Die
Mercurii, 21° Junii,
1944
Parliamentary
Archives,
HL/PO/JU/4/3/976
Lord
Chancellor
Lord
Macmillan
Lord
Wright
Lord
Porter
Lord
Simonds
CHICHESTER DIOCESAN FUND AND
BOARD OF
FINANCE (INCORPORATED)
v.
SIMPSON AND
OTHERS
The Lord Chancellor
MY LORDS,
The Will with which we are concerned in this appeal is
one
in which a public-spirited testator has directed his executors
to
apply the very substantial residue of his property " for
such charit-
" able institution or institutions or other
charitable or benevolent
" object or objects in England "
as they should select. The Court
of Appeal (Lord Greene M.R.,
Clauson and Goddard L.JJ.), over-
ruling Farwell J. has decided
that this is not a valid testamentary
disposition.
Alter studying the powerful judgment of the Master of
the Rolls
and weighing the arguments which have been presented to
the
House, I cannot doubt that a gift expressed in the terms which
I
have quoted, in the absence of context to vary its prima
facie
meaning,, is void for uncertainty.
The fundamental principle is that the testator must by
the terms
of his will himself dispose of the property with which
the will
proposes to deal. With one single exception, he cannot by
his will
direct executors or trustees to do the business for him.
That ex-
ception arises when the testator is minded to make gifts
for charit-
able purposes, and where he directs his executors or
trustees, within
such limitations as he chooses to lay down, to
make the selection
of charities to be benefited. This
exception from the general
principle that the testator has to
decide in his will the specific
destination of his property is
allowed because of the special favour
which the English law shows
to charities, and the conception of
what is charitable for such
purposes has been elaborately worked
out so that the courts are
able to determine whether a particular
gift is charitable or not.
But when, as here, the expression is
" charitable or
benevolent", it is impossible to attribute to the
word "
benevolent" an equal precision, or to regard the courts as
able
to decide with accuracy the ambit of that expression. It is
not
disputed that the two words " charitable " and "
benevolent"
do not ordinarily mean the same thing; they
overlap in the sense
that each of them, as a matter of legal
interpretation, covers some
common ground, but also something
which is not covered by the
ather. It appears to me that it
inevitably follows that the phrase
' charitable or benevolent"
occurring in a will must, in its ordinary
:ontext, be regarded as
too vague to give the certainty necessary
before such a provision
can be supported or enforced.
Then, is there any special context in this will which
would
justify a different interpretation ? I have listened with
much sym-
pathy to the efforts to find one, but it does not seem
to me, notwith-
standing the late Mr. Justice Farwell's opinion,
that there is any
context which might give to the impeached phrase
a special mean-
ng. The conjunction " or " may be
sometimes used to join two
vords whose meaning is the same, but,
as the conjunction appears
n this will, it seems to me to indicate
a variation rather than an
dentity between the coupled
conceptions. Its use is analogous in
he present instance to its
use in a phrase like " the House of Lords
' or the House of
Commons ", rather than to its use in a phrase like
' the
House of Lords or the Upper Chamber ".
I regret that we have to arrive at such a conclusion,
but we
lave no right to set at nought an established principle
such as
his in the construction of wills, and I therefore move the
House
to dismiss the appeal.
Lord
Chancellor
Lord
Macmillan
Lord
Wright
Lord
Porter
Lord
Simonds
[2]
CHICHESTER DIOCESAN FUND AND
BOARD OF
FINANCE (INCORPORATED)
v.
SIMPSON AND OTHERS
Lord Macmillan
MY LORDS,
The law, in according the right
to dispose of property mortis
causa by will, is exacting in
its requirement that the testator must
define with precision the
persons or objects he intends to benefit.
This is the condition on
which he is entitled to exclude the order
of succession which the
law otherwise provides. The choice of
beneficiaries must be the
testator's own choice; he cannot leave
the disposal of his estate
to others. The only latitude permitted
is that if he designates
with sufficient precision a class of persons
or objects to be
benefited he may delegate to his trustees the selec-
tion of
individual persons or objects within the denned class. The
class
must not be described in terms so vague and indeterminate
that the
trustees are afforded no effective guidance as to the ambit
of
their power of selection. (See Houston v. Burns [1918],
A.C. 337,
per Viscount Haldane, at pp. 342-3.)
Unfortunately for the efficacy
of their testamentary dispositions,
testators or their advisers,
as the many reported cases show,
frequently fail to observe this
rule and by the language which
they employ leave their trustees at
large in the selection of the
persons or objects to be benefited,
with the result that the bequest
is held void for uncertainty.
Thus a bequest to such public pur-
poses as the testator's
trustees may select is not " within the
" description of
a particular class of individuals or objects " (per
Lord
Davey in Blair v. Duncan [1902], A.C. 37, at p. 44).
Nor
is a bequest in favour of benevolent purposes to be selected
by the
testator's trustees sufficiently specific. (See, e.g.
Attorney-General
for New Zealand v. Brown [1917],
A.C. 393, and Attorney-General
of New Zealand v. New
Zealand Insurance Co., Ltd., 1936, 3 All
Eng. Rep. 888.)
One class of objects, however,
notwithstanding its generality
and comprehensiveness, namely
charitable purposes, has always
been accepted as sufficiently
definite to satisfy the rule, because
of the favour which the law
extends to charity. Most of the cases
which have arisen have been
due to a tendency on the part of
testators to associate with the
word " charitable " other words of
vague import. The
present is one of these. Here the bequest is
in favour of "
such charitable institution or institutions or other
"
charitable or benevolent object or objects in England as my acting
"
executors or executor may in their or his absolute discretion
"
select".
As the law of England stands it
is impossible to sustain this
bequest as valid. The testator has
empowered his executors to
distribute the residue of his estate
inter alia among either charitable
objects or benevolent
objects and has thereby empowered them to
devote the whole
bequest, if they please, to benevolent objects, a
class of objects
which has over and over again been held by the
Courts to be too
uncertain. Alike on authority and on principle
the bequest is
accordingly void.
In construing a will it is
proper to read the instrument as a
whole. By doing so it may
sometimes be found that a testator has
used a word or a phrase in
a sense of his own, different from its
[3] 2
ordinary connotation.
If a testator were to make a
bequest in
favour of benevolent objects, adding " by which I
mean charitable
" objects", the bequest might well be
held to be valid. In the
present instance, however, I cannot find
any context either in the
words of the bequest itself or elsewhere
in the will which would
justify imparting to the testator's use of
the word " benevolent"
any other than its ordinary wide
signification. If the testator had
written "charitable and
benevolent" instead of "charitable or
" benevolent"
the bequest Would, on the authorities, have been
sustained, for it
would then have been read as in favour of such
benevolent objects
as are charitable or such charitable objects as
are benevolent,
charity in either way predominating. But again
I rind no warrant
for reading conjunctively two words which the
testator has
expressly disjoined.
