HUNTER v Attorney General
| Jurisdiction | England & Wales |
| Date | 1899 |
| Court | House of Lords |
Charity - Will - Failure of Gift - Bequest of Trust Funds to be applied “in Grants for or towards the Purchase of Advowsons or Presentations.”
A bequest to trustees to expend the income or any portion of the trust funds “in grants for or towards the purchase of advowsons or presentations” is not a good charitable bequest.
A testator by his will declared that his residuary estate or so much thereof as should be legally applicable to charitable purposes should be transferred by his general trustees to special trustees in trust to apply the income or any portion of the capital “in grants for or towards the purchase of advowsons or presentations, or in creating or contributing to the erection, improvement or endowment of churches, chapels or schools, or in paying or contributing to the salaries or income of rectors, vicars or incumbents, masters or teachers”; but upon certain conditions. The conditions were framed with a view to the promotion of “true Protestant and Church of England principles as held by those of her divines, clergy and members who are distinguished as Evangelical,” and though applicable to the other purposes were not applicable to the purchase of advowsons or presentations:—
Held, that since upon the true construction of the will no trust, charitable or other, which the Court could execute or control was annexed to the advowsons or presentations for the purchase of which the trustees had power to make grants, and there was no general trust for charity binding the whole fund, the whole gift failed and the residuary estate was undisposed of.
BY his will dated May 26, 1877, Edward Hunter gave (in the events which happened) all the residue of his estate real and personal to his executors and general trustees with a declaration that upon the happening of certain events the residue or so much thereof as should be legally applicable for charitable purposes should be paid or transferred by his general trustees for the time being to special trustees to be held and applied by them upon the trusts and in manner following, that is to say: “The special trustees may retain or invest such part of my residuary estate as shall come to or devolve upon them in or upon any stocks funds shares or securities which they may think proper, and whether of the class hereinbefore prescribed by me or not, and they may apply the income or any portion of the capital in grants for or towards the purchase of advowsons or presentations, or in creating or contributing to the erection improvement or endowment of churches chapels or schools, or in paying or contributing to the salaries or income of rectors vicars or incumbents masters or teachers, but upon the following conditions: (1.) That only such churches or chapels shall be subscribed or contributed to wherein the service shall in the opinion of the special trustees be conducted upon pure Protestant and Church of England principles, by which I mean the principles of the Church of England as held and inculcated by those of her divines clergy and members who are distinguished as Evangelical and loyal to the work and fruits of the Reformation and as holding doctrines and principles free from all Popish or Roman Catholic tendency and opposed thereto. (2.) That only such schools shall be subscribed or contributed to wherein true Protestant and Church of England principles are distinctly taught and inculcated, with preference to those established for children of the poorer classes. (3.) That only such masters and teachers receive grants who best shew forth by their teaching and example true Protestant and Church of England principles. (4.) That no payment shall be made directly or indirectly to or for the benefit of any rector vicar or incumbent unless upon condition that he shall if not prohibited in law at the principal Sunday morning service in his church selecting a time and state of weather when the congregation is supposed to be the greatest read the 39 Articles of the Church of England and which I recommend he should make the subject of his discourse from time to time. And upon further condition that he shall on the first Sunday of every month at the chief morning service preach a sermon on ‘Love’ from a text taken from the Gospel Epistles or Revelations of St. John. And I declare that if the special trustees shall find or consider that any rector vicar or incumbent master or teacher shall preach teach publish inculcate encourage adopt or follow any doctrines or practices which shall be contrary to or at variance with true Protestant and Church of England principles he or she shall be disqualified from receiving any benefit under this my will. And it being my wish that as much as possible of my residuary estate shall be applicable and available for administration by special trustees in manner aforesaid I declare that all my debts funeral and testamentary expenses and the duty on all legacies under this my will or any codicil not payable by the legatees shall be raised and paid out of such parts of my residuary estate as are not legally applicable to charitable purposes, to the exoneration of the residue thereof, and that no part of my residuary estate which shall be so legally applicable shall be invested or dealt with so as to make the same inapplicable or unavailable for those purposes.” The will then appointed certain persons (all of whom predeceased him) to be the first special trustees of his will and declared “that if they shall decline to act as such, then special trustees shall be nominated by my general trustees for the time being, who I am sure will select men who may be depended upon to respect and fulfil my wishes.”
The testator died in July 1896, leaving personalty worth between 80,000l. and 90,000l., and realty of small value. The respondent Hood, being the surviving executor and general trustee, issued a summons for the determination of the question (inter alia) whether the trusts by the will declared and entrusted to special trustees were void or were valid as charitable trusts or otherwise. To this summons the Attorney-General and the testator's heir-at-law and next of kin were made defendants. Romer J. - being of opinion that the liberty to the special trustees to expend the income or any portion of the capital of the trust fund in grants for or towards the purchase of advowsons or presentations was not a valid charitable bequest, and that the whole gift therefore failed — declared that upon the true construction of the will the trusts declared and entrusted to special trustees were void and that the testator's residuary real and personal estates were undisposed of, all taxed costs to be paid out of the estate.F1 The Court of Appeal (Lindley, Lopes and Rigby L.JJ.) reversed this decision and declared that the residuary real and personal estates were devised and bequeathed upon good and valid charitable trusts which ought to be carried into effect accordingly, all taxed costs to be paid out of the estate.F2 Against this decision the heir-at-law and next of kin brought the present appeal.
1898. Nov. 17, 21, 22. Cozens-Hardy Q.C. and Levett Q.C. (George Lawrence with them) for the appellants. The Lords Justices have read words into the will which are not there, and have treated the will as if it declared a charitable trust with regard to the purchase of advowsons and presentations. The testator may have intended such a trust, but he has not expressed it. Even if the words supposed to be inserted were there, there would be no charity, as Romer J. said. Briefly, the trust for the first purpose is not valid as a charity if it does not increase the number or value of livings, and if it excludes from selection a large number of duly qualified clerks. But independently of that point, as the will is expressed there is no trust for charitable purposes within the meaning of the term accepted by the Court of Chancery. No trust of any kind is declared of the advowsons, and a gift of money simply for the purchase of advowsons is not a charitable trust: Attorney-General v. WebsterF3, per Jessel M.R.F4 The only cases in which such gifts have been said to be charitable are where there has been a trust for the benefit of the parish, or where the parson is to be chosen by the parishioners. Thus this part of the bequest is not for a legal charity; especially as the gift is “for or towards” the purchase of advowsons, so that it is not contemplated that the trustees will have the control. If one out of several objects to which the fund may be applied is not charitable, the whole gift fails: Morice v. Bishop of DurhamF5, per Sir William Grant M.R., affirmed by Lord Eldon.F6 Where there is a general and undefined trust, giving an option in the trustees to do as they like, the Court will not give effect to the gift as a charity: Vezey v. Jamson.F7 The gift is too indefinite, and the Court will not apportion among the several objects indicated or treat it as a charitable trust: James v. AllenF8; Ommanney v. ButcherF9; Williams v. KershawF10; Ellis v. Selby.F11 The indefiniteness of the objects and the wide discretion in the trustees are fatal to the contention that this is a good charitable gift. “The question,” as expressed by Sir W. Grant in Morice v. Bishop of DurhamF12, “is not whether the trustee may not apply it upon purposes strictly charitable, but whether he is bound so to apply it.” The authorities are fully discussed in In re Macduff.F13
Sir R. E. Webster A.-G. and Ingle Joyce (Dibdin with them) for the respondent, the Attorney-General. The real intention of the testator was to create a trust to make grants, not...
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