Re Smith. Public Trustee v Smith
| Jurisdiction | England & Wales |
| Date | 1932 |
| Year | 1932 |
| Court | Court of Appeal |
Charity - Bequest of Residue “unto my country England” - Validity - Transfer of Residue to Person appointed by Crown under Sign Manual - Form of Order.
A testator, who died in 1930, by his will gave his residuary estate “unto my country England for — own use and benefit absolutely”:—
Held, that residuary gift was a valid gift for charitable purposes and that the residuary estate must be transferred to such person as His Majesty should direct under his sign manual.
APPEALS from a decision of Bennett J.F1
The testator, Theodore Wynford Smith, by his will dated January 13, 1917, appointed the Public Trustee to be the sole executor thereof and, after directing that his debts and funeral expenses should be paid by his executor, provided as follows: “I give devise and bequeath all my estate and effects whatsoever and wheresoever both real and personal whether in possession or reversion remainder or expectancy unto my country England to and for — own use and benefit absolutely.”
The testator died on April 23, 1930, and his will was proved on August 6, 1930.
A summons was taken out by the Public Trustee for the determination of the question whether the residuary gift “unto my country England” (a) constituted a valid charitable gift, or (b) operated in favour of His Majesty's Treasury, or (c) was void.
Bennett J. held (following In re TetleyF2), that the gift was not a gift which must necessarily be confined to charitable purposes, and it was therefore void. He also held that, in using the phrase “unto my country England,” the testator could not be clearly regarded as having intended that the bequest should operate in favour of His Majesty's Treasury; and that the residue was consequently undisposed of and devolved as on an intestacy.
From this decision there were two appeals, by the Attorney-General and the Solicitor-General respectively.
The appeals were heard on October 26, 27, 28, 1931.
Stafford Crossman for the Attorney-General. The question in this case is whether a testator can by his will make a valid charitable bequest to the nation. The gift here is “unto my country England.” That it is submitted is a good charitable gift, and as there is no interposition of trustees it should be administered by the Crown under the sign manual for charitable purposes. The case is substantially the same as Nightingale v. GoulburnF3, where a bequest “to the Queen's Chancellor of the Exchequer for the time being, to be by him appropriated to the benefit and advantage of Great Britain,” was held to be a valid charitable bequest. It is well settled that a charitable gift will not fail for want of a trustee. On construction it is submitted that the gift in the present case is a gift in aid of the National Exchequer, and can only be applied in relief of the taxes. If that is so, the gift comes within the words “other taxes” in the preamble to the Statute of Elizabeth.
[LORD HANWORTH M.R. referred to Commissioners for Special Purposes of Income Tax v. Pemsel.F4]
The natural construction of the gift is that it is a gift to the inhabitants of England. If it be admitted that it is a gift to the community effect can be given to it only by applying it in relief of the taxes of the country.
Gifts to a parish, a county, or a city have been held to be good charitable gifts: West v. KnightF5; Attorney-General v. Lord LonsdaleF6; Mitford v. ReynoldsF7; Attorney-General v. WebsterF8; Goodman v. Mayor of SaltashF9; In re Christchurch Inclosure Act.F10
If a gift for the benefit of the inhabitants of a town, or of a city, or of a county is charitable, it is difficult to see why a gift to a country should not also be charitable, and the above cases are, it is submitted, authorities that such a gift is charitable.
In Newland v. Attorney-GeneralF11, where there was a bequest of stock “to His Majesty's Government in exoneration of the national debt,” the Lord Chancellor directed it to be transferred to such person as the King, under his sign manual, should appoint.
In determining whether a gift is charitable, regard cannot be had to the position held by the trustee. Thus a gift to the vicar of a parish for “parochial institutions or purposes” was held to be invalid: In re Stratton.F12
Bennett J. was influenced in his decision in this case by certain dicta of Younger L.J. in In re TetleyF13 in the Court of Appeal, and of Lord Cave in the same case in the House of Lords, sub nom.: Attorney-General v. National Provincial and Union BankF14, but those dicta cannot be taken as overruling the long line of previous decisions. It is submitted, therefore, that Bennett J. decided the present case on those dicta in Tetley's caseF13 and overlooked the decision in Nightingale v. Goulburn.F15
A. Andrewes-Uthwatt for the Solicitor-General. I adopt the argument put forward on behalf of the Attorney-General that the gift is a valid charitable bequest.
