Re De Carteret. Forster v De Carteret

JurisdictionEngland & Wales
Date1933
Year1933
CourtChancery Division
[CHANCERY DIVISION] In re DE CARTERET. FORSTER v. DE CARTERET. [1932. D. 593.] 1932 June 21, 22. MAUGHAM J.

Charity - Will - Trust for “providing annual allowances of forty pounds each to widows or spinsters in England whose income otherwise shall not be less than eighty or more than one hundred and twenty pounds per annum” - Preference to be given to “widows with young children dependent on them” - Valid Charitable Trust - Statute of Elizabeth, 1601 (43 Eliz. c. 4).

A testator bequeathed a sum of money to trustees upon trust to invest it and to use the income of the investments “in providing annual allowances of forty pounds each to widows or spinsters in England whose income otherwise shall not be less than eighty or more than one hundred and twenty pounds per annum ……” The provision continued: “…. preference shall be given to widows with young children dependent on them ……”

Held, that the provision was in substance for widows of small means with young children dependent on them and created a valid charitable trust.

In re Gardom [1914] 1 Ch. 662 and In re Clarke [1923] 2 Ch. 407 followed.

Spiller v. Maude (1886) 32 Ch. D. 158n and In re Lacy [1899] 2 Ch. 149 considered.

ADJOURNED SUMMONS.

By clause 5 of his will dated June 5, 1931, the Right Reverend Frederick George Cecil de Carteret, formerly Bishop of Jamaica (hereinafter called “the testator”), provided: “I bequeath the sum of seven thousand pounds free of duty to Percy Forster and Henry Arthur Stevens upon trust to invest the same …. and to use the income thereof in providing annual allowances of forty pounds each to windows or spinsters in England whose income otherwise shall not be less than eighty or more than one hundred and twenty pounds per annum …. preference shall be given to widows with young children dependent on them and in all cases the allowances shall be renewable each year at the discretion of the trustees with due regard to any altered circumstances of the beneficiaries.” By clause 7 the testator devised and bequeathed his residue as to three equal fourth parts respectively to a niece, one of his executors, and a cousin absolutely, and as to the remaining equal fourth part to that executor to be held by him upon the trusts in the clause mentioned. The testator died on January 3, 1932, and by this summons, issued on March 21, 1932, the executors of the will asked (inter alia) whether the trusts declared by clause 5 of the will were good and valid charitable trusts or were void for perpetuity or otherwise.

Hon. Denys B. Buckley for the trustees.

Ronald F. Roxburgh for the residuary legatees. This disposition does not create a good charitable trust, because the trustees can, without committing a breach of trust, apply some of the fund in a non-charitable manner. In the case of institutions where a means test is imposed on the recipients of benefit, it has been held that the fact that the institutions do not cater for the poorest of the poor is not a reason for holding gifts to the institutions to be non-charitable. There are cases where gifts for the benefit of widows and orphans have been held to be for the benefit of poor widows and children. But in that class of cases there has never been any means test, and therefore that class of cases does not apply to the present case. The objects which the will in the present case seeks to benefit are not necessarily charitable. There is nothing in the personality of the trustees to indicate a charitable intention, and the persons to receive benefits are not described as “deserving” or “needy” or by any of the other words which have been relied upon when there is no means test. The test whether the disposition does or does not create a good charitable trust lies in the answer to the question whether, if the trustees were proposing to apply the income of the fund to non-charitable objects, the Attorney-General could successfully apply to restrain them from doing so. In In re EstlinF1 it was held that a woman who had to pay 10s. a week to the “home of rest” in which she stayed was not “poor.” People with an income of 80 l. a year are not “poor persons”: see Trustees of the Mary Clark Home v. AndersonF2 and In re Clarke.F3 There is another class of cases, summarized in In re DudgeonF4, in which words indicating distress of some kind, and nothing else, have been held to show that the intention was to benefit poor and deserving people. That line of cases, however, cannot have any application to the present case, because in the present case the eleemosynary test is precisely defined. The Court has no power to make inferences in regard to a matter about which the testator has been precise. Therefore it is not open to the Court to say, in the present case, what persons are meant within the limits of 80 l. to 120 l. The gift is for “widows or spinsters.” In practice it is a gift for widows who have at least 80 l. a year. The object of the gift is presumably to give financial assistance to widows who are presumed to require it because they have young children dependent on them. A gift to “widows with young children dependent on them” is not a good charitable gift. It would be a good charitable gift if it contained the word “poor” before “widows.”

Stafford Crossman for the Attorney-General. This trust is a good charitable trust, because the provision states that the allowances are to be given to widows or spinsters in England, that preference is to be given to widows with young children dependent on them, and that the allowances are to be renewable each year at the discretion of the trustees, with due regard to any altered circumstances of the beneficiaries. In Morice v. The Bishop of DurhamF5 Sir William Grant M.R., in his judgment, said: “Do purposes of liberality and benevolence mean the same as objects of charity? That word in its widest sense denotes all the good affections, men ought to bear towards each other; in its most restricted and common sense, relief of the poor. In neither of these senses is it employed in this Court. Here its signification is derived chiefly from the Statute of Elizabeth. Those purposes are considered charitable, which that Statute enumerates, or which by analogies are deemed within its spirit and intendment; and to some such purpose every bequest to charity generally shall be applied.” The preamble of the Statute of Elizabeth (43 Eliz. c. 4) gives the first of the objects under the statute as the “relief of aged, impotent and poor people.”...

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7 cases
  • Baddeley and Others (Trustees of the Newtown Trust) v Commissioners of Inland Revenue
    • United Kingdom
    • House of Lords
    • 17 February 1955
    ...it might have an income up to £250 a year. The authorities on the subject are collected in Maugham, J.'s decision in In re de Carteret, [1933] Ch. 103, where he come to the conclusion that there might be a good charity for the relief of poverty though the persons to be benefited are by no m......
  • Baddeley and Others (Trustees of the Newtown Trust) v Commissioners of Inland Revenue
    • United Kingdom
    • Chancery Division
    • 17 February 1955
    ...it might have an income up to £250 a year. The authorities on the subject are collected in Maugham, J.'s decision in In re de Carteret, [1933] Ch. 103, where he come to the conclusion that there might be a good charity for the relief of poverty though the persons to be benefited are by no m......
  • Commissioners of Inland Revenue v Baddeley and Others (Trustees of the Newtown Trust)
    • United Kingdom
    • House of Lords
    • 17 February 1955
    ...that there may be a good charity for the relief of persons who are not in grinding need or utter destitution: see In re de Carteret [1933] Ch. 103. But I agree with Mr. Justice Harman, and am content to adopt his words, that relief connotes need of some sort, either need for a home or for t......
  • Commissioners of Inland Revenue v Baddeley
    • United Kingdom
    • Court of Appeal
    • 18 May 1953
    ...submitted, in my view rightly, that "poverty" in relation to charity is a relative term not confined to destitution, and referred to In re De Carteret, 1933 Chancery, 103, as typical of the authorities on this point. He contended therefore that insufficiency of means otherwise to enjoy the......
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