NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00370.x |
| Published date | 01 July 1956 |
| Date | 01 July 1956 |
NOTES
OF
CASES
THE
APPLICATION
OF
TEE
CY-PRPS
PBINCIPLE
TO
CASES
OF
FAILURE
OF
CIIARITABLE OBJECT
THE recent decision of Danckwerts
J.
in
Re
Hanbey’s
Will
Trusts
has raised a number of unfamiliar points
on
the application of the
cy-prbs
principle to charities where the named object has come to
an end but
a
gift over has been provided for the event of the failure
of the named object. The facts were that by a will, taking effect
in
1786,
a testator had bequenthcd
a
sum
of
money
to trustees to
apply the income in perpetuity to certain charitable (educational)
purposes, specified with great particularity, with
a
gift
over
to
Christ’s Hospital in the event of the trustees’ failure to apply the
income in the precise manner specified by the will.
For
some
thirty-eight years the trustees hnd been unable to carry out the
prescribed trusts and ultimately they sought the directions of the
court. Danckwerts
J.,
after considering the authorities quoted to
him, held that he had power to direct a scheme regulating the trusts
notwithstanding that such
a
scheme might effectively defeat the
gift over. However, taking into account the long-standing
breaches of trust and the difficulty of settling a suitable scheme,
the judge refused, in the exercise of his discretion, to direct a
schcme and held that the gift over should take effect.
There can be little doubt of the correctness of the ultimate con-
clusion to which the judge cnme, in holding that the gift over took
effect; but the assertion of jurisdiction to direct a schcme
nt
all in
such circumstances, seems to be
n
new departure. In principle
a
cy-prds
scheme
is
only applicable in such a case where
it
is
impossible to carry out the donor’s directions2;
if
the donor’s
directions can be effected they should be effected, and the gift over
is just as much part of the donor’s directions as the first gift
directed; if thcn the gift ovcr is practicable
it
should be carried into
effect.
Now
it is well scttled that upon the subsequent failure of a
charitable objcct in which a gift has vested, the court has juris-
diction to direct
a
schcme
for
the future application of the fund
J;
though it may be that a gcncral charitable intention must be shown
before the jurisdiction can bc in~okcd.~ This was bnsically the line
1
[1955]
3
All
E.R.
874; [195G]
2
W.L.R.
03;
[1956]
Ch.
264.
2
Plrilpott
v.
St.
CCOrgC’s
Hospital
(1650)
27
Beav.
107;
.Re Weir’s Hospital
[lOlO]
2
Ch.
124.
J
Spiller
v.
Maude
(1881)
32
Ch.D.
158n.;
Pease
v.
Paltinson
(186G)
32
Ch.D.
154;
Re
Shin
[l69l]
2
Ch.
236.
Re
Welsh Hospital Fund
[lOZl] 1
Ch.
655;
Gibson
v.
South American
Sloros
[19601
Ch.
177;
Re
North
Dcaon
Relief
Fund
Trusts
[lo531
2
All
E.R.
1038;
1
W.L.R.
EGO.
Vor..
19
405
27
406
THE
MODERN
LAW
REVIEW
VOL.
19
of authority upon which bplicit reliance wag placed in
Re
Ilanbey;
but in all these cases the gift hnd been absolutely vested in the
trustees,
so
thnt on failure
of
the object, the fund was beneficially
bona
vacantia.
In none was there the particular factor of difficulty
-the gift over-which faced the judge in the present case.
Where there is a gift over from one charity to another, the event
upon which the gift over takes effect need not be limited
SO
as to
occur within the perpetuity period5 Since there can be no question
of invalidity under this head,
it
would seem that the only qucstion
which should face the judge in such a case is:
"
Has the named
event taken place?
"
If
so,
it
must follow that (unless thc second
beneficiary also fails) a scheme can only be applicable until the
event takes place. This proposition receives some support from one
of the cases quoted to Danckwerts
J.,
Re Upton Warren
(Parish),d
a case in which a scheme was directed to deal with the application
of accumulated arrears of income, the first gift not having failed
and the event giving rise to the operation of the defeasance clause
not having yet taken place.
If,
however, the above proposition be correct (as is submitted),
it covers only a case
of
surplus and not
a
case
of
failure; the only
sum which can be freed is the income pending the happening of the
event, for the capital
is
still tied. In such a case there is
no
qucstion but that a general charitable intention must be shown
before a
cy-prbs
application can be dire~ted.~
If
there is
no
general
charitable intention there would be a resulting trust to the donor's
next-of-kin pending the taking cffcct of the gift over; and
if
such
a hiatus were possible difficult questions
of
perpetuity would arise.*
Could it be said then that there was
a
general charitable intcn-
tiou in the present case? On principle,
it
should be doubted,
in
view of
(1)
the precise particularity of the specified object
';
and
(2)
the very existence
of
the gift over itself.1°
On
the other hand
the fact that the first gift was potentially a perpetual gift may be
regarded as fortifying a general charitable intention." However
this may be, the existcnce
of
a general charitable intention is vital
since without
it
there can be
no
jurisdiction to direct
a
scheme.
No
mention was made of charitable intention, whether particular
or
general, in
Re Hanbey's
Will
Trusts (supra).
Moreover, the cases quoted to the court
l2
hardly assist. They
5
Christ's Ifoapital
v.
Grainger
(1840) 1
Mac.
&
(3.
460;
Re Tyler
[1801]
3
Ch.
6
(1833)
1
My.
&
K.
410.
7
Clephane
v.
Lord
Prooost
of
Edinburgh
(1867)
L.R.
1
Sc.
&
Div.
417;
Re
8
Re
Johnson's
Trusts
(1866)
L.R.
2
Eq.
716;
Worthing Corporation
v.
Heather
9
Russell
v.
Kellett
(1855)
9
Sm.
&
Qiff.
264.
252.
Campden Charities
(1881)
18
Ch.D.
310.
[1906]
2
Ch.
632.
Cj.
Re Thetford
School
(1609)
8
Co.Rep.
1Mb.
10
Re Talbot
[1933]
Ch.
896,
per
Mnughnm
J.
nt
p.
002.
11
Cf.
the
judgment
of
Snrgant
L.J.
in
Re
Monk
[lea71
9
Ch.
107
ot
p.
all.
12
From
Rolsbury'n
Lotus
of
England.
3rd ed.,
vol.
4,
p.
299.
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