I confess it is somewhat disconcerting to find that the
Court of
Session in Scotland has in a number of instances taken a
different
view in construing words very similar to those now under
con-
sideration by this House. Thus it has been held competent for
a
testator in Scotland to empower his trustees to make a
selection
among " societies or institutions of a benevolent
or charitable
"nature" (Hay's Trustees v.
Baillie, 1908, S.C. 1224); or among
" charities or
benevolent or beneficent institutions" (Paterson’s
Trustees
v. Paterson, 1909, S.C. 485); or among "charitable
or
" philanthropic institutions " (Mackinnon's
Trustees v. Mackinnon,
1909, S.C. 1041). The topic is
very fully discussed in Reid's Trustees
v. Cattanach's
Trustees, 1929, S.C. 727, where the introduction of
"
public institutions " as an alternative was held fatal to the
bequest.
Yet in Scots law the principle that a testator must
himself designate
his beneficiaries and cannot delegate to others
the selection of
beneficiaries from an indefinite class is equally
well established;
and so too is the recognition of charitable
objects as a sufficiently
definite class.
It would be out of place to discuss here the validity of
the pro-
cesses of reasoning by which the Courts in Scotland
reached the
decisions which I have just cited. I may remark that
they seem
to have turned mainly on an interpretation of the
monosyllable
" or ", interposed between the word "
charitable " and the other
words in question, not as
separating distinct and contrasted classes
of objects but rather
as an exegetical link between convertible and
equivalent synonyms.
The fact that in Scotland the term " charit-
" able "
has in law a less rigidly technical and artificial meaning
than in
England may also have had something to do with it. But
I must not
allow myself to be enticed into a further exploration
of what for
the present purpose is a foreign field, however attrac-
tive. This
is an English case, and in my opinion the decision of
the Court of
Appeal is in conformity with the law of England and
should be
affirmed.
3
CHICHESTER DIOCESAN FUND AND
BOARD OF
FINANCE INCORPORATED
[4]
Lord
Chancellor
Lord
Macmillan
Lord
Wright
Lord
Porter
Lord
Simonds
V.
SIMPSON AND OTHERS
Lord Wright
MY LORDS,
The testator in this case after various bequests, left
the residue of
his estate to his executors to apply to "
such charitable institution
" or institutions or other
charitable or benevolent object or objects
" in England "
as in their absolute discretion they should select.
He died in
1936. The will having in due course been
proved the executors
distributed the residue, amounting to over a
quarter of a million
sterling, among some 140 institutions or objects
which could
properly be described as both charitable and
benevolent. But some
time afterwards certain next of kin claimed
that the bequest of
the residue was invalid and that the next of kin
were entitled to
have it. The question, of course, has to be
determined on the
language of the will. There was no suggestion
that the testator
did not mean to leave the residue to charities. The
objection was
that the bequest was invalid because the words " or
"
benevolent" introduced a different category from "
charitable "
which preceded them. It was not questioned that
if the words had
been " charitable and benevolent" the
bequest would have been
perfectly good. That would mean objects
which were both charit-
able and benevolent. The word " or
", it was said, severed " charit-
" able "
from " benevolent", so that two different classes
were
meant, and the executors were thus faced with a choice
between
two different categories, and could have distributed the
residue
among objects which were benevolent but not charitable,
and
that it was beyond the powers of the Court when engaged in
ad-
ministering trusts to apportion the distribution between what
was
charitable and what was benevolent. The bequest, it was
said,
was void for uncertainty. By using " or " instead
of " and " the
testator had fallen into what was called
a trap. The whole bequest
was thus void.
No one would deny that charitable bequests, which
may
be made by general words for objects to be selected by
the
Executors and which are free from certain restrictions such
as the
rule against perpetuities, and have certain immunities
under the
Income Tax Acts, should be scrutinised before their
right to be
classed as charitable is admitted, but it is a
different matter to make
the test depend on anything but matters
of substance. Courts of
Equity have been criticised for their
construction of particular
words of bequest or their limitation
of what bequests are permissible
as charitable. In Bourne v.
Keane, 1919 A.C. 815 the House of
Lords overruled a series
of authorities extending from 1835 and
upheld the validity of a
bequest of personal estate for masses for
the dead. There was no
decision binding the House so as to prevent
them holding as they
did. In the present case the question here
relates to the
construction of the words of the particular will. These
have to
be construed as they occur in their context. The decision
depends
in my opinion on the meaning of the few relevant words.
The
question is whether the words "or other charitable or
"
benevolent object or objects " mean in their setting two
separate
classes, the one class charitable and the other
benevolent, regarded
as distinct or separate, or whether they
mean one class only, that
is, of objects which may be
indifferently described as charitable
or benevolent. There is no
difficulty in the latter construction.
[5] 2
There is no authority binding
this House to exclude it in this
particular case: the two words
run so closely into each other in
meaning and overlap so largely
that it is a natural view: in
addition the preceding sentence
seems to me to confirm this con-
struction simply as a matter of
words. The difficulty arises from
the want of definition which has
always characterised this branch
of law. If, in the case of a
general bequest to charity, so much
depends on the mere word which
is to govern the executor's power
of selection, the least that
could be expected would be a precise
definition of the meaning and
scope of the dominant word, which
is charity. The difficulty in a
case like the present is not quite the
same as the difficulty
which has constantly faced the Court in
deciding whether a
specific purpose named in a bequest is or is
not charitable. That
indeed has led to a host of decisions, often
difficult to
reconcile or explain. Lord Sterndale M.R., dealt with
both aspects
of the difficulty in in re Tetley, 1923, 1 Ch. 258.
The
question there was the meaning of the word patriotic. He
lamented
the absence of " any . principle which will guide
one easily and
" safely through the tangle of cases as to
what is and what is not a
" charitable gift.... The whole
subject is in an artificial atmosphere
" altogether ".
Dr. Allen, the learned author of Law in the Making
(3rd Ed., p.
343) has dwelt upon the same difficulty. I confess I am
convinced
that the time has come when modern minds imbued with
modern ideas
should attempt to achieve a clear, workable and
comprehensive
definition of what is meant by charitable and its
cognate terms,
such as benevolent, philanthropic and the like.
That is a task for
the legislature.
These reflections, however, will not help in deciding
what is the
true construction of this will. But I find to my
regret, that I cannot
approach this question or examine
authorities which seem to me
to throw any light on its decision
until I have attempted to under-
stand from the Reports what "
charitable " and other kindred words
have been taken to mean.
