that set out in Appendix 1 providing for the retention of the books in their present temporary home in Trinity College. It will accordingly be necessary to adjourn the further hearing of the case in order to enable a new draft scheme to be prepared. It is obviously extremely desirable that the plaintiffs should remain as trustees, although it might be appropriate to join the health board as a new trustee. I think it is of importance that the various skills of Trinity College and the expertise of Dr Donlon should continue to be available in the administration of the trust. It is, however, to be borne in mind that Trinity College only became involved in this matter originally at the request of the governors and it may be that they will not wish to participate further in the administration of the trust. That is entirely a matter for them and neither they nor Dr Donlon can or should be compelled by the court to continue their interest in the matter. It is also the case that the present proposals by the health board are somewhat vague in the area of funding and that the two questions of fire safety — and any others which I may have overlooked — will also have to be addressed. It is to be hoped that, when the matter comes on after an interval there will be more concrete proposals before the court in relation to funding, specifying the actual costs of maintaining the library and the manner in which they *205 will be met. I would naturally hope that, during the period of the adjournment, further discussions would take place between the plaintiffs and the health board as to the best method of re-establishing the Worth Library in Doctor Steevens’ Hospital subject to all the necessary security and other arrangements. I will, however, hear counsel as to the form of order I should make, having regard to the findings in this judgment.
APPENDIX I Scheme
For the regulation, management and administration of the property of the above named charity.
Whereas:
(a) Dr Edward Worth by his last will dated 4 November 1723 gave and bequeathed all his books (subject to certain specified exceptions) in trust to be kept at some convenient room at Dr Steevens’ Hospital for the use, benefit and behoof of the physician, chaplain and surgeon for the time being of the said hospital.
(b) By statute of 30 George II c. 23 the trustees of the said hospital were incorporated under the name ‘the Governors and Guardians of the Hospital founded by Doctor Richard Steevens’.
(c) The said Dr Edward Worth died in or about February 1732 and in accordance with the terms of his said will the books which he gave and bequeathed for the use of the physician, chaplain and surgeon of the said hospital have been housed in a library commonly called the ‘Worth Library’ at the hospital’s premises at Steevens’ Lane in the City of Dublin.
(d) It has been found no longer practicable to carry on the said Dr Steevens’ Hospital which has now been closed and the said premises has been sold.
(e) The governors of Dr Steevens’ Hospital desired that the contents of the said Worth Library be transferred to the Provost, Fellows and Scholars of the College of the Holy and Undivided Trinity near Dublin. The Commissioners of Charitable Donations and Bequests for Ireland vested the trust property in the Provost, Fellows and Scholars of the College of the Holy and Undivided Trinity near Dublin and the director for the time being of the National Library as trustees by order dated 5 February 1991.
(f) It is desired that the Worth Library shall be administered in accordance with the scheme hereinafter set out.
Now it is hereby provided as follows:
*206
1. Definitions:
(a) The ‘commissioners’ means the Commissioners of Charitable Donations and Bequests for Ireland.
(b) the ‘charity’ means the Worth Library hereby constituted.
(c) the ‘property of the charity’ means the books, pamphlets, manuscripts, reports, maps and other documents, the portraits and the shelving and bookcases heretofore constituting the Worth Library and kept in the library of that name at Dr Steevens’ Hospital in the City of Dublin.
(d) the ‘trustees’ means the Provost, Fellows and Scholars of the College of the Holy and Undivided Trinity near Dublin and the director for the time being of the National Library, the current director being Patricia Donlon.
(e) the ‘trust fund’ means all monies and other property which may be paid or transferred to the trustees at any time hereafter to be held by them on the charitable trusts declared by this scheme and the investments from time to time representing same.
(f) Unless the context otherwise requires the singular includes the plural and the masculine includes the feminine.
(g) Clause headings are for reference only and shall not be taken into consideration in their interpretation.
2. Name of charity:
The name of the charity shall henceforth be ‘the Worth Library’ and under that name shall be carried on in accordance with the provisions of this scheme.
3. The objects of the charity:
(a) The trustees shall hold the property of the charity upon trust in accordance with and subject to the powers and provisions of this scheme for the purposes of preserving and conserving the same as a unit in perpetuity and maintaining a library or other suitable environment for the public display and study of same in or about the premises of Trinity College in the City of Dublin and the trustees shall apply the trust fund in furtherance of such trust.
(b) In furtherance of the foregoing objects to do all or any of the following things:
(i) To raise funds and invite and receive contributions from any person or persons whatsoever by way of subscription, donation and otherwise.
(ii) To purchase, take on lease or in exchange, hire or otherwise acquire and hold for any estate or interest any real or personal property and any rights or privileges which may be necessary for the promotion of the charity’s objects or any of them and to sell, exchange, let, mortgage, dispose of, turn to account or otherwise deal with the same.
(iii) To borrow and raise money and secure or discharge any debt or obligation of the charity in such manner as may be thought fit.
*207
(iv) To do all such other things as may be necessary for the attainment of the charity’s objects or any of them.
4. The management of the charity:
(a) The trustees shall have the absolute management and entire control of the property of the charity and the trust fund and may make, rescind and alter such regulations (not being inconsistent with this scheme) as they think fit with respect to the purposes for which, the manner in which, the persons by whom, the terms and conditions on which and the times when the property of the charity shall be used and otherwise as the trustees shall think necessary for the purposes of the charity or in connection with the execution of any of the trusts or powers contained in this scheme.
(b) The trustees shall be entitled where they consider it prudent and proper to allow any book, pamphlet, manuscript, report, map or other document or portrait comprising part of the property of the charity to be displayed on a temporary basis separately from the remainder of the property of the charity whether in and about Trinity College Dublin or elsewhere.
(c) The trustees may from time to time open and maintain in their name a banking account or banking accounts at such bank or banks as they shall from time to time decide and may at any time pay any money forming part of the trust fund to the credit of any such account or accounts or place the same with any banker or bankers. Any money at any time subject to the trusts of this deed and requiring investment may be invested at the discretion of the trustees in any of the investments for the time being permitted by law for the investment of trust funds with power for the trustees at their discretion from time to time to vary any such investment or any other of a like nature.
