Dingle v Turner
| Jurisdiction | England & Wales |
| Judge | Viscount Dilhorne,Lord MacDermott,Lord Hodson,Lord Simon of Glaisdale,Lord Cross of Chelsea |
| Judgment Date | 16 February 1972 |
| Judgment citation (vLex) | [1972] UKHL J0216-2 |
| Court | House of Lords |
[1972] UKHL J0216-2
Viscount Dilhorne
Lord MacDermott
Lord Hodson
Lord Simon of Glaisdale
Lord Cross of Chelsea
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Dingle (Widow) against Turner and others, that the Committee had heard Counsel as well on Wednesday the 17th, as on Thursday the 18th, Monday the 22d and Tuesday the 23d days of November last, upon the Petition and Appeal of Betty Mary Dingle (Widow), of "Darley" 23, Greville Park Avenue, Ashtead, in the County of Surrey, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of the Chancery Division of Her Majesty's High Court of Justice of the 2d of April 1971, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Henry Elliot Turner, Henry George Hunt, Beatrice Elizabeth Winifred Snell, Lilian Mary Guscott, Audrey Anne Pearce, William Richard Tremlett, Vera Kathleen Blunden, Dorothy Pridham, Queenie May Jones, Winifred May Vinson, Lloyds Bank Limited, and Her Majesty's Attorney General, lodged in answer to the said Appeal; 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 Her Majesty the Queen assembled, That the said Order of the Chancery Division of Her Majesty's High Court of Justice of the 2d day of April 1971, 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 this House be paid out of the Testator's Pensions Fund, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
I have had the advantage of reading the opinions of my noble and learned friends, Lord Cross of Chelsea and Lord MacDermott. I agree with Lord Cross that this appeal should be dismissed and with the reasons he gives for that conclusion.
With Lord MacDermott, I too do not wish to extend my concurrence to what my noble and learned friend Lord Cross has said with regard to the fiscal privileges of a legal charity. Those privileges may be altered from time to time by Parliament and I doubt whether their existence should be a determining factor in deciding whether a gift or trust is charitable.
I agree that the costs of all the parties should be paid out of the fund.
My Lords,
The conclusion I have reached on the facts of this case is that the gift in question constitutes a public trust for the relief of poverty which is charitable in law. I would therefore dismiss the appeal.
I do not find it necessary to state my reasons for this conclusion in detail. In the first place, the views which I expressed at some length in relation to an educational trust in Oppenheim v. Tobacco Securities Trust Coy. Ltd. and others, [1951] A.C. 297, seem to me to apply to this appeal and to mean that it fails. It would, of course, be otherwise if the case just cited purported to rule the point now in issue. But that is not so, for it clearly left that point undecided and open for further consideration.
And, secondly, I have had the advantage of reading the opinion prepared by my noble and learned friend, Lord Cross of Chelsea, and find myself in agreement with his conclusion for the reasons he has given. In particular, I welcome his commentary on the difficulties of the phrase "a section of the public". But I would prefer not to extend my concurrence to what my noble and learned friend goes on to say respecting the fiscal privileges of a legal charity. This subject may be material on the question as to whether what is alleged to be a charity is sufficiently altruistic in nature to qualify as such, but beyond that, and without wishing to express any final view on the matter, I doubt if these consequential privileges have much relevance to the primary question whether a given trust or purpose should be held charitable in law.
I agree with the order as to costs proposed by my noble and learned friend.
My Lords,
I agree with my noble and learned friend, Lord Cross of Chelsea, that this appeal should be dismissed and with his reasons for that conclusion. With this reservation: that I share the doubts expressed by my noble and learned friends, Lord MacDermott and Viscount Dilhorne, as to the relevance of fiscal considerations in deciding whether a gift or trust is charitable.
My Lords,
I have had the advantage of reading the opinion of my noble and learned friend, Lord Cross of Chelsea, with which I agree.
I too would dismiss this appeal, and make the same recommendation as to costs.