I do not think that I have found
any accepted or satisfactory
definitions. I may start with the Statute
of 43 Eliz. (1601). That
Statute, or more correctly its preamble,
together with analogies
drawn from it, is still even now, it seems,
taken as
authoritative. The preamble will be found conveniently
set out in
section 13 (2) of the Mortmain and Charitable Uses Act,
1888,
which after reciting that in " divers enactments and docu-
"
ments reference is made to charities within the meaning purview
"
and interpretation of the said Act", enacted that references
to
such charities should be construed as references to charities
within
the meaning purview and interpretation of the said
preamble. In
other respects the Act of 1888 repealed the Act of
Elizabeth. That
Act had provided a special proceeding under the
Chancellor for
the reform of deceits and breaches of trust,
touching land given
to charitable uses. It had long become
obsolete, when it was re-
pealed in 1888, subject to the limited
saving of the Preamble quoted
above. That, however, did not
contain any definition of the charities
it referred to: what it
contained was a list of charities so varied
and comprehensive that
it became the practice of the Court of
Chancery to refer to it as
a sort of index or chart. This was observed
by Lord Macnaghten in
Pemsel's case, 1891, A.C. 531, at p. 581.
Charities had
even before 1601 been subject to the equitable juris-
diction of
the Court of Chancery. But the Act of 1601 did not give
a
definition of charities, but merely a collection of instances of
a
somewhat miscellaneous character. The collection included, in
addi-
tion to objects which would ordinarily be considered to be
elee-
mosynary objects, other objects, such as school of learning,
repair
of bridges, ports, havens and churches and other objects of
general
utility. It is difficult to find definitions of charity,
though as Lord
Macnaghten explained (loc. cit.), it has a
legal technical sense in
English Law. But in 1767 Lord Camden
L.C., in Jones v. Williams,
36364 A 3
3 [6]
Amb. 651, defined it as a gift
to a general public use which extends
to the poor as well as the
rich. In Goodman v. Mayor Saltash
7 AC 633, at p.
642, Lord Selborne L.C. said that " a gift subject
"
to a condition or trust for the benefit of the inhabitants of a
parish
" or town or of any particular class of such
inhabitants is (as I
" understand the law) a charitable
trust"; and he cited Wright v.
Hobart, Q Mod.
64, in which Lord Macclesfield established as a
charitable trust
an ancient grant of land for the pasture during three
months of
the year of the cows of as many of the inhabitants of a
certain
village as were able to buy three cows. These inhabitants
might
perhaps have been counted on the fingers of one hand. Not
only by
the original list in the Act of Elizabeth, but by the mass
of
decisions which have been given by the free use of
analogies
extending the original items between that date and the
present, it is
made clear that "charitable trust " in
England is a very comprehen-
sive term, including " purposes
beneficial to the community", which
Lord Macnaghten stated as
the fourth and most general of the
four principal divisions in his
definition of charity in its legal sense.
This division was to
coyer purposes not falling under any of his
other three divisions,
which are trusts for the relief of poverty, trusts
for the
advancement of education, trusts for the advancement of
religion.
That was in Pemsel's case, 1891, A.C. 531, at p. 583.
The
question in the case was whether the word " charity,"
us used in the
Income Tax Acts, bore the same meaning in its
application to Scot-
land as it did when applied in England and
Ireland. The House of
Lords held that it did, even though the
technical meaning of the
word, that is its comprehensive meaning,
which includes educa-
tion or religious or other general
charities, as well as charities for
the relief of the poor, did
not completely prevail in Scotland, but
Lord Macnaghten concluded
that he could not discover any great
dissimilarity between the law
of Scotland and the law of England
with respect to charities. His
definition has been subjected to certain
criticisms, particularly
the fourth division, but shows the extra-
ordinarily wide and
indeterminate range covered by the word
" charity " in
England whenever it is to be construed in its technical
legal
sense. Lindley L. J. after referring to the very wide and
in-
definite sense in which the word " charitable " is
used in Courts of
Equity, adds " Probably not one man in a
thousand understands
" what that sense is, and the sense
itself is a very indefinite one "
(in re Macduff, 1896,
2 Ch. 451, at p. 464). This breadth is con-
firmed by the
decisions upon charities. I shall be content to refer
merely to
two lists of instances; the first is that contained in
Tothill's
Cases in the High Court of Chancery, List 27, which
contains deci-
sions on Charitable Uses between 1598 and 1639; the
second is the
very full collection of decisions up to 1932 as to
what are or are not
charities in Hailsham's Laws of England, Vol.
IV, pp. 107 to 138. The
wide range and variety are bewildering,
and show how generously
the Court has availed itself of the
licence to extend the Act of Eliza-
beth by analogy. But, all the
same, it is impossible not to feel some-
times how difficult
particular decisions are to reconcile with others,
or to
understand why one charity is taken and another left, or not
to
feel that over-subtle or fine distinctions have been drawn.
The
absence of a modern and scientific definition cannot fail to
intro-
duce uncertainty, as the great mass of contested litigation
shows.
But what I am concerned with at the moment is that though
"char-
ity " is a very wide and comprehensive term, as
shown in its partic-
ular applications, distinctions have at times
been drawn between
charitable " as a general term, and other
similar general terms as
occasionally used where there is a
disposition in favour of general
objects. But the Court of
Chancery have adopted "charity" or "cha-
ritable
as a sufficient general description in cases where testators
have
left bequests to such charitable objects as their executors
may
select. This has been held to be a sufficient definition to
enable the
Court to administer the trust. But if a second
description is added
[7] 4
and that second description is used disjunctively, not
conjunctively,
the Court washes its hands of the administration
and holds the en-
tire bequest invalid. The whole gift fails for
uncertainty. There is,
it is said, no general trust for charity
binding the whole fund. The
Court will not disregard the invalid
part of the bequest and ad-
minister the valid. Such is the rule
of the Court. Whether it is a
wise or sensible rule is not here
material to consider. By way of
contrast though the cases are not
quite parallel, it may be noted
that the common law ever since
Pigot's case, 11 Co. Rep. 26 (b),
has held that when
in the same instrument there are both legal and
illegal
conditions, the legal conditions may prima facie be
enforced
whereas the part which is illegal cannot. Courts of
Equity have
been more rigid and have refused to apply anything
like their
cy-pres doctrine to such cases, or to make any
apportionment.
They have most nearly approached an apportionment
in cases like
in re Douglas, 35 Ch. D. 472, but that is
regarded as a special and
different type. Lord Davey discusses
these distinctions in Hunter
v. Attorney General, 1899,
A.C. 309, at p. 324. But the strict rule
only applies if it is
sought to give the executors a real choice
between two separate
objects only one of which is charitable, that
is, if the two
substantives or adjectives are to be read disjunctively.
If they
are to be read conjunctively, then there is only one class
or area
of selection, and if that is charitable, the bequest is good.
