Re Endacott, decd.; Corpe v Endacott
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SELLERS,LORD JUSTICE HARMAN |
| Judgment Date | 12 October 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J1012-1 |
| Date | 12 October 1959 |
| Court | Court of Appeal |
[1959] EWCA Civ J1012-1
In The Supreme Court of Judicature
Court of Appeal
The Master of The Rolls (Lord Evershed)
Lord Justice Sellers and
Lord Justice Harman
Mr J.L. ARNOLD, Q.C. and Mr C.A. SETTLE (instructed by Messrs Biddle, Thorne, Welsford & Barnes, Agents for Messrs C. D. Cann & Hallett, Exeter) appeared on behalf of the Appellants (Third Defendants), North Tawton Parish Council.
Mr B.S. TATHAM (instructed by Messrs Peacock & Goddard) appeared on behalf of the Respondent Plaintiff.
Mr MICHAEL ALBERY, Q.C. and Mr OLIVER LODGE (instructed by Messrs Peacock & Goddard) appeared on behalf of the Respondents (First and Second Defendants) Annie Endacott and James William Endacott.
The Hon. DENYS B. BUCKLEY (instructed by the Treasury Solicitor) appeared on behalf of the Respondent (Fourth Defendant) Her Majesty's Attorney-General.
: By his will dated the 2nd January, 1952, the testator, Mr Albert George Endacott, who died in June 1958, first of all made an appointment of a firm of solicitors as executors and then gave to his son certain buildings and premises conversing a factory, subject to a mortgage, together with certain chattels. He concluded his will by the following residuary gift: "Everything else I leave to North Tawton Devon Parish Council for the purpose of providing some useful memorial to myself, subject to the proviso that if my wife outlives me they must during the lifetime of my wife Day to my wife the interest which may accrue on the capital when properly invested by them"
The question before the Court has been whether that residuary gift to the North Tawton Parish Council can take effect. Mr Justice Danckwerts answered that question negatively. He concluded his Judgment, according to the short note of it: "It is argued that the words for the purpose of providing some useful memorial to myself are 'limiting words'. I think they are very wide words which may well include non-charitable purposes. The nature of the trustee would limit those wider purposes if the parish council's argument prevailed. I declare that the gift fails for uncertainty" That short statement comprehends the various arguments that have been put forward, and the conclusion (let me say at once) is one with which I, for my part, entirely agree.
Mr Arnold, for the parish council, has put his case on two broad distinct grounds. He has first said that the words "for the purpose of providing some useful memorial to myself" merely indicated the reason why the testator had made this gift, but did not, and were not intended to, Impose any obligation upon the parish council, with the result that the gift should be treated as a gift out and out to the parish council.
Alternatively, Mr Arnold has argued on the footing that the words (contrary to his first contention) do Impose a trust or obligation of some kind, though it is to be noted that it has not been suggested that such a trust would offend the rule against perpetuities. But on this alternative basis the argument has diverged thus: First, if the trust be not (upon its true interpretation) a charitable trust, still it is said to be of a public nature and valid and effective, on the ground that it falls within a class of cases which have been referred to as "anomalous" and which were recited by Mr Justice Roxburgh conveniently in his recent decision in the case of Astor's Settlement Trusts, reported in 1952 1 Chancery at page 534. The contention is that this case, falling within that so-called anomalous class, must be treated as effective, being (as I have said) of a public character and being also such that, by appropriate machinery, it can be properly controlled by the Court. It may perhaps be added that, since the gift was one of residue, then if the gift fails, an intestacy follows; and it is, of course, a fair comment to make that in a case of any kind where intestacy follows a particular result, the Court will at any rate think carefully before arriving at such a conclusion.