My Lords,
By his will dated 10th January, 1950, Frank Hanscomb Dingle (whom I will call the Testator) after appointing Lloyds Bank Ltd., his wife Annie Dingle and his solicitor Henry Elliot Turner to be his executors and trustees made the following—among other—dispositions. By clause 5 he gave to his trustees his ordinary and preference shares in E. Dingle and Company Ltd. upon trust to pay the income arising therefrom to his wife for her life and after her death to hold the same in trust for such person or persons as she should by will or codicil appoint but without any trust in default of appointment. By clause 8( a) he directed his trustees to pay the income of his residuary estate after payment thereout of his debts funeral and testamentary expenses to his wife for her life. By clause 8( b), ( c), ( d), ( e) and ( f) he directed his trustees to raise various sums out of his residuary estate after the death of his wife. Clause 8( e) was in the following terms:
"( e) To invest the sum of Ten thousand pounds in any of the investments for the time being authorised by law for the investment of trust funds in the names of three persons (hereinafter referred to as "the Pension Fund Trustees") to be nominated for the purpose by the persons who at the time at which my Executors assent to this bequest are directors of E. Dingle & Company Limited and the Pension Fund Trustees shall hold the said sum and the investments for the time being representing the same (hereinafter referred to as 'the Pensions Fund') UPON TRUST to apply the income thereof in paying pensions to poor employees of E. Dingle & Company Limited or of any other company to which upon any reconstruction or amalgamation the goodwill and assets of E. Dingle & Company Limited may be transferred who are of the age of sixty years at least or who being of the age of forty five years at least are incapacitated from earning their living by reason of some physical or mental infirmity PROVIDED ALWAYS that if at any time the Pension Fund Trustees shall for any reason be unable to apply the income of the Pensions Fund in paying such pensions to such employees as aforesaid the Pension Fund Trustees shall hold the pensions Fund and the income thereof UPON TRUST for the aged poor in the Parish of St. Andrew Plymouth."
Finally by clause 8( g) the Testator directed his trustees to hold the ultimate residue of his estate on the trusts set out in clause 8( e).
The Testator died on 10th January, 1950. His widow died on the 8th October, 1966, having previously released her testamentary power of appointment over her husband's shares in E. Dingle and Co. Ltd. which accordingly fell into the residuary estate. When these proceedings started in October, 1970, the value of the fund held on the trusts declared by clause 8( e) was about £320,000 producing a gross income of about £17,800 per annum.
E. Dingle and Company Ltd., was incorporated as a private company on 20th January, 1935. Its capital was owned by the Testator and one John Russell Baker and it carried on the business of a departmental store. At the time of the Testator's death the Company employed over 600 persons and there was a substantial number of ex-employees. On 23rd October, 1950, the Company became a public company. Since the Testator's death its business has expanded and when these proceedings started it had 705 full time and 189 part-time employees and was paying pensions to 89 ex-employees.
The Trustees took out an Originating Summons in the Chancery Division on the 30th July, 1970, asking the Court to determine whether the trusts declared by clause 8( e) were valid and if so to determine various subsidiary questions of construction—as, for example, whether part-time employees or employees of subsidiary companies were eligible to receive benefits under the trust. To this Summons they made defendants (1) representatives of the various classes of employees or ex-exployees, (2) those who would be interested on an intestacy if the trusts failed and (3) Her Majesty's Attorney-General. It has been common ground throughout that the trust at the end of clause 8( e) for the aged poor in the Parish of St. Andrew Plymouth is dependant on the preceding trust for poor employees of the Company so that although it will catch any surplus income which the Trustees do not apply for the benefit of poor employees it can have no application if the preceding trust is itself void.
By his judgment given on 2nd April, 1971, Megarry J. held ( inter alia), following the decision of the Court of Appeal in Gibson v. South American Stores (Gath & Chaves) Ltd. [1950] Ch. 177, that the trust declared by clause 8( e) was a valid charitable trust but, on the application of the Appellant Betty Mary Dingle, one of the...
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