(d) The trustees shall be entitled to procure the services of an investment manager, who may be an individual or corporate body to advise them on the investment of the trust fund or any part thereof, and to fix the remuneration of such investment manager at such amount as shall be agreed with such investment manager.
(e) The trustees shall be entitled to discharge out of the income of the trust fund the remuneration of the said investment manager and all expenses of or incidental to the employment of such investment manager or incurred by the trustees in or about the management of the property of the charity or the trust fund.
(f) The trustees may at any time appoint upon such terms as they may determine a librarian and/or such other officers and servants as the trustees shall deem expedient for any purpose connected with the trusts of this scheme and may at any time remove such librarian, officer or servant.
(g) The trustees shall keep full, true and accurate accounts of all sums received and expended by them on account of the charity and shall produce *208 yearly profit and loss accounts, balance sheets and capital accounts, and such accounts shall be audited annually by auditors to be appointed by the trustees for that purpose, with the approval of the commissioners.
(h) The trustees shall supply all such information regarding the carrying out of their functions herein as may be required by the commissioners.
(i) The revenue account, balance sheet and capital account of the trustees shall be available at all reasonable times for inspection by the provost, fellows and scholars of the college and the director for the time being of the National Library or any of them.
(j) In each year a copy of each of the accounts herein before mentioned shall as soon as may be possible be furnished to the commissioners if requested and may be circulated to such other persons as the trustees think fit.
(k) The trustees may at any time appoint or make provision for the appointment of any persons (including the trustees) as a committee for the purpose of discharging any function in connection with the property of the charity or the management of the trust fund or otherwise in relation to the execution of the trusts of this scheme and in such manner and subject to such rules as the trustees may determine.
6. General
(a) Copies of this scheme shall be printed and made available at a reasonable cost to any person interested.
(b) This scheme may be varied or amended from time to time on the application to the High Court by the trustees, the commissioners or the Attorney General.
APPENDIX II Proposals for joint submission by Eastern Health Board & trustees to High Court for purposes of cy-près scheme
(a) To preserve the literary and architectural integrity of this unique bequest, the Worth books will be reunited with the Worth Library and Doctor Steevens’ Hospital and the various portraits re-hung, on permanent loan from the trustees under the supervision of the scheme.
(b) The library of Dublin University will undertake to act under the trustees as de facto curator of the collection and will advise the trustees and the Eastern Health Board on all aspects of the day to day management, use and preservation of the collection.
(c) In consultation with Dublin University Library, the Eastern Health Board shall provide and maintain free of charge the suitably equipped librarian’s room and separate study room for use by accredited scholars, immediately adjoining *209 and having direct access to the Worth Library.
(d) The trustees in consultation with Dublin University Library shall appoint a librarian to the Worth Library. The incumbent may be a senior member of the library staff of Dublin University carrying out the function of Worth Library librarian as part of his or her normal duties at Dublin University Library. The terms of reference, hours of attendance, and remuneration of the librarian shall be determined by the trustees in consultation with Dublin University Library.
(e) The terms of the Worth bequest shall be altered to permit books from the collection to be temporarily removed from the Worth Library for maintenance, restoration or cataloguing by Dublin University Library or for scholarly research or inclusion in an appropriate exhibition mounted in Ireland or overseas upon such terms as to insurance and safe keeping as may from time to time be stipulated by the trustees in consultation with Dublin University Library.
(f) The terms of the Worth bequest shall be altered to permit supervised access by members of the general public to the Worth Library in such manner and in such numbers as the trustees in consultation with Dublin University Library shall from time to time permit; and the Eastern Health Board shall ensure that access to the Worth Library is available at weekends and during holiday periods when the National Museum is open to visitors.
(g) A full electrical infrastructure is already in position and the Eastern Health Board shall commission and install such security devices and smoke and fire alarms as may from time to time be advised by the garda technical division or a reputable firm of security consultants in consultation with Dublin University Library.
(h) All heating, lighting, security, decoration, structural maintenance, cleaning (and insurance) costs, other than cleaning and maintenance of books and portraits (and insurance of the books and portraits) of the library, librarian’s room, research room and all approaches will be borne free of charge to the trustees by the Eastern Health Board.
(i) The Eastern Health Board in its restoration of Dr Steevens’ Hospital has to the greatest degree possible, consistent with the structure and character of the listed building and library complied with the provisions of BS 5454 and has also fully complied with all the requirements of the chief fire officer. However, the Eastern Health Board shall put into effect any further reasonable recommendations of the trustees in consultation with Dublin University as regards the safeguarding of the collection from fire, smoke, water or environmental damage.
(j) The Worth Librarian’s remuneration and the costs of cleaning, maintaining and restoring the books and portraits shall be defrayed out of a fund to be raised by public subscriptions and private sponsorship and for this purpose a support group known as ‘the Friends of Dr Steevens’ Hospital’ has been formed and a company with charitable status to be known as ‘Dr Steevens’ Hospital Historical Centre Ltd’ shall be incorporated.
(k) The court would be asked to appoint, as an additional trustee, the chief executive officer for the time being of the Eastern Health Board or any successor of that board in which the ownership of Dr Steevens’ Hospital may from time to time be vested.
UK Cases Cy Pres
CD (a minor)
[2004] EWHC Ch 1036, Chancery Division
Facts: The powers of maintenance and advancement having been exhausted, an application was made to extend the power of advancement by varying the benefi cial interests under the trust under the Variation of Trusts Act 1958.
Held: The application succeeded.
LLOYD J: … by virtue of proviso (a) to section 32(1), no more than half of the presumptive or vested share or interest of the beneficiary may be paid or applied by way of advancement. That limit is com monly relaxed in modern trust deeds, but there is nothing to that effect in the documents in the present case.
