Re Tacon.; Public Trustee v Tacon
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROMER |
| Judgment Date | 19 December 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J1219-3 |
| Court | Court of Appeal |
| Date | 19 December 1957 |
[1957] EWCA Civ J1219-3
In The Supreme Court of Judicature
Court of Appeal
Lord the Master of the Rolls (Lord Evershed)
Lord Justice Romer And
Lord Justice Ormerod.
In the Matter of the Trusts of the Will Dated the 27th January 1919 and five Codicils of Sir Thomas Henry Tacon Knight deceased
The Hon. DENYS B. BUCKLEY (instructed by the Treasury Solicitor) appeared on behalf of the Appellant (Defendant) the Attorney-General.
Mr. HAROLD LIGHTMAN, Q.C. and Mr. A.C. SPARROW (instructed by Messrs rinch & Fisher, Agents for Messrs Block & Cullingham, Ipswich) appeared on behalf of the Respondent (Defendant) William Harold Scar
Mr. P. S. ROSSDALE (instructed by Messrs, rinch & Fisher, Agents for Messrs. Block & Culiingham, Ipswich) appeared on behalf of the Respondent Plaintiff.
: it is well established that in the case of a gift to a charity (that is, to some body of persons or organization admittedly charitable) where no general charitable intention is present, then (1) if the charity has ceased to exist before the Will comes into operation, the felt lapses; but (2) ii the charity is still in existence at the date mentioned, it is effective as a gift to the extent the interests of the next of kin (or of whoever else take in default of the charitable interest taking effect) are forever excluded notwithstanding the later dissolution or disappearance of the charity. See re Slevin (1891 2 Chancery, page 236). In these respects the "charity" is assimilated to an ordinary individual legatee.
The same principles apply to a gift, not to a named charity, but for some (admittedly) charitable purpose where (again) there is no general charitable intention. Such a gift will wholly fail if the purpose is either so vague or uncertain or so impracticable that; the Court cannot execute it. But the test of vagueness or uncertainty or impracticability is to be applied at the date of the Testator's death; if at that date the disposition is shown to be impracticable (confining myself henceforth to that case) – that is, incapable for any reason of practically initiated or administered then the gift fails altogether and the next-of-kin (or whoever else are entitled in default) take. Per contra, if the charitable gift is not then shown to be "impracticable", the next-of-kin or other interests are forever excluded even though later supervening events defeat precise purpose contemplated by the Testator. In such case the gift will be administered . And in my opinion the onus will (prima facie, at any rate) be upon those seeking to invalidate the charitable gift.
In the case of a charitable gift expressed to take effect immediately on the Testator's death, no great difficulty arises. The difficulty has arisen in the present case because the gift for the purpose of establishing the particular Convalescent Home envisaged by the Testator is, on any view, expressed to take effect upon the happening of a future – and, indeed, a relatively distant – event.
The Rill is that of Sir Thomas Henry Tacon, and it is dated 27th January, 119. His residue was devised and bequeathed (subject to the usual trusts for conversion and investment) that the trustees should stand possessed of the residuary true; fund upon trust during the life of his daughter to pay the thereof to her for her separate use without power of anticipate; during covertures – and there follows then a power to appoint to her husband, which never arose – and from and after her upon trust for such of her issue as she should appoint, and in default of appointment "In trust for all or any of the children or child of my said daughter who being eons attain the age of or being daughters attain that age or marry and if more than in equal shares". There was then a provision as follows: "…and if there shall be no child or other issue of my said daughter living at her death I empower her to appoint by such sum or sums (not exceeding in the aggregate twenty thousand pounds) out of the trust fund" as she should think proper. I pause to observe that that power was in fact exercised. The continued: "And in the event of the failure or determination;.' all the trusts hereinbefore declared and contained as to the whole or any part of the trust fund then the following provisions shall take effect (namely)": there were then certain specific legacies for charitable and other purposes, and finally, "And my Trustees shall stand possessed of the residue of the trust fund the trusts whereof have so failed or determined or of so much thereof as shall not become absolutely vested", etc., in trust for nephews as therein stated. That last-mentioned trust, however, was revoked by the third codicil of the Testator, which is dated 16th January, 1920, and recites and provides thus: "Whereas under my said my Trustees are to stand possessed of the residue of the trust fund the trusts whereof have failed or determined as therein mentioned or of so much thereof as shall not have become absolutely vested or be applied or disposed of under the trusts or powers therein contained or by law vested in my Trustees in trust for my nephews the sons of my brother in equal shares as therein mentioned Now I hereby revoke such last mentioned provisions and declare that my Trustees shall stand possessed of such residue or of so much thereof as shall not become vested" (etc.) "As to Five equal sixth parts thereof" for nephews as therein mentioned; "And as to the remaining one equal sixth part" – and this is the relevant disposition – "In trust to apply the same in purchasing adapting and furnishing and equipped suitable premises at Ipswich Felixstoe or Lowestoft or any or either of those places as a Convalescent Hospital for Nurses or Patients or both preference being given to persons from or adjoining Parishes or members or staff of the East Suffolk Count. Council and the Hospital to be managed and carried, on by the Board of Management of The East Suffolk and Ipswich Hospital if they are willing to undertake it such Hospital to be called 'Sir Thomas Henry Tacon's Hospital'".