Such
a case is illustrated by in re Best, 1904, 2 Ch. 354, where
the
two adjectives "charitable" and " benevolent,"
coupled it is true by
" and ", but " and " and
" or " may be interchangeable, were held
to describe a
single class, the members of which combine the quali-
ties of
charitable and benevolent. This is possible because of the
wide
and vague range of the word charitable and its close kinship
with
benevolent. Whether the words are used in any particular
will as
conjunctive or disjunctive must be a question of construc-
tion of
the particular will. " Benevolent," which is the
other
material term here, is also a word of wide connotation, and
almost
interchangeable with charitable. That the two words overlap
to
a very great extent is clear. Lord Herschel, in Pemsel's
case (supra),
is careful to equate charity and
benevolence even as the words
are popularly used. He sums up, at
p. 572, that " the popular con-
" ception of a
charitable purpose covers the relief of any form of
"
necessity, destitution, or helplessness which excites the
compassion
"or sympathy of men and so appeals to their
benevolence for
relief ". He went on to include in this
conception of charity the
relief of what is often called spiritual
destitution or need, and treats
that as a form of "
benevolent assistance ". In these senses it seems
to me that
the word " benevolence " is used of the spiritual
impulse,
while charity is its embodiment in practice. Lord
Herschell would,
I think, have used the same language in reference
to the purposes,
religious or educational or other purposes
beneficial to the com-
munity, to which Lord Macnaghten referred.
The provision of good
water, or any scheme of social amelioration,
involves benevolent
motives and their practical operation. It may
indeed be that the
benevolent motive is less apparent or in a
sense is non-existent in
such instances as the repair of sea banks
or the furtherance of
scientific research, which would fall
outside the popular idea of
charity. It might thus be said that
some charitable purposes, in the
sense adopted by English law, are
not benevolent, and conversely
that some benevolent acts are not
charitable. Lord Bramwell, dis-
senting in Pemsel's case
(supra), gave as instances of purposes
which he regarded as
benevolent but not charitable in the legal
sense, a fund for
providing oysters at one of the Inns of Court or
a trust to
provide music on the village green. As to the latter,
modern ideas
would be disposed to treat the gift as both benevolent
arid
charitable, as it would a fund for the provision of music in a
London
park: the fund for the oysters I should not be disposed to
regard
as either benevolent or charitable in any ordinary or
36364 A4
5 [8]
technical sense. The leading
case, Morice v, Bishop of Durham,
10 Ves. 522, is relied on
as showing that the word benevolent ,
used by itself or coupled
as it was in that case with "liberal" , is
insufficient
to evince a charitable purpose. Lord Eldon put the
question
whether, according to the ordinary sense, this testatrix
meant by
these words to confine the Defendant to such acts of
charity or
charitable purposes as this Court would have enforced
by decree
and reference to a Master. He decided in the negative
and held
that the intention was too indefinite to create a trust.
There the
words were not bound up with words or a context show-
ing a
charitable intention, but, on the contrary, showed the opposite.
Lord
Eldon said that upon such words the Court could not have
charged
the executor with maladministration if he had applied
the whole to
purposes which, according to the meaning of the
testator, were
benevolent and liberal, though not acts of that species
of
benevolence and liberality which this Court in the construction
of
a will calls charitable acts. Lord Eldon said that there was
no
magic in words, and if the real meaning of the words used had
been
charity or charitable purposes according to its technical use
in
the Court, the appropriate consequences would follow.
This
qualification should be noted.
It may be that the word "
liberal" gave a special colour to the
word " benevolent
", and took its scope outside charitable purposes.
It might,
for instance, have covered the case of the fund for pro-
viding
oysters or other lavish entertainment. But in James v.
Allen,
3 Mer. 17, the bequest was simply for benevolent purposes,
at
the discretion of the trustees. The Master of the Rolls was
of
opinion that the trust might have been applied to other than
strictly
charitable purposes and was too indefinite for the Court
to execute
and failed altogether. This was the decision where
the word
" benevolent" stood by itself without any
context showing or ex-
cluding a charitable intent. But later
cases have shown that the word
" benevolent" is not
fatal to a finding of a charitable trust. It
becomes a question
of the construction of the particular will,
whether its language
sufficiently evinces a charitable trust. As Lord
Cottenham L.C.
said in Ellis v. Selby, i My. & Cr. 286, " the
present,
"like other cases of construction, depends upon the
particular
" language which the testator has used, and very
slight expressions
" may make a most material difference ".
He held in that case
that the expressions " to and for such
charitable or other purposes "
were too wide and held the
bequest void. He said he was following
an earlier decision of his
own, when Master of the Rolls, in Williams
v. Kershaw, 5
Cl. & F. hi, where the residue was to be applied " to
"
and for such benevolent, charitable and religious purposes "
as
the executors should think most advantageous and beneficial.
He
read the three purposes as not conjointly used, but as
describing
three classes, benevolent, or charitable or religious.
The two latter
purposes would also be charitable in the legal
sense, but that was not
the case with benevolent. He held the
disposition too uncertain to
receive effect. It is to be noted
there that he read " and " as " or ",
and as
having the same effect as " or " in the previous case.
In
each of these cases separate categories were held to be
intended;
thus according to the decisions " and " and "
or " were held to b«
interchangeable. That depended on
the context and the lay-out of
the sentences.
In Dolan v. Macdermot,
L.R., 3 Ch. 676, Lord Cairns L.C. held
valid a bequest of
personalty for " such charities and other public
purposes as
lawfully might be " in a named parish. The Lord
Chancellor
said that the reasonable and fair construction of the
will—
remembering always that in construing a will of this kind
"
the Court must not lean to the side of avoiding the will in order
to
" gam money for the family, nor, on the other hand,
strain to
" support the will to gain money for
the charity "—was
[9]
6
that the testator directed his residue " to be paid
out for
" the benefit of the Parish of Tadmartin' in public
charities', using
" the term in the popular sense, and in '
other public purposes'
" ejusdem generis, using those
latter words as supplying and filling
" up a description of
the purposes which, although within the
" Statute of
Elizabeth and the technical doctrine of the Court with
"
regard to charities, are not within the popular meaning of the
"
word ' charities' ". I regard this decision as an object lesson
in
realistic construction. The local limitation does not, of
course, affect
the essential question. (Houston v. Burns,
1918, A.C. 337.) That last-
named case was an appeal from
Scotland, where it was held that
a bequest " for such public,
benevolent or charitable purposes "
was invalid, on the
ground that the three categories were to be read
disjunctively.
This decision was largely determined by considering
the
punctuation. It had been contended that the clause should
not be
read as applying to public or benevolent or charitable pur-
poses,
but that on its true reading it was for the benefit of benevo-
lent
or charitable purposes of a public nature in connection with
the
parish, and that so construed it was good, as benevolent
or
charitable purposes could be held to be charitable purposes.