On the evidence I am satisfied that it would be for C’s benefit for the limit imposed by section 32 on the application of the capital of the fund for her education to be lifted. The question is whether and on what basis the court has power to achieve this result. There are two possible sources of jurisdiction. The Court of Chancery had an ancient jurisdiction to authorise the application of income and, in more limited circumstances, capital, for the maintenance of a minor even if this was not authorised by the terms of the trust. This jurisdiction is recognised in the speeches inChapman v. Chapman (1954] AC 429: see in particular Lord Morton of Henryton at pages 455-6 and Lord Asquith of Bishopstone at 469. As to the application of capital, Lewin on Trusts, 17th ed., refers to a number of cases at paragraph 32-06. One of them, in which specific reference was made to the court’s ability to authorise the expend iture of capital to which a minor was absolutely entitled for his or her maintenance, is Worthington v.
M’Craer (1856) 23 Beav 81. It seems to me that this would be a possible basis on which the court could proceed in the present circumstances.
However, since the decision in Chapman v. Chapmon, the relevant area of law has been transformed by the Variation of Trusts Act 1958. While this Act does not take away any jurisdiction that the court already had, it seems to me that it would be more appropriate to proceed under the Act if that is pos sible.
The 1958 Act applies “where property … is held on trusts arising …under any will settlement or other disposition”. On the face of it, the proceeds of the insurance policies are held on trusts arising under a settlement, albeit that they are held for the three children in equal shares absolutely. The idea of varying a bare trust might perhaps seem a little odd, and but for the beneficiary not being of full legal capacity it is difficult to imagine how the question could arise. Given that lack of capacity, and the con straints on the extent of the statutory provisions which do authorise the trustees to act in certain ways, it does not seem to me so surprising that the Act should apply to property held on a bare trust, at least for a minor. [para. 14.]
A similar point, though in relation to a fund of a very different kind, was argued before Eveleigh J in the Queen’s Bench Division, in Allen v. Distillers Company (Biachemica/s) Ltd [1974) QB 384. That con cerned the funds to be received pursuant to the compromise of the thalidomide litigation, and the desire of many of the parents of children affected to ensure that the sums held for their children should not become their absolute property at the age of 18.The judge held that he did have power to achieve that, but he rejected the argument that he could do so under the 1958 Act. He was shown authority
under the 1958 Act for the proposition that the Act could be used to defer the vesting of property in a beneficiary, if it would be for that person’s benefit to do so.He did not dispute that, but he held that the Act did not apply to the money to be paid pursuant to the compromise. At page 394 he said this:
“I do not think that the payment out to the trustees in the first instance gives rise to the kind of trust contemplated by the Act. As a common lawyer struggling with this problem I am reminded of the first sentence in the chapter on trusts contained inSnell’s Principles of Equity 25th edition: ‘No one has yet succeeded in giving an entirely satisfactory definition of a trust’. An agent may hold and deal with property of his principal in such circumstances as to constitute him a trustee for his principal but leaving aside the manner in which the trust is created, no one would con template the possibility of there being a trust of the kind referred to in the Act. The Act contem plates the situation where a beneficial interest is created which did not previously exist and probably one which is related to at least one other beneficial interest. Moreover the Act is designed to deal with the situation where the original disposition was intended to endure according to its terms but which in the light of changed attitudes and circumstances it is fair and reasonable to vary. In any event I do not think that the so-called variation would be a variation at all. It would be a new trust made on behalf of an absolute owner.”
Eveleigh J was not considering the sort of case of absolute entitlement with which I am concerned. In the case before him there was no prior trust of any kind. Despite the potential width of the word “dis position”, it would be difficult to conclude that money paid by an alleged tortfeasor by way of compen sation for injury to a minor was “property. . held on trusts arising … under any will settlement or other disposition”. Accordingly I would not venture to disagree with his conclusion that the 1958 Act did not apply to the fund that he was concerned with. [para. 16.]
His observation that the Act is concerned with a trust where there is more than one beneficial inter est was not necessary to his decision. If it were right the Act could not apply to C’s Fund, at any rate once it is split off from the rest of the fund. In my judgment it is not correct. Whether it could be appro priate in any circumstances to exercise the power conferred by the 1958 Act in relation to a fund held for a minor absolutely so as to reduce his or her entitlement in any respect, for example as was sought in the Allen case by deferring the date when the person in question can call for the fund, I do not need to decide. What is proposed in the present case would have the effect, in a sense, of accelerating the benefit for C, by allowing the whole of the fund to be used for her benefit while she is still under age. In other circumstances it may be possible to use the power under section 32 in such a way that the trust property does not become vested in the beneficiary: see Re Pilkington’s Will Trusts [1964] AC 612. On the present and foreseeable facts of this case this is no more than theoretical. It could not be for C’s benefit to divert any part of the fund from her. [para. 17.]
In my judgment both the whole trust fund, and C’s Fund separately, are “property … held on trusts arising … under any will settlement or other disposition”. It is therefore open to the court to exercise the powers conferred by the 1958 Act in relation to the funds, so long as it is satisfied that the proposed variation of the trusts is for the benefit of the relevant beneficiary. I am satisfied that it is for C’s benefit to vary the trusts applying to her fund so that the whole fund, not merely one half,may be applied pur suant to section 32 of the Trustee Act 1925. I have therefore approved on her behalf a variation of the trusts applying to C’s Fund so as to permit the powers under section 32 to be exercised in relation to the whole, not only half, of the fund. [para. 18.]
Re Pilkington’s WT
[1964] AC 612
VISCOUNT RADCLIFFE (on the question of benefit): I think, with all respect to the Commissioners, a good deal of their argument is infected with some of this confusion. To say, for instance, that there can not be a valid exercise of a power of advancement that results in a deferment of the vesting of the bene ficiary’s absolute title (Miss Penelope, it will be remembered, is to take at 30 under the proposed settlement instead of at 21 under the will) is in my opinion to play upon words. The element of antici pation consists in the raising of money for her now before she has any right to receive anything under the existing trusts: the advancement consists in the application of that money to form a trust fund, the provisions of which are thought to be for her benefit. I have not forgotten, of course, the references to powers of advancement which are found in such cases as Re Joicey [1915] 2 Ch 115, CA, Re May’s Settlement [1926] Ch 136 and Re Mewburn’s Settlement [1934] Ch 112, to which our attention was called, or the answer supplied by Cotton U in Re Aldridge (1886) 55 LT 554, 556 to his own question ‘What is advancement?’