Having regard to the constitution of this country it is submitted that the Crown is the proper person to take this gift.
Wherever you find an act of national activity it is carried out in the name of the Crown. The gift here is to His Majesty, not as a personal gift, but in right of his Crown.
[He referred to the
Wilfrid Hunt for next of kin. The decision of Bennett J. was right. The gift in question is equivalent to a gift “for the benefit of my country England,” and is void for uncertainty. A gift for certain specific purposes in a locality may be good, but not all purposes for the benefit of a country are necessarily charitable. The first question therefore to be decided is whether the gift here is charitable. In In re TetleyF16 Warrington L.J. said with regard to a gift for “patriotic” purposes: “the real question is whether the word ‘patriotic’ has such a limited meaning that it excludes every object or purpose which is not ‘charitable’ within the legal definition of that term. If it does not do so, but includes objects which are not charitable within the legal definition, then the gift for patriotic objects and purposes would not be a good gift, but would be void for uncertainty.” So here the gift “to my country England” might include purposes which were not charitable.
[LORD HANWORTH M.R. We have to bear in mind what was said in Nightingale v. GoulburnF17 and by Lord Selborne in Goodman v. Mayor of Saltash.F18]
Nightingale v. GoulburnF17 is inconsistent with a number of cases which have been decided by the House of Lords in recent years.
In Inland Revenue Commissioners v. Yorkshire Agricultural SocietyF19 Lawrence L.J., referring to the fourth class of Lord Macnaghten's well known classification of legal charities in Pemsel's caseF20 said that he must not be understood as asserting that every purpose of public general utility was necessarily charitable in the legal sense.
A gift for the general purposes of a community is void for uncertainty.
[LAWRENCE L.J. I cannot see the distinction between a limitation to a parish and a limitation to a country.]
A bequest for public purposes to be selected by a third party, though limited to a particular locality, is void for uncertainty: Houston v. Burns.F21
A trust which is not charitable cannot be converted into a charity by limiting the area in which it is to operate, though such limitation may prevent a charitable trust from being avoided for vagueness and uncertainty: In re Gwyon.F22 See also In re DavidsonF23; In re Friends' Free School.F24
[LORD HANWORTH M.R. Do you say that a gift to the inhabitants of a particular district is bad?]
Yes.
H. F. F. Greenland for other next of kin adopted the same argument.
J. H. Stamp for the Public Trustee.
Stafford Crossman in reply. In Houston v. BurnsF21 the testatrix had directed her trustees to apply the residue of her estate “for such public, benevolent or charitable purposes” in connection with a particular parish as they should think proper. There was therefore no gift until the trustees had selected the objects.
[LORD HANWORTH M.R. referred to Blair v. Duncan.F25]
That was really a similar case to Houston v. Burns.F21
Oct. 28. LORD HANWORTH M.R. On January 13, 1917, Theodore Wynford Smith, of 5 Palace Gardens Mansions, Notting Hill Gate, and Newton Abbot, in South Devon, made his will. On April 23, 1930, he died, and his will was duly proved on August 16, 1930. The will is quite short. He directed the payment of his funeral and testamentary expenses and all his just debts, and then he bequeathed “all my estate and effects whatsoever and wheresoever both real and personal whether in possession or reversion remainder or expectancy unto my country England to and for — own use and benefit absolutely,” and he appointed the Public Trustee to be his executor. We are told that the will was made upon a printed form, and that this accounts for the grammar leaving something to be desired, though the sense is not difficult to gather.
We have to construe the will, and it is said that that bequest “unto my country England for — own use and benefit absolutely” is so vague as to be void for uncertainty, and that it cannot be held to be a charitable bequest so as to take it out of the rule against perpetuities, and therefore the will is ineffective. It is noticeable that it is an out-and-out gift without any conditions at all, “unto my country England for — own use and benefit absolutely.” The Court leans in favour of making the testamentary dispositions of a testator effective if possible within the limitations...
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