As
to that contention, Lord Finlay L.C. said: " It appears to
me that
" without the punctuation which appears in the will
as printed in the
"appendix this is quite a possible
construction, and where words are
" ambiguous a construction
should be adopted which will not make
" the bequest void."
Lord Finlay then went on to discuss the punctua-
tion, and on that
ground held that the clause was to be read dis-
junctively. Though
the appeal was from Scotland, the Lord Chan-
cellor states a
general principle which seems often to be lost sight
of, namely,
the principle that the issue depends on the construction
of the
particular will. In addition the word " public "
introduces
a category different in character from either
charitable or benevo-
lent (Blair v. Duncan, 1902, A.C.
37), which makes it much more
difficult in any case to read the
words as dealing with anything but
separate categories. In the
same way this House in A.G. v. National
Provincial Bank, 1924,
A.C. 262, held that the words " patriotic "
purposes and
" charitable " institutions and objects must be
read
disjunctively; they describe disparate and separate classes.
On the
other hand, in in re White, 1893, 2 Ch. 41, the
testator left his
residue "to the following religious
Societies, viz.": there followed
a blank. The word charity
was not mentioned. The Court of
Appeal, while recognising the
possibility that a religious Society
was not necessarily
charitable, came to the conclusion that they
could not, "
without splitting hairs ", distinguish earlier cases which
had
held that a religious purpose was a charitable purpose, and
that
they ought to hold that the gift was for charitable purposes
and
was not void for uncertainty. They approved Wilkinson v.
Lindgren,
L.R., 5 Ch. 570, which may be referred to for the use
which Lord
Hatherley L.C. made of the ejusdem generis rule. The
bequest
was for the benefit of certain named institutions, which the
Court
held were in fact religious, or " to any other religious
institu-
" tions " as the executors might think proper.
The Lord Chancellor
said that he did not see " how you can
carry on the word ' other'
" without carrying on ' religious
' also ". The gift was held valid.
I have referred to these cases as showing that the
construction
of a will cannot be reduced to the mere application
of a fixed
general formula. I think this is also illustrated by
A.G. for New
Zealand v. Brown, 1917, A.C.
393, a decision of the Privy Council,
which showed that " and
" could and should there be read as " or ".
The
bequest was in trust for such charitable, benevolent, religious
and
educational institutions " as the trustees should select".
It was
contended that the word "charitable" governed or
at least ex-
plained the following words, so that "benevolent"
objects must
be read as though the words meant such benevolent
objects as
were in their nature the proper subject of a charitable
gift. Lord
7 [10]
Buckmaster rejected this
contention, but he did not do so without
examining other parts of
the will, particularly the investment
clause, in order to
ascertain the testator's intention. The import-
ance of the
decision, which does not bind this House, is that though
the
decision in in re Jarman's Estate, 8 ChD 584, to which I
refer
later, was cited, the question was not solved by a single
absolute
formula, such as Lord Parker (who was a member of the
Board
in the New Zealand case (supra)), enunciated
shortly afterwards
in the form of the proposition that a gift for
charitable or benevo-
lent purposes is void for uncertainty.
Bowman v. Secular Society,
1917, A.C. 406, at p.
441. This would no doubt be so provided that
on the true
construction of the gift the purposes were to be read
disjunctively.
That must depend on the language of the gift. But
the point had
not been argued and was not necessary for the
decision of that
case. Such general observations have no coercive
value as
precedents.
In re Jarman (supra) may
or may not have been right in the
language of the particular gift.
The Vice-Chancellor there held
that a bequest to any charitable
or benevolent purpose which the
executors should agree upon was
indefinite and inoperative, so that
the gift failed. But it
cannot, in my opinion, be construed as
stating a general
proposition of law that a gift for charitable or
benevolent
objects must be alternative or refer to two classes of
objects.
If it did, it cannot, in my opinion, be justified. Since
that
decision the cases of in re Sutton, 28 Ch.D. 464, and in
re
Best, 1904, 2 Ch. 354, have been decided. Their effect
was that
a gift for such charitable and benevolent institutions as
the trustees
should determine is not void for uncertainty, but is
a good charit-
able gift. It was held that the testator meant
that the objects of
the gift should be both charitable and
benevolent. That is a natural
construction, because not only are
the two words, being both vague,
practically indistinguishable,
though perhaps in theory capable of
some distinction, but, as
Farwell J. said in in re Best (supra), the
testator may
have wished that the two qualities should coincide
in all the
objects of the gift. Hence only one class is intended,
combining
both attributes. I think the same conclusion can be
reached
where the two adjectives are coupled by " or " instead of
"
and ". These two particles are often to be read
interchangeably
as I have shown. The testator in the present
case is not likely to
have thought of charitable and benevolent
as describing two
different classes of objects. He would prima
facie mean a class of
object which could be indifferently
described as charitable or
benevolent, that is, one class having
the same two-fold character-
istics, if indeed he thought of them
as more than two epithets having
the same meaning. Such tautology
is not uncommon. Perhaps also
he may have desired that his money
should not be devoted to build-
ing bridges or the like. This
construction, which seems prima facie
not only probable but
sensible, is. I think, confirmed by the frame of
the sentence.
The word " other " (" other charitable or benevolent
"
object or objects in England ") seems to me to carry over the
word
charitable from the previous sentence. If the words had been
" or
" other benevolent objects ", I do not think
that anyone would
seriously contest that what was meant was "
other charitable objects
" capable also of being
characterised as benevolent ". The repetition
of "charitable
" strengthens that construction. So does the context.
If "
charitable " and " benevolent " had been completely
different
descriptions, instead of two descriptions, both vague
and indeter-
minate, overlapping, and capable of being applied to
the same
objects, the result might be different. Thus a gift of
pigs or cows
would clearly present an alternative: the two
descriptions could
not be applied indifferently to the same
animals. But a dis-
position in favour of dishonest or
unprincipled men would not
present a true alternative, though it
might on other grounds be
[11] 8
void for uncertainty. Only the
adjectival description is alternative,
and both adjectives are to
be applied indifferently to the same
objects; there is then only
one class and not two. If the testator
had expressly stated that
only one class was meant, that statement
would have received
effect. But the same result may be reached
by considering the
context. This way of looking at the question has
been adopted by
the eminent Scotch judges, Lords Dunedin,
Kinnear, Maclaren and
Dundas, who have held that certain dis-
positions in favour of
charitable or benevolent objects or the like
referred as a matter
of construction to one class and not two classes.
I refer in
particular to the decisions in Hay's Trustees v.
Baillie,
1908, S.C. 1224, and Paterson's Trustees v.
