THE LAPSE OF CHARITABLE BEQUESTS
| Author | J. B. E. Hutton |
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb02303.x |
| Date | 01 May 1969 |
| Published date | 01 May 1969 |
THE LAPSE
OF
CHARITABLE BEQUESTS
A
TESTATOR
may give a bequest to
a
charitable institution
or
for
a
charitable purpose, and then, before his death, the institution
may be closed down
or
the charitable purpose may cease
to
be
carried
on;
or
in some instances the institution
or
purpose described
in the bequest may have ceased to exist before the date of the will.
In
such
a
case,
if
effect cannot be given to the particular intention
expressed by the testator, the
gifft
will be applied
cy-prbs
if
the
testator had a general charitable intention.’ But
if
the testator had
no
general charitable intention, then the
gift
may lapse; and the
application of the ordinary doctrine
of
lapse
to
a
charitable bequest
where the testator had
no
general charitable intention, and the
extent to which the application of the doctrine
is
restricted by the
principle that
a
charity cannot die, have given rise to a series of
cases.
It
is proposed to consider these cases under the three heads
concisely stated by Bennett
J.
in
Re Pochin
(which
is
noted after
Re Lucas
”)
:
cc
It
is
now well settled that a
gift
by will to
a
particular
charitable institution for the purposes thereof lapses,
if
the par-
ticular charitable institution ceases to exist
in
the lifetime of the
testator; (see
Re Rymer).
It
is also settled that a
gift
by will
for
a
particular charitable purpose fails and that the
gift
lapses,
if,
at
the death of the testator,
it
is impossible to carry out
that particular purpose; (see
Re Wilson).
It
is also settled that
a
gift by will
to
a
named charity takes effect, although
between the date of the will and the date of the testator’s death
the charitable purposes for which the property of the charity
may be applied have been lawfully changed; (see
Re Faraker).
The meaning of the word charity
’
in such
a
context is
property which is held
on
a chazitable trust.”
In
this article these three main types of bequest will be termed
a
gift to
a
particular charitable institution, a gift for a particular
charitable purpose
or
purposes,
and
a gift to augment the funds of
a
named charity.
It
is also proposed
to
discuss
cc
the debatable
territory
’’
(as
it
was termed by Roxburgh
J.
in
Re Lucas
4,
between
Re RymerYS Re Wilson
and
Re Faraker.l
1
The need
for
a general charitable intention, before
B
bequest (which would
otherwise fail
ab
inifio)
can be applied
cy-pds,
has been preserved in England
by
8.
13
(2)
of
the Charities Act 1960, and
in
Northern Ireland by
8.
22 (2)
of
the Charities Act (Northern Ireland) 1964.
[1948]
Ch.
182, 184.
3
[1948] Ch. 175.
Ibid.
at
p.
179.
6
[1895]
1
Ch. 19.
6
[1913]
1
Ch. 314.
7
[1912]
2
Ch. 488.
283
284
THE
MODERN
LAW REVIEW
VOL.
32
The flrst line of cases is that where there is
a gift to a particular
charitable institution.
This line of cases establishes that, in the
absence
of
a
general charitable intention,
a
gift to a particular
charitable institution
for the purposes thereof lapses,
if
the institu-
tion ceases to exist before the death of the testator. The principle
was applied by Kindersley V.-C. in
Clark
v.
Taylor
Wood V.-C.
followed
Clark
v.
Taylor
in
Pisk
v.
Attorney-General'
and the
decision
in
the latter case was followed in
Re Ovey.l0
Clark
v.
Taylor
and the cases following
it
were approved by the
Court of Appeal in
Re Rymer.I1
In
that case the testator bequeathed
8
legacy of
25,000
"
to
the rector for the time being
of
St. Thomas'
Seminaqy for the education
of
priests in the diocese of Westminster
for the purposes
of
such seminary." The seminary ceased
to
exist
prior to the death of the testator. The argument advanced against
a lapse
!.*
was that the legacy was a gift for purposes which still
existed, namely, the education of priests for Westminster, Birming-
ham, and elsewhere, and that the educational purposes still existed
although the particular seminary had ceased to exist. But
it
appears
from the report that this argument was advanced
to
support the
contention that there was a general charitable intention and that
the gift should be applied
cy-prbs,
and that the argument was not
advanced that the bequest could take effect as a
gift
for educational
purposes without the
need
to invoke the
cy-prbs
doctrine. Chitty
J.
(as he then was), at first instance, and the Court of Appeal construed
the legacy as a
gift
to
a
particular institution for the purposes of
that institution and held that the gift lapsed as the institution had
ceased
l;o
exist before the death
of
the testator. Lindley
L.J.
(as
he then was) dealt with the argument that the educational
purposes still existed though the particular seminary had ceased to
exist
::
''
13ut when once you arrive at the conclusion that a
gift
to a
particular seminary
or
institution,
or
whatever you may call
it,
is
'
for the purposes thereof,' and for
no
other purpose-if
you once get to that, and
it
is proved that that institution
or
seminary,
or
whatever
it
is, has ceased
to
exist in the lifetime
of
the testator, you are driven to arrive at the conclusion that there
is
it
lapse, and then the doctrine
of
cy-pr&s is inapplicable. That
is
in
accordance with the law, and
in
accordance with all the
cases that can be cited.
I
quite agree that in coming to that
conclusion you have to consider whether the mode of attaining
the object is only machinery,
or
whether the mode is not the
8
(18531
1
Drew.
642.
9
(1867)
L.R.
4
Eq.
521.
10
(1885) 29
Ch.D.
560.
11
[1895]
1
Ch.
19.
12
Ibid.
at
pp.
21, 22.
13
Ibid.
at
p.
35.
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