Re Harpur's Will Trusts
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE DONOVAN |
| Judgment Date | 04 July 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0704-2 |
| Date | 04 July 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J0704-2
In The Supreme Court of Judicature
Court of Appeal
The Master of The Rolls
(Lord Evershed)
Lord Justice Harman and
Lord Justice Donovan
THE SOLICITOR-GENERAL (Sir JOCELYN SIMON, Q. C.) and MR BRUCE CLAUSON (instructed by the Treasury Solicitor) appeared as Counsel for the Appellant, H. M. Attorney-General.
MR IAN CAMPBELL, Q.C. and MR J.E. VINELOTT (instructed by Messrs Freshfields) appeared as Counsel for the Respondents, Haswell and Pickering.
MR R. COZENS-HARDY HORNE (instructed by Messrs Freshfields) appeared as Counsel for the Respondents, Plaintiffs.
: By her will dated in the year 1945 Mrs Mary Jane Harpur, who died on the 12th August 1946, disposed of her estate, so far as relevant, as follows. She first gave a number of pecuniary legacies substantially to relations of her husband; she provided that the income of the residue of her estate should be accumulated for a period of 10 years (which would therefore expire in August 1956), and thereafter directed that legacies should be paid to a number of named institutions, of which St. Dunstan's was one and Dr. Barnardo's Homes was another but of all of which it could not be said that they were charitable institutions. That gift was followed by a clause that the receipts of the Treasurers or Honorary Treasurers of the charitable and other Associations should be a good discharge, a formula which reinforces what I have stated, that not all of the Associations were charitable. She then finally made this direction: "I direct my said Executors and Trustees to pay and divide the" rest of her estate "between such Institutions and Associations having for their main object the assistance and care of soldiers sailors airmen and other members of His Majesty's Forces who have been wounded or incapacitated during the recent World wars in such manner and in such proportions as my said Executors and Trustees may in their uncontrolled discretion select and deem appropriato".
The question before the Court is what effect, if any, can be given to that final provision. If no effect can be given to it, then the rest of the estate goes to Mrs Harpur's next of kin. The class of next of kin has not yet been determined. It would not appear from her will that she had any close relatives of her own but Mr Campbell and Mr Vinelott have appeared for two who are admittedly members of the class and, therefore, representative of the whole. It has been conceded for the purposes of the argument that the class of Institutions which I have read, "Institutions and Associations having for their main object", etc., is not one which is presently ascertainable. it is further conceded that although the assistance and care of soldiers, sailors and airmen and other members of the Forces wounded and incapacitated would be a charitable purpose, nevertheless the words used by the testatrix are not apt to confine the Institutions to those which are exclusively devoted to charitable objects. It follows therefore inevitably that unless the Charitable Trusts (Validation) Act of 1954 can be invoiced to save the provision, that provision must, according to the well established law, be held invalid and ineffective. The result is one which I cannot help in some degree deploring, There can be little doubt as to what Mrs Harpur had principally in mind, namely, the assistance and care of soldiers, sailors and airmen wounded or incapacitated in the wars, but it is no less clear that the words she has used do not confine her benefaction exclusively to those objects. As was pointed out in the argument, had the word "main" been omitted or the epithet "charitable" been inserted before the various Institutions and Associations, all would have been well; but unfortunately Mrs Harpur did neither of those things and the question now before us is limited, having regard to the concessions I have mentioned, to the single one: Is this gift within the scope "of Section 1 of the Act of 1954?