It is a payment to persons who are presumably entitled to, or have a vested or contingent inter est in, an estate or a legacy, before the time fixed by the will for their obtaining the absolute interest in a portion or the whole of that to which they would be entitled;
but I think that it will be apparent from what I have already said that the description that he gave (it can not be a definition) is confined entirely to the aspect of anticipation or acceleration which renders the money available and not to any description or limitation of the purposes for which it can then be applied.
I have not been able to find in the words of s. 32, to which I have now referred, anything which in
terms or by implication restricts the width of the manner or purpose of advancement. It is true that, if this settlement is made, Miss Penelope’s children, who are not objects of the power, are given a pos sible interest in the event of her dying under 30 leaving surviving issue. But if the disposition itself, by which I mean the whole provision made, is for her benefit, it is no objection to the exercise of the power that other persons benefit incidentally as a result of the exercise. Thus a man’s creditorsmay in certain cases get the most immediate advantage from an advancement made for the purpose of paying them off, as in Lowther v Bentinck (1874) LR 19 Eq 166; and a power to raise money for the advancement of a wife may cover a payment made direct to her husband in order to set him up in business (Re Kershaw’s Trusts (1868) LR 6 EQ 322). The exercise will not be bad therefore on this ground.
Stephenson (Inspector of Taxes) v Barclays Bank Trust Co. Ltd
[1975] 1 WLR 882
WALTON J: I now turn to a consideration of the phrase ‘absolutely entitled as against the trustee’, which is now of course fairly closely defined in the Finance Act 1969, sch. 19, para. 9. It is there defined as meaning that the person concerned-
has the exclusive right, subject only to satisfying any outstanding charge, lien or other right of the trustees to resort to the asset for payment of duty, taxes, costs or other outgoings, to direct how that asset should be dealt with.
Now it is trite law that the persons who between them hold the entirety of the beneficial interests in any particular trust fund are as a body entitled to direct the trustees how that trust fund is to be dealt with, and this is obviously the legal territory from which that definition derives. However, in view of the argu ments advanced to me by counsel for the respondents, and more particularly that advanced by him on the basis of the decision ofVaisey Jin Re Brockbank [1948] Ch 206 [above], I think it may be desirable to state what I conceive to be certain elementary principles. (1) In a case where the persons who between them hold the entirety of the beneficial interest in any particular trust fund are all sui juris and acting together (‘the beneficial interest holders’), they are entitled to direct the trustees how the trust fund may be dealt with. (2) This does not mean, however, that they can at one and the same time override the pre-existing trusts and keep them in existence. Thus, in Re Brockbank itself the beneficial interest holders were entitled to override the pre-existing trusts by, for example, directing the trustees to trans fer the trust fund to X and Y, whether X and Y were the trustees of some other trust or not, but they were not entitled to direct the existing trustees to appoint their own nominee as a new trustee of the exist ing trust. By so doing they would be pursuing inconsistent rights. (3) Nor, I think, are the beneficial inter est holders entitled to direct the trustees as to the particular investment they should make of the trust fund. I think this follows for the same reason as the above. Moreover, it appears to me that once the beneficial interest holders have determined to end the trust they are not entitled, unless by agreement, to the further services of the trustees. Those trustees can of course be compelled to hand over the entire trust assets to any person or persons selected by the beneficiaries against a proper discharge, but they cannot be compelled, unless they are in fact willing to comply with the directions, to do any thing else with the trust fund which they are not infact willing to do. (4) Of course, the rights of the bene ficial interest holders are always subject to the right of the trustees to be fully protected against such matters as duty, taxes, costs or other outgoings; for example, the rent under a lease which the trustees
have properly accepted as part of the trust property.
Chapman v Chapman
[1954] AC 429
LORD SIMONDS LC: My Lords, this appeal raises questions of considerable importance and for that rea son, though I have had the privilege of reading the opinion which my noble and learned friend, Lord Morton of Henryton, is about to deliver and agree with it in its reasoning and conclusions, I think it desir able to make some observations upon the main argument of the appellants. By way of preliminary explanation, it is only necessary to say that your Lordships are invited to hold that a judge of the Chancery Division of the High Court of Justice has an inherent jurisdiction in the execution of the trusts of a settlement to sanction on behalf of infant beneficiaries and unborn persons a rearrangement of the trusts of that settlement for no other purpose than to secure an adventitiousbenefit which may be and, in the present case, is, that estate duty, payable in a certain event as things now stand, will, in conse quence of the rearrangement, not be payable in respect of the trust funds.
My Lords, I am unable to accept as accurate this view of the origin, development and scope of the jurisdiction of the Court of Chancery. I do not propose to embark on the arduous task of tracing to its sources this peculiar jurisdiction. Many volumes have been devoted to it and I have refreshed my mem ory by reference to some of them. Nowhere can I find any statement which would support the broad proposition for which the appellants contend. Moreover, the law reports contain many cases in which the scope of the jurisdiction has been discussed, every one of them a work of supererogation if its scope was unlimited.
In my opinion, the true view that emerges from a consideration of this jurisdiction through the cen
turies is not that at some unknown date it appeared full-fledged and that from time to time timid judges have pulled out some of its feathers, but rather that it has been a creature of gradual growth, though with many setbacks, and that the range of its authority can only be determined by seeing what juris diction the great equity judges of the past assumed and how they justified that assumption. It is, in effect, in his way that the majority of the Court Appeal in the present case have approached the prob lem and, in my opinion, it is the right way.It may well be that the result is not logical,and it may be asked why, if the jurisdiction of the court extended to this thing, it did not extend to that also. But, my Lords, that question is as vain in the sphere of jurisdiction as it is in the sphere of substantive law. We are as lit tle justified in saying that a court has a certain jurisdiction, merely because we think it ought to have it, as we should be in declaring that the substantive law is something different from what it has always been declared to be merely,because we thinkit ought to be so.It is even possible that we are not wiser than our ancestors. It is for the legislature, which does not rest under that disability, to determine whether there should be a change in the law and what that change should be.