The Testator died on the 19th February, 1922, and he left his daughter, the daughter referred to in the Will and Codicil – Maude, who was then, aged 39 years and a spinster. She died, never having been married, on the 22nd October, at the date of the Testator's death, one-sixth part of residue, after allowing for the £20,000 appointed by the daughter, was stated to be worth or to be equivalent to a sum of approximately £16,500.
The principles which I have stated at the beginning of my Judgment (apart from the matter of onus) were not contested by Mr. Lightman, who also conceded that the gift for the charitable purpose with which we are concerned is in form an absolute or "incited" remainder liable to be defeated upon the happening of a specific event, namely, the coming into existence of issue to Maude capable of taking. What follows is limited to such a form of gift. Different considerations may, to some extent at any rate, be applicable to the case of a strictly contingent gift.
In the present case, upon the principles already stated, the effect of the disposition will be to exclude the next-of-kin unless "impracticability" is shown at the death of the Testator. But since the charitable gift was not an Immediate gift, the question is not merely whether at the Testator's death it was immediately practicable, but also whether it could at that ) said that it would at any relevant date be practicable. See re Moon (1546 1 All England Reports, page 300) and re "right (1954 Chancery, page 347). In the latter case the form of enquiry thought to be appropriate was (see page 350) as follows: "(1) an enquiry whether it is now or will at any future time be pourable to carry into execution the trusts declared by the will…." That enquiry (perhaps for obvious reasons) the Master had thought unanswerable. To meet the difficulty caused by such form of enquiry, Mr. Justice Upjohn had, in re white (1955 Chancery, page 168) suggested a variation in form which has been used in the present case, where the enquiry directed is; "An enquiry whether at the date of the death of the Testator it was practicable to carry into execution the trust for the purchase and equipment an management of suitable premises in Ipswicn Felixstowe or Lowestoft or any of those places as a Convalescent Hospital for Nurses or Patients or both or whether at the said date there was any roasts prospect that it would be practicable to do so at some time.
If by the first half of the enquiry the question intended is whether it was, on the Testator's death and as things then were, practicable to give effect to the relevant disposition, no doubt the answer is "No": because at that date the Testator's daughter, Maude, was alive and aged 39, her expectation of life was over 30 years, and the than present value of the remainder was about £2,40C, a sum admittedly and obviously Inadequate for the purpose. But the contest before us has been upon the effect of the second half of the enquiry. Mr. Lightman has argued that for the purpose of answering this part of the enquiry financial considerations are no longer relevant. Mr. Lightman has said (and, having regard to the concessions which he has made, it has been, if I have correctly understood him, his main if not his sole point) that the only relevant figure remains £2,400; that you cannot take account of the actual sum that would be, or would be expected to be, received in the event of the gift...
To continue reading
Request your trial
- Attorney-General (South Australia) v Bray
-
HM Attorney General v Zedra Fiduciary Services (UK) Ltd
...is correct that the question of initial impossibility has to be assessed as at the date the gift takes effect: see, for example, Re Tacon [1958] Ch 447, at p.453. Lord Evershed first set out the “well established” position in the case of a gift to charity where no general charitable intent......
-
Truter v Die Administrateur, Kaapprovinsie, en 'n Ander
...would be practicable to do so at some future time." (Sien Re Whites' Will Trusts (1954) 2 All ER 620 (Ch) te 622 en Re Tacon (deceased) (1958) All ER 163 (CA)). In die onderhawige geval het ons - soos ek later sal aandui - nie te doen met die uitvoerbaarheid van die C bemaking ten tyde van ......
-
Truter v Die Administrateur, Kaapprovinsie, en 'n Ander
...would be practicable to do so at some future time." (Sien Re Whites' Will Trusts (1954) 2 All ER 620 (Ch) te 622 en Re Tacon (deceased) (1958) All ER 163 (CA)). In die onderhawige geval het ons - soos ek later sal aandui - nie te doen met die uitvoerbaarheid van die C bemaking ten tyde van ......