Paterson, 1909, S.C.
485. The Scots Law has not been argued
before your Lordships,
but I think that these decisions involve
the application of rules
of construction common both to English
and Scottish law.
For myself, I would allow the
appeal and restore the judgment
of Farwell J.
[I2
CH1CHESTER DIOCESAN FUND AND
BOARD OF
FINANCE (INCORPORATED)
v.
SIMPSON AND OTHERS
Lord Porter
Lord
Chancellor
Lord
Macmillan
Lord
Wright
Lord
Porter
Lord
Simonds
MY LORDS,
It is common ground and
undoubted law that in construing a will
the object of the Court
is to try to ascertain the intention of the
testator. But it is
the expressed intention which must govern. The
principle is
succinctly expressed by Lindley, L.J., as he then was,
in re
Morgan [1893] 3 Ch 222 at p. 227: " Now I do not see
why,
" if we can tell what a man intends and can give effect
to his inten-
" tion as expressed, we should be
driven out of it by other cases or
" decisions in other
cases "; the italics are mine.
In construing what the testator
has said it is permissible to con-
sider that he did not intend
to die intestate; see per Lord St.
Leonards in Grey v.
Pearson 6 h.l.c. 99.
But technical words must be
interpreted in their technical sense
and " charity " or
" charitable " are technical words in English
law, and
must be so construed unless it can be seen from the word-
ing of
the will as a whole that they are used in some other than
their
technical sense. For this purpose and in order to discover
the
testator's intention it is the duty of the Court to take into
considera-
tion the whole of the terms of the will and not to
confine itself to
the disputed words or their immediate context.
In the present case the words
whose interpretation is contested
are " charitable or
benevolent". It is admitted on behalf of the
Appellants that
if the word " benevolent" stood alone, it would
be too
vague a term and the gift would be void; see James v.
Allen
[1817] 3 Mer 17; but it is said that when coupled
with the word
" charitable ", even by the disjunctive "
or", it either takes its
colour from its associate or is
merely exegetical, and the phrase is
used as implying either that
" charitable " and " benevolent " are
the
same thing or that " benevolent " qualifies "
charitable " so as
to limit the gift to objects which are
both charitable and benevolent.
In my view the words so coupled
dp not naturally bear any of
the meanings suggested. The addition
of "benevolent" to
" charitable " on the face
of it suggests an alternative purpose, and
I do not see why in
this collocation " benevolent" should be read
as "
charitable benevolent". Nor do I think that it can be said
to
be merely exegetical. Primd facie these are alternative
objects, and
even if they were not the word " charitable ",
to be exegetical of
" benevolent", should follow and
not precede it. The wording
should be " benevolent or
charitable " meaning " benevolent i.e.
"
charitable "—not " charitable or benevolent "
meaning " charit-
" able i.e. benevolent". In the
latter case the gift might still be
said to be given to too wide
a class, viz. to benevolent objects and
not to charitable ones.
But in truth, however anxious
one may be to strain the language
used so as to benefit charities
only, the weight of authority is too
great to be readily
overthrown.
Two matters of principle in the
interpretation of wills are firmly
established:
(1) The testator must make his
own will and not leave his
executors to make their choice of the
objects of his bounty, subject
to this, that a general gift to
charity will be upheld. (2) It is not,
[13] 2
however, enough that he should leave property under a
disposition
in pursuance of which his assets may be disposed of to
charities or
for some other purpose, not even though his executors
in fact
apply them only to charitable purposes. ' The question is
", said
Sir W. Grant in James v. Allen 3 Mer. 17 at p.
19, " what authority
" would this Court have to say that
the property must not be
" applied to purposes however
benevolent unless they also come
" within the technical
denomination of charitable purposes ? If it
" might,
consistently with the will, be applied to other than strictly
"
charitable purposes, the trust is too indefinite for the Court to
"
execute ".
The same principle is enunciated in Hunter v.
A.G. [1899]
A.C. 309 where Lord Davey at p. 323, in saying
that the charitable
purposes must not be mixed up with other
purposes of such an
indefinite nature that the Court cannot
execute them, gives as
illustrations of such mixing the
conjunction of " charitable or
" benevolent", or "
charitable or philanthropic ", or " charitable or
"
pious "
The various tribunals in England which have expressed
their
views as to this combination have all tended the same way.
So long ago as 1836 Lord Cottenham L.C. expressed the
opinion
in Ellis v. Selby I My. and Cr. 286 at p. 299 that
a gift to " charit-
" able or other purposes " was
void.
Similar opinions are to be found in Attorney-General
for New
Zealand v. Brown [1917] AC 393, in Houston v.
Burns [1918]
A.C. 337, and A.G. for New Zealand v. New
Zealand Insurance
Coy. [1936] 53 T.L.R. 37, to quote but three
from amongst those
discussed in your Lordships' House or in the
Privy Council.
Indeed, in Williams v. Kershaw 5 Cl. and F.
in, a bequest of
property for benevolent charitable and religious
purposes was held
void because it was considered that the testator
could not have
intended the recipient purposes to be benevolent
and charitable
and religious all at the same time, and therefore
that " and " must
be read disjunctively. I need not
refer to the numerous cases
decided in Courts of first instance
and in the Court of Appeal ex-
pressing a view similar to that
contained in those quoted.
If the authorities be extended beyond those decided in a
final
Court of Appeal, the exact combination " charitable or
benevolent "
is to be found and was held void in re
Jarman's Estate, 8 Ch. D.
584-
Nor is the force of these and the many other authorities
to the
same effect weakened by the fact that a bequest for
benevolent
and charitable purposes has been held a valid
gift (see re Best
[1904] 2 Ch 354), since the conjunction
in that case is effected
by using "and", not "or".
Nor by the decisions in Attorney-
General for New Zealand v.
Brown [1917] AC 393, where the
wording was "
charitable, benevolent, religious and educational in-
"
stitutions, societies, associations and objects ", and in re
Bennett
[1920] 1 Ch. 305, where the wording was " for the
benefit of the
" schools, and charitable institutions, and
poor, and other objects
" of charity, or any other public
objects ". In each of these last
two cases it was held the
complex phrases used must properly be
construed so that "
benevolent" or " public ", as the case might be,
took
its colour from " charitable " and must be read as
ejusdem
generis with it. In so complex a form of words the
ejusdem generis
rule might well be prayed in aid, whereas
in a simpler form it might
be inapplicable.
But in truth the terms in which other wills are framed
are but
a loose guide to the construction of that in question.
Each will
must be interpreted in the light of its own wording.
3 [14]
No doubt the testator in the present case wished his
estates to
go to objects of a benevolent character or, as Goddard
L.J. has it,
to " charity " in the popular sense; but "
charity " in that sense is
not coterminous with "charity"
in the technical sense, and I can
find nothing in the wording of
the will to lead to a different result.
