Re Broadbent; Imperial Cancer Research Fund v Bradley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,MR JUSTICE SUMNER |
| Judgment Date | 17 May 2001 |
| Neutral Citation | [2001] EWCA Civ 714 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2000/0171 |
| Date | 17 May 2001 |
[2001] EWCA Civ 714
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
HIS HONOUR JUDGE MADDOCKS
(SITTING AS A HIGH COURT JUDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lady Justice Ardenmr Justice Sumner
In The Matter of the Will of 23rd July 1987 of Clara Broadbent Dec'd
Case No: A3/2000/0171
Miss Sonia Proudman QC (instructed by Denton Wilde Sapte, One Fleet Place, London EC4M 7WS for the Appellant)
Mr Peter Smith QC & Mr Mark Halliwell (instructed by Hayton Winckley, Stramongate House, 53 Stramongate, Kendal, Cumbria, LA9 4BH for the Respondents)
The Appeal
This is an appeal with the permission of the judge from an order made by HHJ Maddocks, sitting as a judge of the Chancery Division of the High Court at Liverpool on 17 December 1999. He held that a bequest of an equal third share of residue in clause 5 (b) of the will of the late Clara Broadbent (Mrs Broadbent) has not failed, but is held on trust for the trustees of a Declaration of Trust dated 5 February 1913 (the 1913 deed)
".to be held by them upon the trusts in clause (ix) thereof other than the alternative trust to apply moneys in such other religious or charitable purpose as the Trustees thereof shall in their absolute discretion think proper."
The order was made in proceedings brought by the National Westminster Bank as sole executor of Mrs Broadbent's will. By an Originating Summons dated 28 January 1999 the determination of the court was sought on the question whether the gift in clause 5 (b) failed and, if so, upon what trusts the share is held.
This appeal is by two research charities named as residuary beneficiaries in clause 5 (a) and (c) of the will. By virtue of an accruer provision they would be entitled to take the disputed share of residue in the event of its failure. They are the Imperial Cancer Research Fund and the Arthritis and Rheumatism Council for Research (now called the Arthritis Research Campaign.) Miss Sonia Proudman QC appears for them. The trustees of the 1913 deed are the respondents. They are represented by Mr Peter Smith QC.
The Will and Probate
Mrs Broadbent made her will on 23 January 1987. After appointing the Bank as the sole executor and trustee of her will, she made a number of small pecuniary legacies and directed that the trustees should hold her residuary estate.
"upon trust for the following charities in equal shares: -
a. Imperial Cancer Research Fund
b. The Vicar and Church Wardens of St Matthews Church
Stalybridge for the general purposes of such Church but with the request that the money be used primarily for the upkeep of the fabric of the Church
c. The Arthritis and Rheumatism Council for Research
AND I DIRECT that the receipt of the person appearing to the Bank to be the Treasurer or other proper officer for the time being of each of the above named charities shall be a full discharge to the Bank for the
legacy given to that charity
AND I FURTHER DIRECT that should any of the charitable bequests in this clause fail the part so failing shall accrue to the remaining charity or charities and if more than one in equal shares"
Mrs Broadbent made a codicil on 16 November 1992 revoking some of the legacies, but in other respects confirming her will. It is common ground that Mrs Broadbent's will and codicil are to be treated as one document bearing the date of the codicil: Re Reeves [1928] 1 Ch 351.
Mrs Broadbent died on 20 August 199Probate was granted to the Bank on 23 September 199The bulk of the estate falls into residue. The net value of the estate amounts to £1,142,514m, so that the two research charities stand to gain substantial sums if the gift in clause 5 (b) fails.
Factual Background
The following events have given rise to doubts about the validity of the gift in clause 5(b).
St Matthew's Church was formerly based in an iron framed pre-First World War building with asbestos cladding and a tiled roof. Its condition deteriorated over the years. The size of the congregation dwindled. In 1990 the trustees, in whom the building was vested on trusts declared in the 1913 deed, decided to close the church for worship and to sell it in exercise of an express power to do so in clause (ix) of that deed. There was a collapse in the property market and the contract for sale was not made until 5 July 1994. The sale price was £37,125. The building was subsequently demolished and the site was developed for residential purposes.
