NOTES OF CASES

Published date01 November 1941
Date01 November 1941
DOIhttp://doi.org/10.1111/j.1468-2230.1941.tb00888.x
NOTES
OF
CASES
I33
NOTES
OF
CASES
Recent
Developments
in
the
Law
of
Charitable
Trusts
The privileges of charitable trusts and gifts continue, with their usual
frequency, to come before the courts for interpretation. As was generally
expected, the privilege of uncertainty was allowed by the
Court
of Appeal
to validate the trust in
Re Ward
(1941 57
T.L.R.
473),
when’the decision
of Farwell,
J.,
was reversed
(ibid.
326).
His decision has been noted in the
previous number of this REVIEW.
It
was a surprise to MacKinnon,
L.J.,
in the light of the traditional fourfold classification of charities, that a
trust for “religious purposes” with a discretion in the trustees limited
to
Roman Catholics in the British Empire should
be
thought to fail for
uncertainty. There were some considerations arising out of the phraseology
of the will
as
a
whole which impressed the judge of first instance, but, in
the words of Luxmoore,
L.
J.,
“there
is
no canon of construction which
denies to
a
testator the privilege of indulging, to some extent, in tautology”
(p.
476).
In
Re Mylne
(1941,
I
All
E.R.
405)
Farwell,
J..
found no diffi-
culty in holding that persons engaged in evangelistic work, including
missionaries, active or retired, and continuing Christian workers were good
objects of a charitable trust, not on the ground of the relief of poverty
but because the trust was for the advancement of religion. In stressing
“the fact that the gift includes retired missionaries may encourage other
people to take up missionary work,” Farwell,
J.,
was using the same
reasoning as that of Bennett,
J.,
in
Re
Forster
(1939,
Ch.
22,
25).
in this
respect a similar case, though not referred to. The point in
Re
Mylne
which was more doubtful was that the trust was confined to those mission-
aries and workers who should
be
Protestants of a certain type of religious
belief, clearly a condition which was not strictly capable of objective
vexifidation. But the case was distinguished from those in which a sub-
jective religious test is the condition of a non-charitable
gift.
As
Farwell,
J.,
said, “a condition by which a person forfeits an interest must
be
con-
strued strictly,” but in the case before himit was “possible for the trustees,
by making inquiries, to ascertain whether
a
particular person is suitable.
The condition may impose some difficulty on the trustees, but
it
is not one
which it is impossible to fulfil.
It
differs from a forfeiture clause.
It
is
merely a question of the trustees making a selection of a class of persons.”
In
Re Mylne
the spiritual requirements were imposed on persons who
were already objects of chanty on account of their calling. All forms of
religious life and practice are not within the legal fold of charityas
is
shown by the well-known decision in
Cocks
v.
Manners
(L.R.
12
Eq.
574).
where a contemplative order of nuns was distinguished from other orders.
This case was referred to but not disapproved of in
Re Ward.
That
it
is
good works rather than faith which equity favours
is
shown by Bennett,
J.’s,
opinion that Mr. Buchman’s Oxford Group is not an object of
a
charitable trust
:
Re
Thackrah
(1939,
2
All
E.R.
4).
a decision which has
not passed uncriticised, e.g., C. de
B.
Murray’s article in
The
Scots
Law
Times,
Sept.,
g,
1939.
Simonds,
J.,
is not alone in thinking that “there is no branch of the
law so artificial or in which
it
is
so
difticult to reconcile conflicting authori-
ties as this question of general charitable intention”:
Re Lawton
(1940,
Ch.
984, 986).
Residuary estate
had
been left to the trustees of a parish
church to be used for any
purposes
authorised by the trust deed under
I34
MODERN LAW REVIEW Nov.,
1941
which they operated; there were not and never had been any trustees
of the church and there was no trust deed. Simonds,
J.,
declared that
“it
is
a
cardinal principle that, where you find a general charitable inten-
tion, the
gift
does not fail by reason of want of trustees,” and, iinding no
general charitable intention in the will, the
gift
failed for uncertainty:
had there been any trustees they might have held the fund for non-
charitable as well as charitable objects. But
Re Lawton
is not in reality
a
case
of
the failure of trustees because the testator did not purport
to
appoint
any;
it
is a case of the non-existence of legatees who,
if
they had
existed, would not necessarily have been trustees holding for exclusively
charitable purposes.
It
falls within the narrow principle which was
affirmed by the
House
of Lords in
Farley
v.
Westminsbr Bank,
Ltd.
(1939,
A.C.
430).
The distinction between a particular charitable intention and
a general charitable intention was also presented to Simonds, J., in
Re
Royce
(1940,
Ch.
514)
when he also complained that it was “a very artificial
distinction.”
It
has at least four different applications, including that of
the
cy-pr2s
doctrine, and has overshadowed the old distinction between
the Substance and the Mode of a charitable disposition, although the two
distinctions are not perhaps quite coincident. In
Re Royce
the presence
of a general charitable intention enabled a
cy-prds
application to be made
of an immediate surplus of a bequest “for the benefit of the choir” of a
named church,
it
being obvious from the beginning that the gift was far
larger than was required by the particular choir. This
is
an almost unpre-
cedented instance of the working of the
cy-pds
doctrine, and there
is
reason for thinking that
Re Royce
is
not in accordance with the reasoning
behind the long line of
cy-pds
decisions:
vide
“The
Cy-prhs
Application
of Surplus Charitable Funds,” by the present writer,
The Conveyancer,
March,
1941,
H.
198-212.
The development of the
cy-p~ds
doctrine has been a conflict between
the common law’s preference for the claims
of
the heir and next of kin
and equity’s leaning in favour of charity. In this conflict between public
and private interests the former have usually been the victors. The opinion
which was championed by Chief Justice Holt, rejected with doubts by
Lord Eldon, and hankered after by some chancery judges was pointedly
expressed by Twisden,
J.,
“who, when a matter was pressed in behalf
of
a
charity that he thought to be against law, replied,
I
like charity well,
but will not steal leather to make poor men shoes”:
Att.-Gen.
v.
Sutton
(I~zI),
I
P.
Wms.
754, 765-766.
That the distinction between a particular and a general charitable
intention may
still
be fruitful of new privileges for chanties is suggested
by Farwell,
J.’s,
explanation in
Re Ward
(1941,
I
All
E.R.
315, 317)
of
his
overruled decision in
Re Diptock
(1941,
I
All E.R.
193,
C.A.;
1940. 3
AU
E.R.
538)-the
“charitable or benevolent objects” case. Farwell, J.,
made plainer than did, perhaps, his original judgment that he “thought
that there was a sufficient general charitable intention disclosed in the
will
as
a
whole
to
justify the reading of the words in question as being
confined to that which
was
strictly charitable.” Farwell, J.%, judgment
in
Re Diplock
is
one of the first occasions on which a “general charitable
intention” has been specifically relied on for the purpose of interpreting
the particular wording of a disposition. In reversing the decision of the
court below,
it
is
not quite clear whether the
Court
of Appeal thought
that
it
would never be possible to employ the notion of general charitable
intention
for the
purposes
of verbal construction. Greene, M.R., could

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