Re Cole.; Westminster Bank Ltd v Moore

: I will ask Lord Justice Romer to deliver. first Judgment.

This is an appeal from an Order of Mr. Justice Harman, dated the 5th December, 1957, whereby he made a declaration as to the manner in which certain charges created in favour of the Westminster Bank Limited by the tester during his lifetime should be borne and a further declaration that a specific devise contained in clause 6 of the testator's Will failed and fell into residue. The Defendants the nast Sussex Country Council appeal against the second of these declarations, and a cross-notice of appeal has been served by the Defendant moore against the first declaration. The cross-notice only arises for decision if this Court reverses the Judge's declaration as to the invalidity of the specific devise, and I accordingly propose to deal with that question first.

By his Will dated the 24th December, 1952, the testator appointed the Westminster Bank Limited, the Plaintiff H.T. Philcox and the defendant F.A. Moore to be the executors and trustees thereof; and after making certain bequests not material to the present appeal provided by clause 6 of his will as follows: "Idevise my freehold houses 'St. Anton' Heads Road seaford aforesaid and 'Kinninghall' Meads Load seaford aforesaid unto ther East Sussex County Council Upon trust to apply the income arising therefrom or from any substituted investments of the proceeds of sale of the said dwellinghouses for the general benefit and general welfare of the children for the tine being in Southdown House Firle Road seaford aforesaid as a small token of my appreciation of the work carried on at ouch house. If however South-down House shall be sold or cease to be utilised as a home for children then I direct that the East Sussex County Council shall apply the income from the said dwellin chouses or any substituted investments at the Council's absolute discretion for the benefit of the children in other homes for children carried on under the auspices of the East Sussex County Council I desire that the Superintendent for the time being of Southdown House should heconsulted with a view to ascertaining hie views as to the allocation of the before mentioned income".

By clause 7 of his Will the testator gave his residuary estate on the usual trusts for sale and conversion and directed that after payment thereout of all his just debts funeral and testamentary expenses the same should be held upon trust for the Defendant F.A. Moore absolutely.

The testator died on the 5th April, 1955, and probate of his Will was granted to the Plaintiffs and the Defendant Moore out of the District Probate Registry at Lewes on the 28th September, 1955.

On the 16th July, 1957, the Plaintiffs issued an originating summons asking for directions as to the charges created by the testator as here in before mentioned and also asking whether the specific devise contained in clause 6 of the will was a valid charitable devise or whether it failed and fell into residue.

The first point which arises on this second question is whether the devise in clause 6 for the general benefit and general welfare of the children for the tine being in southdown House was intended to enure for the benefit only of the children who were in the home when the testator died or for the benefit of future inmates from time to time as well. It is perfectly clear to me that the latter is the true view. The words "for the time being" sufficiently show this in themselves, but when one adds the consideration that the testator was directing the application of income and not of capital, and the fact that the Home was only intended to provide temporary accomodation for the children received in it, no room, in my judgment, is left for doubt.

On this view of the matter, then, the devise fails unless it was for a charitable purpose. The purposes for which South-down House is carried on are stated in the affidavit of Mr. H. S. Martin, who is the Clerk of the East Sussex Council. In his affidavit he says: Southdown House…. is a home provided and maintained by the Council pursuant to the Children Act 1948 section 15 for the accommodation of children in their care. Such children are either children received into the core of the Council under Section 1 of the said Act or children committed to their care under the Children and Young Persons Act, 1933, Sections 57, 52, 63, 64 (as amended) 66 and 67 to which sections of the said Acts I respectfully ask leave to refer.

The said home provides accommodation for up to thirty children of either sex between the ages of five and fifteen. The said home is used as a short-stay and intermediate home, that is to say, as a home for children requiring to be cared for for periods ranging from a few weeks to two years or thereabouts, and is not intended to serve as a permanent home for young children who are likely to remain in the Council's care until they reach the age limit under the Children Act 1948 of eighteen years or are otherwise likely to be in the Council's care for long periods.

The staff of the said home consists of a married couple who are in charge of the said home and two female assistants, who all reside in the said home, together with non-resident domestic staff. The children in the said home attend the usual local schools, No more education is provided in the said home than would be provided by parents in a normal domestic home, to which it is the object of the Council to make the said home approximate as nearly as possible.

"The most of providing and maintaining the said home is pro- vided partly from grants out of moneys provided by Parliament, partly from the general rate fluid of the Administrative County of East Sussex and partly from contributions received from parents under the Children Act 1948 sections 23 and 24, and the Children and Young Persons Act 1933 Section 86, as amended".

In order to ascertain the classes or categories of children whom the Council have to receive into the Home reference must be made to the Children Act, 1948, and the Children and Young Persons Act, 1933. By section 1 of the former Act local authorities have to receive children under 17 (though the age limit in Southdown is 15) who have no parent or guardian or whose parents or guardian have abandoned them; those whose parents or guardians are for various reasons prevented from providing for their proper accommodation, maintenance and upbringing and in either case if it appears to the local authority that its intervention is necessary in the interests of the welfare of the child' Section 11 provides that Part II of the Act relates to the powers and duties of local authorities in relation to children received by them into their care under section 1 of the Act and (among others) children who by as Order of any Court under the 1933 Act have been comitted to their care as a fit person. By section 15 local authorities have to provide homes as therein mentioned. Under section 57 of the 1933 Act any Court by or before which a child or young person is found guilty of an offence punishable in the case of an adult with imprisonment shall have power to commit him to the care of "a fit person" (which, by section 76, includes a local authority). By section 62 juvenile courts may commit a child or young person in need of care and protection to the care of "a fit person". The expression "in need of care and protection" in relation to children is defined by section 61 of the Act and includes (among others) those who are exposed to moral danger or are beyond the control of their parents and those against whom certain offences have been committed (see also sections 63 and 64). I think that the sections to which I have referred sufficiently indicate the kind of children who can and must be received into such homes as Southdown House; and, in relation to such children, the local authority (by virtue of section 75 subsection 4) is to have the same rights and powers and be subject to the same liabilities in respect of their maintenance as if it were their parent.

Mr. Buckley, for the Attorney-General, contended before us, as he had contended before the learned Judge, that the devise under clause 6 of the Will is within the spirit and intendment of the preamble to the Charitable Uses Act, 1601. The learned Judge rejected the contention. According to the note we have of Mr. Justice Herman's Judgment, the learned Judge said that the children referred to in the relevant statutory provisions were not "impotent" nor "orphans", that the reference in the preamble to the "paymert of fifteens" had no application and that Southdown House was not a "house of correction". Mr. Buckley submitted to us that the gift should be upheld on the ground that the children in question are either orphans or in a position similar to that orphans in that, having regard to their peculiar circumstances, they need care and attention which they cannot. provide for...