…There is no doubt the Chancellor (whether by virtue of the paternal power or in the execution of a trust, it matters not) had and exercised the jurisdiction to change the nature of an infant’s property from real to personal estate and vice versa, though this jurisdiction was generally so exercised as to preserve the rights of testamentary disposition and of succession. Equally, there is no doubt that from an early date the court assumed the power, sometimes for that purposes ignoring the direction of a settler, to provide maintenance, for an infant, and, rarely, for an adult, beneficiary. So, too, the court had power in the administration of trust property to direct that by way of salvage some transaction unauthorized by the trust instrument should be carried out. Nothing is more significant than the repeated assertions by the court that mere expediency was not enough to found the jurisdiction. Lastly, and I can find no other than these four categories, the court had power to sanction a compromise by an infant in a suit to which that infant was a party by next friend or guardian and litem. This jurisdiction, it may be noted, is exercisable alike in the Queen’s Bench Division and the Chancery Division and whether or not the court is in course of executing a trust.
This brings me to the question which alone presents any difficulty in this case. It is whether this
fourth category, which I may call the compromise category, should be extended to cover cases in which there is no real dispute as to rights and, therefore, no compromise, but it is sought by way of bar gain between the beneficiaries to rearrange the beneficial interests under the trust instrument and to bind infants and unborn persons to the bargain by order of the court.
My Lords, I find myself faced at once with a difficulty which I do not see my way to overcome. For though I am not as a rule impressed by an argument about the difficulty of drawing the line since I remember the answer of a great judge that, though he knew not when day ended and night began, he knew that midday was day and midnight was night, yet in the present case it appears to me that to accept this extension in any degree is to concede exactly what has been denied. It is the function of the court to execute a trust, to see that the trustees do their duty and to protect them if they do it, to direct them if they are in doubt and, if they do wrong, to penalize them. It is not the function of the court to alter a trust because alteration is thought to be advantageous to an infant beneficiary. It was, I thought, significant that counsel was driven to the admission that since the benefit of the infant was the test, the court had the power, though in its discretion it might not use it, to override the wishes of a living and expostulating settler, if it assumed to know better than he what was beneficial for the infant. This would appear to me a strange way for a court of conscience to execute a trust. If, then, the court had not, as I hold it has not, power to alter or rearrange the trusts of a trust instrument, except within the limits which I have defined, I am unable to see how that jurisdiction can be conferred by pleading that the alteration is but a little one.
Knocker v Youle
[1986] 1 WLR 934,
WARNER J: What is said by counsel on behalf of the plaintiffs, and is supported by counsel for Mrs YouIe’s children, is that I have power under s. 1(1) (b) of the Variation of Trusts Act 1958 to approve the arrangement on behalf of the cousins.
There are two difficulties. First, it is not strictly accurate to describe the cousins as persons ‘who may become entitled …to an interest under the trusts’. There is no doubt of course that they are members of a ‘specified class’. Each of them is, however, entitled now to ar, interest under the trusts, albeit a con tigent one (in the case of those who are under 21, a doubly contigent one) and albeit also that it is an interest that is defeasible on the exercise of the general testamentary powers of appointment vested in Mrs Youle and Mr Knocker. None the less, it is properly described in legal language as an interest, and it seems to me plain that in this Act the word ‘interest’ is used in its technical, legal sense. Otherwise, the words ‘whether vested or contingent’ in para. (a) of s. 1(1) would be out of place.
What counsel invited me to do was in effect to interpret the word ‘interest’ ins. 1(1) loosely, as a lay man might, so as not to include an interest that was remote. I was referred to two authorities: Re Moncrieff’s Settlement Trusts [1962] 3 All ER 838, [1962] 1 WLR 1344 and the earlier case of Re Suffert’s Settlement, Suffertv Martyn-Linnington [1960]3 All ER 561, [1961] Ch 1.Inboth those cases, however, the class in question was a class of prospective next of kin, and, of course it is trite law that the prospective or presumptive next of kin of a living person do not have an interest. They have only a spes successionis, a hope of succeeding, and quite certainly they are the typical category of persons who fall withins. 1(1)(b). Another familiar example of a person falling within that provision is a potential future spouse. It seems to me, however, that a person who has an actual interest directly conferred on him or her by a settlement, albeit a remote interest, cannot properly be described as one who ‘may become’ entitled to an interest.
The second difficulty (if one could think of a way of overcoming the first) is that there are, as I indi cated earlier, 17 cousins who, if the failure or determination of the earlier trusts declared by the settle ment had occurred at the date of the application to the court, would have been members of the specified class, in that they were then living and over 21. Therefore, they are prima facie excluded from
s. 1(1)(b) by what has been conveniently called the proviso to it, that is to say the part beginning ‘so however that this paragraph shall not include … ‘ They are in the same boat, if I may express it in that way, as the first cousins in Re Suffert’s Settlement and the adopted son in Re Moncrieff’s Settlement Trusts.The court cannot approve the arrangement on their behalf; only they themselves can do so.
Counsel for the plaintiffs suggested that I could distinguish Re Suffert’s Settlement and Re Moncreieff’s Settlement Trusts in that respect for two reasons.
First,he suggested that the proviso applied only if there was a single event on the happening of which one could ascertain the class. Here, he said, both Mr Knocker and Mrs Youle must die without exercising their general testamentary powers of appointment to the full before any of the cousins could take any thing. But it seems to me that what the proviso is referring to is the event on which the class becomes ascertainable, and that that is a single event. It is, in this case, the death of the survivor of Mrs Youle and Mr Knocker, neither of them having exercised the power to the full; in the words of cl 7 of the settlement, it is ‘the failure or determination of the trusts hereinbefore declared concerning the trust fund.’
The second reason suggested by counsel for the plaintiffs why I should distinguish the earlier author ities was that the event hypothesised in the proviso was the death of the survivor of Mr Knocker and Mrs Youle on the date when the originating summonses were issued, that is to say on 6 January 1984. There is evidence that on that day there were in existence wills of both of them exercising their testa mentary powers to the full. The difficulty about that is that the proviso does not say’…so however that this paragraph shall not include any person who would have become entitled if the said event had hap pened at the date of the application to the court’. It says:
… so however that this paragraph shall not include any person who would be of that descrip tion, or a member of that class, as the case may be, if the said date had fallen or the said event had happened at the date of the application to the court.
