United Kingdom House of Lords Decisions

LORD ATKIN. The question which arises in this case is whether there was or was not a valid gift by the will of the testatrix, which was made on August 16, 1933. After giving certain legacies, she made the following residuary gifts: she directed that her trustees were "to stand possessed of the residue upon trust in equal shares for St. Clement's Mission, Notting Dale (of which my uncle Edmund Waller was founder and which he and I have supported) for their mission work, the Society for the Propagation of the Gospel in Foreign Parts, the Vicar and Churchwardens of St. Columba's Church, Hoxton (for parish work), and the Vicar and Churchwardens of St. Cuthbert's Church, Philbeach Gardens, Kensington (for parish work)." The question is whether the last two gifts are valid, or whether they are not too vague as going beyond what is within the meaning of the law a charitable gift. If they go beyond the legal definition of a charitable gift, they are too vague. The principle has been expressed, perhaps as well as it could be expressed, by Lord Macnaghten in delivering the judgment of the Privy Council in Dunne v. Byrne.⁽¹⁾ In that case the gift was expressed in these words: "I will and bequeath .... that the residue of my estate should be handed to the Roman

(1)     [1912] A C 407.


Catholic Archbishop of Brisbane and his successors to be used and expended wholly or in part as such Archbishop may judge most conducive to the good of religion in this diocese," and it was held that that was not a good charitable bequest and was void. I do not quote the case at all because of the terms of that bequest, but because of what was said in the judgment⁽¹⁾: "The language of the bequest (to use Lord Langdale's words) would be 'open to such latitude of construction as to raise no trust which a Court of Equity could carry into execution,'" and for that, Lord Macnaghten quotes the case of Baker v. Sutton.⁽²⁾ Lord Macnaghten continues: "If the property, as Sir William Grant said in James v. Allen⁽³⁾ 'might consistently with the will be applied to other than strictly charitable purposes, the trust is too indefinite for the Court to execute.'"

The question is, what is the meaning of the words "the Vicar and Churchwardens of St. Columba's Church, Hoxton (for parish work)"? Mr. Vaisey, in the course of a forcible argument on behalf of the appellants, said that that is just equivalent to a gift to the vicar and churchwardens of St. Columba's Church, Hoxton - it is in fact in Haggerston, but we need not trouble about that - and he says that that would mean a gift to the vicar and churchwardens for the purpose of their spiritual duties as vicar and churchwardens, and that it would be a good charitable bequest - and that is perfectly true - if there were no words added. Then he says that the words "(for parish work)" simply mean to express what would be implicit in the words "the Vicar and Churchwardens" without the addition of those words in brackets; and, if so, he says, there is nothing to prevent this gift from being a charitable gift; or, he says, the words limit their duties in some particular respect which I do not think he found it very easy to define, and which, if he finds it difficult, I find it still more difficult to define; but in some sense or other he says that the words limit what would be ordinarily understood if you had a gift to the vicar and churchwardens simply.

(1)     [1912] A. C. 411.
(2)     (1836) 1 Keen, 224, 233.
(3)     (1817) 3 Mer 17.


My Lords, I am entirely unable to accept that construction. I think the words are quite plainly enlarging words. They are words of definition, it is quite true, but I think they were used for the very purpose of defining what the testatrix meant as the purpose for which the money was to be applied, and "parish work" seems to me to be of such vague import as to go far beyond the ordinary meaning of charity, in this case in the sense of being a religious purpose. The expression covers the whole of the ordinary activities of the parish, some of which no doubt fall within the definition of religious purposes, and all of which no doubt are religious from the point of view of the person who is responsible for the spiritual care of the parish in the sense that they are conducive, perhaps, to the moral and spiritual good of his congregation. But that, I think, quite plainly is not enough; and the words are so wide that I am afraid that on no construction can they be brought within the limited meaning of "charitable" as used in the law. I find myself in entire accord with what was said by the Master of the Rolls in the Court of Appeal, in a passage which I will read. "To my mind," he said⁽¹⁾: "the whole question in this case turns on whether or not the words 'for parish work' can in some way be limited, either by their own inherent meaning or by reference to the character and quality of the trustees. I have come to the conclusion, and I do so with regret, that that limitation cannot be imposed upon the words. It seems to me that the words 'for parish work' are of a very wide character and embrace not merely those limited functions in the parish which it is the duty of the vicar to perform, or those limited functions in the parish which it is the duty of the churchwardens to perform; nor can I limit those words by narrowing them down to religious purposes in the strictly charitable sense. It appears to me that, taking them as words of ordinary English, they cover any activity in the parish, any work in the parish which trustees of that character may be expected to perform, whether that work be strictly a religious purpose or strictly a charitable