In the circumstances as I have stated them, I have felt the strongest inclination, I must confess, if it be possible, to conclude favourably to the Solicitor-General's argument but in the end I have felt compelled to the view taken by Mr Justice Cross in the Court below, though as will appear I diverge in some respects from him in the grounds leading to the conclusion, I confess also that I have found very considerable difficulty in following the language of the 1954 Act, still less of comprehending its true purpose and effect. Some of the sections, particularly Section 3(1), I make no pretence of understanding, but fortunately it is unnecessary in this case for me so to do. It is sufficient for present purposes to read the long title to the Act, sub-sections 1 and 2 of the first section and sub-section 1 of the second section, There was some argument before us as to the extent to which in this case it is legitimate to draw conclusions from the language of the long title, but having regard to the extreme difficulty in the construction of the Act, and especially of finding coherence between Sections 1 and 2, I think it legitimate to draw such inspiration as may be found from the long title. I now read the long title and the three sub-sections I have named. The long title is: "An Act to validate under the law of England and Wales, and restrict to charitable objects, certain instruments taking effect before the sixteenth day of December, nineteen hundred and fifty-two, and providing for property to be held or applied for objects partly but not exclusively charitable". I need not read the rest. Section 1, sub-section 1 is thus: "In this Act, 'imperfect trust provision' means any provision declaring the objects for which property is to be held or applied, and so describing those objects that, consistently with the terms of the provision, the property could be used exclusively for charitable purposes, but could nevertheless be used for purposes which are not charitable". Sub-section 2: "Subject to the following provisions of this Act, any imperfect trust provision contained in an instrument taking effect before the sixteenth day of December, nineteen hundred and fifty-two, shall have, and be deemed to have had, effect in relation to any disposition or covenant to which this Act applies (a) as respects the period before the commencement of this Act, as if the whole of the declared objects were charitable; and (b)" — it is this paragraph which, if at all, applies in the present case — "as respects the period after that commencement as if the provision had required the property to be held or applied for the declared objects in so far only as they authorise use for charitable purposes". Section 2, sub-section 1 reads: "Subject to the next following sub-section, this Act applies to any disposition of property to be hold or applied for objects declared by an imperfect trust provision, and to any covenant to make such a disposition, where apart from this Act the disposition or covenant is invalid under the law of England and Wales, but would be valid if the objects were exclusively charitable".
This much is clear, I think, and it is important. The Act seeks to give, though only for a limited time, a specified statutory effect to what are called (and defined as) imperfect trust provisions in so far as such imperfect trust provisions would, apart from the Act, be invalid by the ordinary law. At a first reading of the first section one would suppose that an imperfect trust provision would be a provision that would be so far imperfect as to be invalid or unenforceable at law. But notwithstanding the choice of the epithet "imperfect", it is I think also clear from Section 2(1) that this would be a wrong interpretation, for Section 2(1) shows that what is called an imperfect trust provision may none the less be not so imperfect as to be invalid. Why Parliament followed the devious course of adding Section 2 (the language of which in some respects deviates from Section 1 and tempts me to suspect a different authorship) to the earlier section when the result aimed at could, I should have thought, have been much more easily and simply achieved, it is not for me to say. But so it is; and the forceful argument of the Solicitor-General rests fundaments tally upon the interaction of the two sections. For it is said by him that the Judgment appealed from has this basic defect that its necessary result is to give no effect whatever to Section 2, sub-section 1.
The next thing to be noticed about the Act is the emphasis in the long title and throughout Section 1 on purposes or objects. It refers to provisions for the application of property for certain purposes. In the present case we are concerned on the face of it with something different — with a provision not to apply the estate for certain purposes but to distribute it among certain Institutions, It is the argument of the Solicitor-General that, substantially speaking, a gift to Institutions is the same thing as a gift for purposes. It is no doubt broadly true (though there may be exceptions in the case of Institutions incorporated by Royal Charter) that Institutions, a unlike natural persons, only exist for the execution of the purposes or objects ordained by their constitutions. So by way of example, a gift to an institution such as St. Dunstan's or Dr. Barnardo's Homes is in truth, says the Solicitor-General, a provision for the purposes for which St. Dunstan's or Dr. Barnardo's Homes exist and are carried on, those Institutions being merely the instruments for the execution of the purposes. It is, therefore, said that a gift such as the present is within a fair reading of Section 1, sub-section 1 and is an imperfect trust provision.
The construction suggested would be a somewhat...
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