The fact that in another clause of this will he gave
certain specific
legacies leads nowhere, and a gift in the case of
institutions limited
to charitable ones, followed by a gift to "
other charitable or
" benevolent objects ", to my mind
suggest a widening of his bene-
ficence in the latter case rather
than a general charitable intent, if
" charity " be used
in its technical sense.
The Appellants, however, gain their strongest support
from the
Scotch decisions. In those cases " societies or
institutions of a
" benevolent or charitable nature "
(Hay's Trustees v. Baillie 1908
S.C. 1224), " such
charities or benevolent or beneficent institutions "
(Paterson's
Trustees v. Paterson 1909 S.C. 485), and " charitable or
"
philanthropic institutions " (MacKinnon's Trustees v.
MacKinnon
1909 S.C. 1041), have all been held valid
charitable trusts, whilst
in Reid's Trustees 1929 S.C. 727,
a bequest in the form " poor
" persons in Eskdale or
such charitable, educational, or benevolent
" societies or
public institutions in Scotland " failed only, it
appears,
because of the addition of " public institutions ".
In all the cases where the gift was held good, the ratio
decidendi
appears to have been that the testator was
designating one class of
recipients, i.e. charities, not two or
more separate classes of
beneficiary.
But Scotch law differs from English law on this point,
probably
because it approaches the subject from a different angle.
In the
first place the statute of Elizabeth, 43 Eliz. C. 4, the
benevolently
interpreted preamble of which forms the basis for
determining
what are charities in English law, never applied to
Scotland, and
in the second, charities, speaking generally, are
not controlled by
the Scots Courts.
The ambit of " charity " in Scotland may be
narrower than it
is in England; at any rate Lord Moncreiff thought
so, as appears
from his dissenting Judgment in Grimond v.
Grimond, reported
in [1905] A.C., at p. 605, and afterwards
approved in your Lord-
ships' House at p. 124 of the same volume.
Whether it be narrower
or not it differs, and I do not think your
Lordships can obtain
any satisfactory guidance from the decisions
in the Scotch Courts
in a case where the validity of a gift in an
English will depends
upon its charitable nature.
I find myself in accord with the Judgment of the Master
of the
Rolls and agree that the appeal should be dismissed.
Lord
Chancellor
Lord
Macmillan
Lord
Wright
Lord
Porter
Lord
Simonds
[15]
CHICHESIER DIOCESAN FUND AND
BOARD OF
FINANCE (INCORPORATED)
v.
SIMPSON AND OTHERS
Lord Simonds
MY LORDS,
The question raised in this
appeal turns upon the meaning and
effect of the will of Caleb
Diplock, who died on the 2nd March,
1938. By his will,
which was dated the 3rd November, 1919, the
Testator, after
appointing executors and making certain bequests
and devises, to
which I do not think it necessary to refer, gave
the residue of
his estate to his executors upon trust for sale and
conversion,
and subject to certain payments thereout, directed them
to apply
the residue " for such charitable institution or institutions
"
or other charitable or benevolent object or objects in England
"
as my acting executor or executors may in their or his
absolute
"discretion select, and to be paid to or for such
institutions and
" objects, if more than one, in such
proportions as my executors
" or executor may think proper".
The Testator added certain
administrative directions which do not
assist in the construction of
the words that I have cited.
The will was duly proved on the
16th May, 1938, and the
executors forthwith proceeded to a
distribution of the Testator's
large estate among a number of
institutions, one of which was the
Appellant, the Chichester
Diocesan Fund and Board of Finance
(Incorporated). After the
estate had been distributed the validity
of the residuary bequest
and the propriety of the distribution were
challenged by certain
persons who claimed to be some of the next-
of-kin of the Testator
and accordingly to be entitled to a share of
his residuary estate
as upon his intestacy. On the 10th June,
1940, the Originating
Summons, out of which this appeal arises,
was issued by the
executors in the Chancery Division for the deter-
mination of the
single question whether the trust of residue con-
tained in the
will, which I have already stated, was a valid charit-
able trust
or was void for uncertainty or otherwise. To this summons
the
appellant institution, the claimant next-of-kin and the
Attorney-
General were made defendants. My Lords, I mention these
facts not
because they can in any way affect the construction of
the will
which your Lordships have to construe, but because they
explain
why it was necessary, or at least desirable, that any
other party
than the Attorney-General should be heard to argue the
present
case. In the ordinary case it is the Attorney-General
alone,
representing the Crown as parens patriae, who is
heard upon
the question of validity or invalidity of such a
bequest as
that now under consideration. In the present case
the
actual distribution of the Testator's estate and the
pendency
of proceedings by the next-of-kin for its recovery, in
which this
very question of validity would be vital, made it
necessary to take
the unusual course of adding the appellant
institution as a
defendant as representative of all the
institutions which had received
a share of the estate. But this
fact is, as I have said, irrelevant to
the construction of the
will: equally irrelevant are the facts which
are brought to your
Lordships attention that the estate is a large
one, that the
next-of-kin are not near relatives, that the discovery
of a
possible flaw in the will was fortuitous, and that the
proceedings
were belated. The construction of this will is the
same, whether
its invalidity brings an unexpected windfall to
distant relations or
its validity disappoints the reasonable hopes
of a dependent family.
2 [16]
My Lords, in stating the question for your Lordships'
considera-
tion I have said that it turns upon the meaning and
effect of the
Testator's will. Advisedly I have put meaning before
effect, For
I approach this will, as I approach any other will,
with the resolve
to find the Testator's intention from the
language that he has used.
When I have found it, I consider its
effect. If there is an ambiguity,
it may be that I am at liberty
to choose that construction which
will give legal effect to the
instrument rather than that which will
invalidate it. Where the
Testator's words would, if no question of
invalidity arose, leave
no doubt in my mind, I am not at liberty to
create an ambiguity in
order then to place what is sometimes called
a benignant
construction upon the will.
My Lords, the words for your consideration are these, "
charit-
" able or benevolent": the question is whether,
in the context in
which they are found in this will, these words
give to the executors
a choice of objects extending beyond that
which the law recognises
as charitable. If they do not, that is
the end of the matter: the
trust is a good charitable trust. If
they do, it appears to be con-
ceded by counsel for the appellant
institution that the trust is
invalid, but in deference to the
argument of the Attorney-General,
who invited your Lordships to
take a different view, I must say a
few words at a later stage.
My Lords, of those three words your Lordships will have
no
doubt what the first, " charitable ", means. It is a
term of art with
a technical meaning and that is the meaning which
the Testator
must be assumed to have intended. If it were not so,
if in this will
" charitable " were to be given not its
legal but some popular mean-
ing, it would not be possible to
establish the validity of the bequest.