(1)     [1938] 1 Ch. 495.


purpose, or whether it be a work considered to be conducive to the good of religion, or considered to be benevolent or generally useful to the inhabitants of the parish or the congregation of the church. It seems to me that the words 'for parish work' cannot be cut down or limited, either by construing them in isolation, or by reference to the character of the trustees."

My Lords, it seems to me that that is quite sufficient to dispose of this case. I find myself quite unable to disagree with the views taken by Luxmoore J., by the Master of the Rolls, and by Farwell J. I am sorry not to be able to accept the view taken by Clauson L.J., but I think it would be too narrow a view, upon these words. I share the regret which has been expressed by all the judges in coming to this conclusion.

I think that this case is a warning to those persons who desire to make wills with a benevolent intention, giving legacies for charitable purposes in the broad sense of the word, that they should make it clear that their objects are within the legal definition of charity, and are certain. But the law has been the law now for a very great number of years, and it is quite plain to my mind that words of such general import as these are suggest an uncertainty of purpose which it is quite impossible to bring within the purview of the law of trusts.

I am of opinion, therefore, that this appeal should be dismissed. It is a case which has given rise to judicial doubt, and which I think it was very proper for the persons representing these parishes to bring to a decision in this House. I notice that there was a condition made on giving leave to appeal that there should be no opposition offered to a suggestion that the costs should come out of the two bequests which fail. Of course, we are not bound by that condition, but it appears to me to be one which it would be quite proper to make, and in those circumstances I propose to your Lordships that the appeal should be dismissed, and that the costs should come out of the two funds in question.

LORD RUSSELL OF KILLOWEN. My Lords, I agree. Clauson L.J. found himself able to construe this gift as a gift to the vicar and churchwardens, the purposes for which the money was to be applied being restricted by the words in brackets to the furtherance of work which it was the duty of the vicar and churchwardens to perform; that is to say, that the application of the money was restricted to what I may call the religious purposes of the parish in the strict sense. For myself, I am unable to put so narrow a construction upon the words used by the testatrix. In my opinion, upon the true construction of this will, the words in brackets mean that the gift is not a gift for ecclesiastical or religious purposes in the strict sense, but is a gift for the assistance and furtherance of those various activities connected with the parish church which are to be found, I believe, in every parish, but which, unfortunately for the donees here, include many objects which are not in any way charitable in the legal sense of that word.

I find myself in complete agreement with the judgments delivered by the Master of the Rolls and by Farwell J., and I would accordingly dismiss this appeal, but with the provision as to costs which has been referred to by the noble Lord on the Woolsack.

LORD ROMER. My Lords, I too agree. Notwithstanding the excellent argument which we have heard from Mr. Vaisey, I find myself quite unable to extract from the will or the surrounding circumstances, to which we can refer, any justification for giving to these words "for parish work" any other than their ordinary meaning; and it is, I think, without question that their ordinary meaning includes objects which are not charitable in the legal sense of the term. Great reliance was placed by Mr. Vaisey upon the fact that the trustees who are to administer these two funds are the vicar and the churchwardens of these respective parishes; but I find myself in complete agreement with what was said by Farwell J. in the Court of Appeal in these words⁽¹⁾:

(1)     [1938] Ch. 503.


"It is only, in my judgment, in a case where the trust itself is not specified that the office of the trustees may be considered, in order, if possible, to ascertain the purpose of the trust." In the present case the trust itself is specified quite clearly.

My Lords, I agree with the motion which has been proposed.

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