So the proviso is designed to identify the presumptive members of the class at the date of the applica tion to the court and does not advert to the question whether at that date they would or would not have become entitled.
I was reminded by counsel of the principle that one must construe Acts of Parliament having regard
to their purpose, and it was suggested that the purpose here was to exclude the need to join as parties to applications under the Variation of Trusts Act 1958 people whose interests were remote. In my view, however, that principle does not enable me to take the sort of liberty with the language of this statute that I was invited to take. It is noteworthy that remoteness does not seem to be the test if one thinks in terms of presumptive statutory next of kin. The healthy issue of an elderly widow who is on her deathbed, and who has not made a will, have an expectation of succeeding to her estate; that could hardly be described as remote. Yet they are a category of persons on whose behalf the court could, subject of course to the proviso, approve an arrangement under this Act. On the other hand, people in the position of the cousins in this case have an interest that is extremely remote. None the less, it is an interest, and the distinction between an expectation and an interest is one which I do not think that I am entitled to blur. So, with regret, having regard to the particular circumstances of this case, I have to say that I do not think that I have jurisdiction to approve these arrangements on behalf of the cousins.
Re Robinson’s ST
[1976] 1 WLR 806,
TEMPLEMAN J: This is an application under the Variation of Trusts Act 1958 which involves the division of a trust fund between life tenant and remaindermen. One of the remaindermen is an infant of about 17. Under what might be termed the old-fashioned calculations for estate duty, such a division was com paratively simple. The rates of estate duty were such that the amount which a remainderman stood to inherit if nothing was done was usually very small. In most schemes it was possible to make a division whereby the remainderman took more in any event than he would otherwise take on the death of the
life tenant.
Into that simple form of division complications were introduced by the abolition of estate duty and its replacement by capital transfer tax. Evidence in these proceedings demonstrates that the old cal culations simply do not fit the new tax. For example, whereas in the old days a tax was payable on death and so all one had to do was to find out what would be left on death after deduction of estate duty, now capital transfer tax is payable on the coming into operation of the division effected by the arrangement.
For that and for other reasons it is very difficult to provide for every possible contingency. The impact of the tax has also this quirk, that the actuarial value of the interest of the life tenant is much reduced. In the present instance figures have been produced which show, for example, that if nothing is done and capital transfer tax is paid on the death of the life tenant, the share of the infant will be somewhere between £58,000 and £60,000 if no alterations in the law are made in the meantime. Under the pro posed arrangement, produced as a result of the independent advice of actuaries, the share which the remaindermen get is of a gross value of £58,000, and if capital transfer tax is payable-as to which there is a doubt in the present instance-the tax will reduce the share by something like £11,000 or
£14,000. This entails a serious possibility of a loss accruing to the remaindermen. I was much pressed by all counsel, including counsel for the third defendant, with the observations of Stamp J in Re Cohen’s Settlement Trusts [1965] 3 All ER 139 at 144, [1965] 1 WLR 1229 at 1236 and of Danckwerts J in Re Cohen’s Will Trusts [1959] 3 All ER 523, [1959] 1 WLR 865 to the effect that a reasonable view of a bar gain must be taken. It is not necessary to insist that in all possible circumstances the infant is bound to benefit. It is said that capital transfer tax may not be payable and, if it is, then even taking into account the possible shortfall of £14,000, there will be acceleration of the income of the share which the infant is to take, and her mother, the life tenant, is only about 55 years old, and so, in the normal course of events, acceleration will catch up with the shortfall.
Acceleration of income, at present rates of taxation on income, will take a good deal of catching up to compensate for a shortfall of £14,000. I cannot assume that the life tenant will live long enough to procure that the arrangement viewed as a whole will benefit the infant. I must be satisfied that the arrangement is beneficial.
I expressed doubts and sent the parties away to consider insurance. In the old days of estate duty insurance could be effected by the life tenant to make good any shortfall so far as the reversion was concerned. Capital transfer tax introduces a new complication in that an insurance policy effected and kept up by the life tenant may itself be liable to capital transfer tax with disastrous consequences.
Therefore, although it is slightly anomalous, if the infant is to be protected against the possibility of shortfall, that protection can only be, to some extent, at the expense of the infant in that a policy must be kept up out of income.
I am quite satisfied that it would not be sensible to leave matters entirely as they are. There are other people interested besides the infant, and to preserve the present trusts with present, and future, rates of income and capital taxation does not seem sensible. I am satisfied that the life tenant will only receive under the arrangement a reasonable and fair proportion having regard to the value of her life interest in her present situation.
In these circumstances I think I can accept the arrangement,provided that the infant’s income is to a certain extent made available for insurance in order to protect the infant’s own share against loss caused by the premature death of the life tenant. A quotation has been obtained, and it would appear that to insure a shortfall of £14,000 would cost about £800 a year. Having regard to the amount of the income that seems to me to be weighing too much on the future and not enough on the present. A pol icy for £8,000, which with profits will yield something over £11,000 in ten years and more thereafter, will only cost about £400 a year. That will still leave a substantial income for the infant to receive straight away.
It seems to me if insurance of £8,000 with profits is effected, I can, relying on the observations of Stamp [1965] 3 All ER 139 at 144, [1965] 1 WLR 1229 at 1236 and Danckwerts JJ [1959] 3 All ER 523, [1959] 1 WLR 865, approve this arrangement, although I still think it is a borderline case. Great powers of advocacy were used to persuade me that capital transfer tax has made such a change that the pos sible result of a death must be disregarded, the actuarial division accepted and a risk taken. I do not take that view. I start with the principle that all these schemes should,if possible, prove that an infant is not going to be materially worse off. There are difficulties with capital transfer tax, and borderline cases, and one may then have to take a broad view, but not a galloping, gambling view.
In my judgment, taking a reasonably prudent view, insurance of £8,000 in the present instance will be sufficient, and I am prepared to sanction the arrangement thus amended.