The last of the three words
" benevolent" is not a term of art:
in its ordinary
meaning it has a range in some respects far less
wide than legal
charity, in others somewhat wider. It is at least clear
that the
two words, the one here used in its technical meaning,
the other
having only, and accordingly here used in, a popular
meaning, are
by no means coterminous. These two words are joined
or separated
by the word " or ", a particle, of which the
primary
function is to co-ordinate two or more words between which
there
is an alternative. It is, I think, the only word in our
language apt
to have this effect: its primary and ordinary meaning
is the same,
whether or not the first alternative is preceded by
the word
"either".
My Lords, averting my mind from the possible ill effects
of an
alternative choice between objects " charitable "
and objects " bene-
" volent", I cannot doubt that
the plain meaning of the Testator's
words is that he has given
this choice and that, if he intended to
give it, he could have
used no words more apt to do so. Is there
then anything in the
context which narrows the area of choice
by giving to the words "
or benevolent" some other meaning than
that which they
primarily and naturally have ? And, if so, what
is the other
meaning which is to be given to them ? Let me examine
the second
question first. Since the test of validity depends on the
area of
choice not being extended beyond the bounds of legal
charity, a
meaning must be given to the words " or benevolent"
which
retains them within these bounds. This result, it has been
contended,
may be reached by giving to the word " or " not its
primary
disjunctive meaning but a secondary meaning which may
perhaps be
called exegetical or explanatory. Undoubtedly " or "
is
capable of this meaning: so used, it is equivalent to " alias "
or
" otherwise called " : the dictionary examples
of this use will
generally be; found to be topographical, as
"Papua or New
Guinea . But, my Lords, this use of the word " or "
is only pos-
sible if the words or phrases which it joins connote
the same thing
and are interchangeable the one with the other. In
this case the
Testator is assumed to use the word "
charitable " in its legal sense :
[17] 3
I see no possible ground for
supposing that he proceeds to explain
it by another word which has
another meaning and by no means
can have that meaning. I must
reject the exegetical ' or ". Then
it was suggested that the
words " or benevolent" should be con-
strued as
equivalent to " provided such objects are also of a bene-
"
volent character ", that is to say, the objects must be
charitable
but of that order of charity which is commonly called
benevolent.
I think that this is only a roundabout way of saying
that " or'
should be read as " and ", that the
objects of choice must have
the two characteristics of charitable
and benevolent. It is possible
that a context may justify so
drastic a change as that involved
in reading the disjunctive as
conjunctive. I turn then to the con-
text to see what
justification it affords for reading the relevant
words in any but
their natural meaning. Reading and re-reading
them, as your
Lordships have so often done in the course of this
case, I can
find nothing which justifies such a departure. It is true
that the
word " other " introduces the phrase " charitable or
bene-
" volent object or objects " and to this the
Appellants attached some
importance, suggesting that since "
other " looked back to " charit-
" able institution
or institutions ", so all that followed must be of the
genus
charitable. There can be no substance in this, for in the
phrase
so introduced the word " charitable " is itself repeated
and
is followed by the alternative " or benevolent".
Apart from this
slender point it seemed that the Appellants relied
upon what is
called a general, a dominant, an over-riding
charitable intention,
giving charitable content to a word or
phrase which might other-
wise not have that quality. That such a
result is possible there
are cases in the books to show: some of
them have been cited to
your Lordships. But here again I look in
vain for any such con-
text. Upon the plain reading of this will I
could only come to the
conclusion that the Testator intended
exclusively to benefit charit-
able objects if I excised the words
" or benevolent" which he
has used. That I cannot do.
Coming to the conclusion that upon the true construction
of this
will the executors may if they think fit distribute the
Testator's
estate among objects which are benevolent but not
charitable,
I then ask what is in law the effect of such a
disposition. My Lords,
it may not have come as so rude a shock to
some of your Lordships
as it did to me to hear it suggested that
there could be any doubt but
that it is utterly invalid. But in
fact the learned Attorney-General, if
I understood his argument,
categorically invited your Lordships to
hold that a bequest for
charitable or benevolent objects simpliciter
is in English
law a good and effective bequest, and urged
that the case of re
Jar-man which decided the contrary should
be over-ruled. In
other words, his contention was that to enlarge
the executors'
area of choice so as to include benevolent objects
which are not
charitable with objects which are charitable does
not make the
whole gift fail for uncertainty. I do not see how,
if his
proposition is a sound one, it could be limited to the intro-
duction
of benevolent objects: philanthropic objects, liberal
objects,
perhaps patriotic or public objects, must come within the
scope of
this new doctrine. Nor, if a gift for charitable or bene-
volent
objects is valid, could it be any longer contended with any
show
of logic that a gift for benevolent objects alone is invalid.
My
Lords, I suggest that this proposition runs counter to authority
and
principle. Were it necessary to examine the authorities,
your
Lordships would find that a more formidable task than the
over-
ruling of re Jarman lay before you. I say nothing of
a chain
of cases which goes back to Sir William Grant and Lord
Eldon.
who themselves rested on ancient precedent, see Morice
v. Bishop
of Durham, 10 Ves. 522. I refer only to the
fact that in recent times
Lord Davey in Hunter v. A.G.
(1899) AC 309, and Lord Parker
in Bowman v. Secular
Society (1907) A.C. 406, have selected such
words as "
charitable or benevolent " as the very type of gift which
4 [18]
fails by reason of the admixture of charitable with
non-charitable
objects. There is good reason why this should be
so. It is a
cardinal rule, common to English and to Scots law,
that a man
may not delegate his testamentary power: to him the law
gives
the right to dispose of his estate in favour of ascertained
or ascer-
tainable persons. He does not exercise that right if in
effect he
empowers his executors to say what persons or objects
are to be
his beneficiaries. To this salutary rule there is a
single exception:
a testator may validly leave it to his executors
to determine what
charitable objects shall benefit, so long as
charitable and no other
objects may benefit. To explain or to
justify this exception is
unnecessary. It conveniently and
securely rests to-day upon the
theory that a charitable trust can
be executed by the Court, but
a so-called benevolent trust cannot.
For the Court knows what is
charitable by reference to the
preamble to the Statute of Eliza-
beth, to the objects there
enumerated and all others which " by
" analogies are
deemed within its spirit and intendment ", but what
is
benevolent the Court knows not. It is possible that the exception
was
originally established on some broader ground of favour to
charity.
But into this I need not enter. It is sufficient to say that,
this
exception in favour of charity having been long established,
there
is no ground for extending it in favour of objects which are
not
charitable.
My Lords, I concur in the motion that the Appeal should
be
dismissed.
(36364)
Wt, 8284— 16 25 7/44 D.L. G33