The proceeds of sale were received by the trustees of the 1913 deed, which declares the trusts of the charity affecting St Matthews Church, the church building and the proceeds of sale of the building. The deed is headed
"DECLARATION OF TRUST
ST. MATTHEW'S STALYBRIDGE"
The deed provided that the building erected on the plot of land, which had been acquired in December 1911, was to be used and occupied as a Church Mission Hall, Chapel of ease or other building for public religious worship and Sunday Schools in connection with the Church of England and for public meetings, social gatherings and other purposes of a like nature, but not for political meetings. The Minister, Lay Reader or other lay worker who should minister or exercise any function in the building was required to testify in writing to the Trustees "his attachment to the Protestant Evangelical Standards of the Church of England and that he will conduct the services in the said building with simplicity." The pews had to remain unlet, free and unappropriated. The Trustees had power to receive any moneys contributed to any endowment fund for the building for its enlargement and repair and to invest. It was declared in clause (ix) that
"the Trustees shall have power to sell the plot of land and the buildings for the time being erect and standing thereon or any part or parts thereof at any time if in their judgment it is deemed expedient or necessary so to do but so nevertheless that the proceeds shall either be applied in the purchase of another plot of land or the purchase or erection of another iron church or other buildings which when acquired shall be conveyed or transferred to the Trustees and shall be held by them upon the Trusts hereof or in such other religious or charitable purpose as the Trustees shall in their absolute discretion think proper."
St Matthew's is a Mission Church, not a parish church. It has no vicar or church wardens. It does not appear to have been consecrated, though it was accepted into the Church of England faith, as evidenced by a Sacrament of Confirmation and Service of Union conducted at St Matthew's Church by the Bishop of Chester on 8 September 1946. A Lay Reader was licensed on the same occasion. The Church was located in the parish of the nearby Holy Trinity and Christ Church.
Mrs Broadbent and her husband lived close to St Matthew's, which they had attended for many years. Mr Broadbent was a Sunday School teacher and was chairman of the trustees from 1977 until his death in 1986. Appellants' Submissions
The two research charities contend that the gift in clause 5 (b) has failed. It is argued that the gift was only intended to take effect if St Matthew's was still functioning in the iron framed building at Mrs Broadbent's death. It had ceased to function in that building before she died. Mrs Broadbent was well aware that the building had been closed for worship and later sold. The gift could not take effect as the continued existence and use of that particular building was essential to its validity. The lapsed share accordingly accrued to the two other charities in equal shares.
These contentions, which were rejected by the judge, were skilfully developed by Miss Proudman QC in this court. She contended that a number of factors supported a construction of the gift which confined it to the work of the Church of England at, from and in the name of the specified existing building called St Matthew's Church. The essence of the argument was neatly encapsulated in the submission that this was a trust for premises, not for purposes.
The precatory provision for the upkeep of the fabric was relied on as an indication that Mrs Broadbent's mind was directed to aid for the work of the church, as conducted at and from a particular building, especially as she knew that the building was in a bad state of repair.
It was also contended that the accruer clause was included in the will in the knowledge that the church was likely to close as a result of dwindling congregations. It was said to indicate that Mrs Broadbent thought it necessary to make express provision for the eventuality that closure would occur and cause the gift to fail. It could only have been included to cover the possible failure of the gift to the church. Such a clause was not necessary in the case of the research charities.
Next, the trusts of the 1913 deed were inapplicable to this gift. Those trusts did not fit well with the expression " the general purposes" of St Matthew's Church in clause 5 (b). The trusts of that deed were principally concerned with the particular building. They could not be equated with the "general purposes of such Church." As her husband had been chairman of the trustees Mrs Broadbent knew of the existence of the deed . Yet she gave the share of residue to the "Vicar and Church Wardens," which indicated that she had the specific church building in mind rather than the trusts on which the proceeds of sale of it were held.
The cumulative effect of these points was that this was...
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