Re Cohen’s ST,Eliot-Cohen v Cohen
[1965] 1 WLR 1229, [1965] 3 All ER 139,
STAMP J: What is proposed is to substitute a fixed date in place of the death of the plaintiff as the date when the persons to take capital are to be ascertained. The fixed date is to be 30 June 1973, and this is a date which the plaintiff is most unlikely to survive. Subject to a qualification which I need not mention, the persons who will take the capital will be the grandchildren of the settlor living on the fixed date and the issue then living of the deceased grandchild, issue taking in the same way as under the settlement. Since the fixed date is likely to be a later date than the actual date of the death of the plaintiff, any infant issue of a grandchild will have a better chance of taking a share of the capital than he has today because his parent is more likely to have died: and when there is the added chance of avoiding a possible and heavy claim for duty, there is no doubt that the proposed variation is for the benefit of each of the infants.
If in fact the plaintiff survives 30 June 1973, some infant may in the event be worse off than he would have been under the settlement as it stands; for an infant child of a grandchild of the settlor who dies on 1 July 1973 would, as matters now stand, take a share in that event, whereas under the variation he would take nothing. Nevertheless, on balance the proposal is largely for his benefit and a good bargain and his chance of taking free from a heavy claim for duty is improved.
I am invited to say that the proposed variation has similar advantages to any person unborn. I do not think that this is so. If I have to consider whether the variation is for the benefit of a person now unborn who comes into existence after 30 June 1973, then I can only answer that question in the negative. The plaintiff may outlive that date and if hedoes, a person born on or after 1July 1973, while the plaintiff was still living, would, as the settlement now stands, thereupon become beneficially interested under the trusts of the settlement; but by the effect of the proposed variation such a person would take nothing.
Clearly, there may be a person now unborn who will come into existence after 30 June 1973, and if I must consider the variation from the point of view of such a person, I cannot approve it on his behalf for the variation deprives him of any chance of taking and in this respect the position is different from that of one on the infants.
Nevertheless what is said is that I do not have to consider the matter from the point of view of an unborn person having the characteristic that he will be born after 30 June 1973, but must regard the unborn persons on whose behalf I am asked to sanction the variation as having no characteristics at all. All unborn persons it is urged would have a greater chance of taking under the varied settlement than under the original settlement because the period during which they must come into existence in order to become potential beneficiaries is under the variation likely to be a longer period. Moreover each unborn person, so the argument runs, would by the effect of the variation obtain a better chance of being born and so taking an interest than he has at present, and this outweighs the disadvantage that he would suffer by the effect of the variation if he came into existence after 30 June 1973, while the plaintiff was still living.It was put by counsel for the trustees that one of the conditions or contingencies which each person unborn must at present satisfy in order to take is that he should be born during the life of the plaintiff and that for this condition or contingency there is to be substituted a condition or contingency likely to be more easy to satisfy, namely, that of being born during a period which is likely to be a longer period.
Now it is of course perfectly true that as a result of this variation there would be a greater chance of there being some person or persons now unborn becoming beneficially interested in the trust fund, but to say that some particular unborn person will, immediately on the variation taking effect, have a bet ter chance of being born within the qualifying period or a better chance of satisfying the necessary con ditions seems to me to involve an excursion into metaphysics, on which I am unwilling to embark. Such a proposition seems to me to involve the logical conclusion that the court must regard one whose body may come into the existence in the future as having nevertheless such a present imaginary existence as to enable the court to ascribe to him a present chance of coming into existence at some specific time or during some specified period. My mind recoils at the idea of the unborn having prior to his birth such an identity as to enable the court to ascribe to him any such chance, or to enable one to say that he can more or less easily satisfy a condition of coming into existence during some particular period.
No doubt the very expression ‘unborn persons’ which appears in the Act of 1958 itself gives colour to the arguments which have been put; but no authority has been cited to show that a still unembodied spirit can be regarded as a person under our law; and I cannot think that the legisla ture used that expression otherwise than in the sense of future persons and to connote those future persons who will, if there is no variation, become interested under the trusts of the instrument which it is sought to vary, and without whose consent the proposed variation may not insome event be binding on him. It cannot be that the court is to approve on behalf of all persons who will come into this world but, in my judgment, only those who do in the event by reason of their birth to such and such a person on such and such a day acquire that legal identity which qualifies them as beneficiaries and the approval which is to be given is in my judgment so to speak an approval nunc pro tune.
Re Holt’s ST
[1969] 1 Ch 100
MEGARRY J: I can deal with the merits of this application quite shortly. It seems to me that, subject to one reservation the arrangement proposed is for the benefit of each of the beneficiaries contemplated by the Variation of Trusts Act 1958, s. 1(1). The financial detriment to the children is that the absolute vesting of their interests will be postponed from age twenty-one to age thirty. As against that, they will obtain very substantial financial benefits, both in the acceleration of their interests in a moiety of the trust fund and in the savings of estate duty to be expected in a case such as this. Where the advantages of the scheme are overwhelming, any detailed evaluation, or ‘balance sheet’ of advantages and disad vantages, seems to me to be unnecessary; but I can imagine cases under the Act where it may be important that an attempt should be made to put in evidence a detailed evaluation of the financial and other consequences of the changes proposed to be made, so that it may be seen whether on balance there is a sufficient advantage to satisfy the proviso to s. 1(1) of the Act of 1958. But this is not such a case, and I say no more about it. I should, however, state that I fully concur in the view taken by Mrs Wilson that, speaking in general terms, it is most important that young children ‘should be reasonably advanced in a career and settled in life before they are in receipt of an income sufficient to make them independent of the need to work’. The word ‘benefit’ in the proviso to s.1(1) of the Act of 1958 is, I think, plainly not confined to financial benefit, but may extend to moral or social benefit, as is shown by Re Towler’s Settlement Trusts [1964) Ch 158.
The point that at one stage troubled me concerns the unborn issue. Counsel for the trustees, as in duty bound, put before me a contention that it was possible to conceive of an unborn infant who would be so circumstanced that the proposed rearrangement would be entirely to his disadvantage.He pos tulated the case of a child born to Mrs Wilson next year, and of Mrs Wilson dying inchildbirth, or shortly after the child’s birth. In such a case, he said the benefit of the acceleration of interest resulting from Mrs Wilson surrendering the moiety of her life interest would be minimal, and there would be no saving of estate duty. All that would happen in regard to such an infant would be that the vesting of his inter est would be postponed from age twenty-one to age thirty, and the only possible advantage in that would be the non-financial moral or social advantage to which I have just referred. In support of this contention he referred me to the decision of Stamp J in Re Cohen’s Settlement Trusts. There, the scheme originally proposed was not approved by the court because there was a possibility of there being a beneficiary who would get no advantage whatsoever from the proposed arrangement; it would merely be to his detriment.
