Chichester Diocesan Fund & Board of Finance (Incorporated) v Simpson

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeThe Lord Chancellor,Lord Macmillan,Lord Wright,Lord Porter,Lord Simonds
Judgment Date21 June 1944
Judgment citation (vLex)[1944] UKHL J0621-1
Date21 June 1944

[1944] UKHL J0621-1

House of Lords

Lord Chancellor

Lord Macmillan

Lord Wright

Lord Porter

Lord Simonds

Chichester Diocesan Fund and Board of Finance (Incorporated)
and
Simpson and Others

After hearing Counsel, as well on Wednesday the 26th and Thursday the 27th days of April last, as on Monday the 1st and Tuesday the 2nd days of May last, upon the Petition and Appeal of The Chichester Diocesan Fund and Board of Finance (Incorporated) of which the registered office is at Diocesan Church House, 9 Brunswick Square, Hove, in the County of Sussex, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 15th of January 1941, so far as therein stated to be appealed against, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Thomas Frederick Simpson, Cornelius Simpson and Mary Anna Gaskill, lodged in answer to the said Appeal (in which said case it was stated that His Majesty's Attorney-General, called as a Respondent in the said Appeal, was concerned only for the protection of the charitable interests arising out of the will of Caleb Diplock, deceased, and did not lodge a separate case in answer thereto); and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 15th day of January 1941, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the costs of all parties in respect of the said Appeal to this House, be taxed as between Solicitor and Client and paid out of the Estate of the Testator, the amount thereof to be certified by the Clerk of the Parliaments.

The Lord Chancellor

My Lords,

1

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 charitable 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.J J.), overruling Farwell J., has decided that this is not a valid testamentary disposition.

2

After 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.

3

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 exception arises when the testator is minded to make gifts for charitable 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 other. It appears to me that it inevitably follows that the phrase "charitable or benevolent" occurring in a will must, in its ordinary context, be regarded as too vague to give the certainty necessary before such a provision can be supported or enforced.

4

Then, is there any special context in this will which would justify a different interpretation? I have listened with much sympathy to the efforts to find one, but it does not seem to me, notwithstanding the late Mr. Justice Farwell's opinion, that there is any context which might give to the impeached phrase a special meaning. The conjunction "or" may be sometimes used to join two words whose meaning is the same, but, as the conjunction appears in this will, it seems to me to indicate a variation rather than an identity between the coupled conceptions. Its use is analogous in the 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".

5

I regret that we have to arrive at such a conclusion, but we have no right to set at nought an established principle such as this in the construction of wills, and I therefore move the House to dismiss the appeal.

Lord Macmillan

My Lords,

6

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 selection of individual persons or objects within the defined 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.)

7

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 purposes 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.)

8

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".

9

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.

10

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 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 find no warrant for reading conjunctively two words which the testator has expressly disjoined.

11

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 consideration by this House. Thus it has been held competent for a testator in Scotland to empower his trustees to make a selection...

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