Then, alternatively, it is said the trusts are in truth charitable, and the argument on this alternative again diverges. First of all it has been submitted that a parish council (and, of course, this particular parish council) is, according to its statutory constitution, limited, at any rate quoad any gifts of this kind which it receives, to charitable functions and activities. If that is right, then it is said that the gift to such a body stamps (and, if necessary, qualifies) the nature of the trusts which are declared and that they should accordingly be taken as being and intended to be within the scope of the (charitable) statutory activities or powers. Secondly (and this was a point particularly put to us by Mr Buckley for the Attorney-General) it is said that, whether the parish council be or be not a body confined in activity to charitable purposes, the true view of the meaning of these vital words "for the purpose of providing some useful memorial to myself" is that they are, as a matter of language, equivalent to a trust for the benefit of the local inhabitants of North Tawton Parish and therefore, according to authority, charitable.
Those, broadly, are the contentions; and I will deal at once and briefly with the first point, namely: Was the language which I have quoted intended to impose an obligation, or was it merely expository? That matter I can deal with briefly because it is, after all, a matter of mere construction. It will therefore be convenient if I state at once what my view is of the meaning of these words, which once more I repeat, "for the purpose of providing some useful memorial to myself": and I say, like Mr Justice Danckxverts, that I do not think that these words were merely expository. In my judgment, they were intended to impose an obligation in the nature of a trust. Although I am anticipating what I shall say about Mr Buckley's argument hereafter, I will at once state that, in my judgment, the object of these words, the trust, the obligation, which the testator intended them to impose was this: that the council were, with his money (and subject, of course, to the obligation about the widow) to create a memorial to himself. I think that his first idea was (and I am not saying that it was either foolish or ignoble) that there should thereafter be in North Tawton, Devon, a manorial to himself; but that the memorial was to have this quality, that it was to be useful; and that I take to mean that it was intended that it should have the quality of utility rather than ornament. Though I do not think aesthetic or ornamental considerations were excluded, still (as I have said) I think his purpose was that the memorial, whatever form it took and whether material or not, should be useful; and, by way again of anticipation of ray answer to Mr Buckley, I cannot see that it was necessarily to be useful only to the inhabitants of North Tawton, Devonshire.
I have stated my view of the construction and that view, of course, answers the first point. It follows that this was not a gift out and out to the North Tawton Parish Council, but I think and hope that my view of the Intention of those words also carries with it the answer to many of the other points that have arisen. I go further and say that in the end of all, as I think, this case should be decided on the grounds that (as I understand) Mr Justice Danckwerts decided It, namely, that here was a specific obligation sought to be imposed, specific in this sense, that it was to be for the purpose of providing a memorial for this testator having the quality of utility, something obviously that could not be confined to charitable purposes, but no doubt having the quality also that it served a public purpose of some kind. I think that that view of the words does carry with it the result, with all respect to the learning which has been put before us,) that to hold it valid would be for this Court to go beyond (and appreciably beyond) the tenor of the decided cases on these difficult subjects.
I come then to Mr Arnold's alternative ground; and it is plain that once you get involved in the considerations which have been put before us, you are in much more troubled waters than in dealing with the first point which I have disposed of. Mr Arnold has quite rightly dream our attention to much learning in the form of case law that has grown up round these somewhat involved questions. All those who practice in this branch of the law; know how infinite is the variety of the decided cases, how extreme sometimes are the refinements, and how apparent on occasions the contradictions which those cases demonstrate; and that is certainly not the least true about those cases dealing with the law of charity. But I wish to acknowledge my indebtedness to Mr Arnold for putting these matters before us as a premise perhaps to my statement that I do not propose in this Judgment, by my reference to cases or Indeed otherwise, to add to the future burden of citation. I am able I think fairly to say that and without, I hope, shirking any Judicial duty, because, in the end of all and on the view I take, the reel question in this case does depend upon the meaning of the words this testator has used according to their ordinary sense, a meaning which I have already tried to state.
It is convenient and perhaps logical to take first the point that the parish council being, it is said, confined to charitable activities so far as is relevant, then this gift must take its character by reflection of that fact. I am unable to accept that argument. The cases, of which re ( Rumball 1956 1 Chancery, 105, in this Court) is I think the most recent, illustrate at any rate this proposition, that gifts to persons holding a particular office, and particularly an ecclesiastical office, if they are not...
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