Counsel for the plaintiff, however, points out that there is an essential distinction between that case and this; for there, whatever the surrounding circumstances, the unborn person contemplated could not benefit from the arrangement. In the present case, he says, all that counsel for the trustees has done is to put forward the case of an infant who might be born next year; and it would be a result of the surrounding circumstances, and not of the time of birth or the characteristics of the infant, that that infant might derive no benefit from the arrangement proposed. Counsel for the plaintiff referred me to Re Cohen’s Will Trusts [1959] 3 All ER 523, where Danckwerts J held that in exercising the jurisdiction under the Act of 1958 the court must, on behalf of those persons for whom it was approving the arrangement, take the sort of risk which an adult would be prepared to take. Accordingly, says counsel for the plaintiff, counsel for the trustee’s special infant to be born next year was in the position that although there was the chance that its mother would die immediately afterwards, there was also the alternative chance that its mother would survive his birth for a substantial period of time. In the latter event, which was the more probable, the advantages of the arrangement would accrue to the infant. In short, he distinguished the decision of Stamp J in Re Cohen’s Settlement Trusts on the footing that that was the case of an unborn person whose prospects were hopeless, whatever the events, whereas in the present case the hypothetical unborn person has the normal prospects of events occurring which will either improve or not improve his position. Such an unborn person falls, he says, into the category of unborn persons on whose behalf the court should be prepared to take a risk if the arrangement appears on the whole to be for their benefit.
It seems to me that this is a proper distinction to make, and I accept it. Accordingly, I hold that the arrangement is for the benefit of the classes of persons specified in s. 1(1) of the Act of 1958, and I approve it.
Re Ball’s ST
[1968] 1 WLR 899
MEGARRY J: The second point in this case concerns the jurisdiction of the court. The originating sum mons asks for the approval of the court of an arrangement ‘revoking the trusts of the above-mentioned settlement and resettling the subject matter of the above-mentioned settlement’. Whats. 1(1) of the Act of 1958 authorises the court to approve is
any arrangement … varying or revoking all or any of the trusts, or enlarging the powers of the trustees of managing or administering any of the property subject to the trusts.
The word ‘resettling’ or its equivalent nowhere appears. Accordingly, while there is plainly jurisdiction to approve the arrangement insofar as it revokes the trusts, in my view there is equally plainly no juris diction to approve the arrangement as regards ‘resettling’ the property, at any rate eo nomine. In this connexion, I bear in mind the words of Wilberforce J in Re Towler’s Settlement Trusts. He there said [ [1964] Ch 158 at p. 162):
..Ihave no desire to cut down the very useful jurisdiction which this Act has conferred on the co1;rt, but I am satisfied that the proposal as originally made to me falls outside it. Though pre sented as ‘a variation’ it is in truth a complete new re-settlement. The former trust funds were to be got in from the former trustee and held on totally new trusts such as might be made by an absolute owner of the funds. I do not think that the court can approve this.
It seems to me that the originating summons correctly describes what is sought to be done in this case, and as so described there is clearly no jurisdiction for the court to approve the arrangement. But it does not follow that merely because an arrangement can correctly be described as effecting a revocation and resettlement, it cannot also be correctly described as effecting a variation of the trusts. The ques tion then is whether the arrangement in this case can be so described. In the course of argument I indi cated that it seemed desirable for the summons to be amended by substituting the word ‘varying’ for the word ‘revoking’ and deleting the reference to ‘resettling’, and that I would give leave for this amend ment to be made. On the summons as so amended the question is thus whether the arrangement can fairly be said to be covered by the word ‘varying’ so that the court has power to approve it.
There was some discussion of the ambit of this word inRe Holt’s Settlement [1968] 1 All ER 470.It was there held that if in substance the new trusts were recognisable as the former trusts, though with vari ations, the change was comprehended within the word ‘varying’, even if it had been achieved by a process of revocation and new declaration. In that case, the new trusts were plainly recognisable as the old trusts with variations.In the present case, the new trusts are very different from the old All that
remains of the old trusts are what I may call the general drift or purport, namely that a moiety of the trust fund is to be held on certain trusts for each son and certain of hisissue.Is the word ‘varying’ wide enough to embrace so categorical a change?
If an arrangement changes the whole substratum of the trust, then it may well be that it cannot be regarded merely as varying that trust. But if an arrangement, while leaving the substratum, effectuates the purpose of the original trust by other means, it may still be possible to regard that arrangement as merely varying the original trusts, even though the means employed are wholly different and even though the form is completely changed.
I am, of course, well aware that this view carries me a good deal farther than I went in Re Holt. I have felt some hesitation in the matter, but on the whole I consider that this is a proper step to take. The juris diction of the Act of 1958 is beneficial and, in my judgment, the court should construe it widely and not be astute to confine its beneficent operation. I must remember that in essence the court is merely con tributing on behalf of infants and unborn and unascertained persons the binding assents to the arrangement which they, unlike an adult beneficiary, cannot give. So far as is proper, the power of the court to give that assent should be assimilated to the wide powers which the ascertained adults have. In this case, it seems to me that the substratum of the original trusts remains In the events which
are likely to occur, the differences between the old provisions and the new may, I think, fairly be said to lie in detail rather than in substance. Accordingly, in my judgment, the arrangement here proposed, with the various revisions to it made in the course of argument, can properly be described as varying the trusts of the settlement. Subject to the summons being duly amended, I therefore approve the revised arrangement. I may add that since the hearing of this case I have considered the speeches of their lordships in Re Holmden’s Settlement Trusts, /RC v Ho/mden [1968] 1 All ER 148, but although these suggest certain questions of interest and difficulty, I find in them nothing to make me resile from the views that I have expressed.