Townsend v Carus
| Jurisdiction | England & Wales |
| Judgment Date | 11 January 1844 |
| Date | 11 January 1844 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 378
HIGH COURT OF CHANCERY
S. C. 13 L. J. Ch. 169; 8 Jur. 104. See Commissioners of Income Tax v. Pemsel [1891], A. C. 567; In re White [1893], 2 Ch. 52.
[257] townsend v. carus. Dec. 22, 1843; Jan. 11, 1844. [S. C. 13 L. J. Ch. 169 ; 8 Jur. 104. See Commissioners of Income Tax v. Pemsel [1891], A. C. 567 ; In re White [1893], 2- Ch. 52.] A bequest of a legacy to trustees " upon trust to pay, divide or dispose thereof, unto or for the benefit or advancement of such societies, subscriptions or purposes, having regard to the glory of God, in the spiritual welfare of His creatures, as they shall in their discretion see fit," construed to be a gift for religious purposes, and restricted to such purposes. 3 HARE, 258. TOWNSBND V-. CAEUS 379 A bequest for a religious purpose is a valid charitable bequest, although the paramount religious object might, possibly, be effected by an application of part of the fund to a purpose which, separately taken, would not be strictly charitable. Sarah Atkins, by her will, dated in 1837, after giving various legacies, disposed of the residue of her estate in the following words:-" And now, having provided for those who are connected with me, or have claims upon me, I do bequeath the residue and remainder of my property and effects, after and subject to the payment of my debts, funeral and testamentary and other incidental charges and expenses, unto my friends, the Rev. William Garus, Minister of Trinity Church, Cambridge, where I have been used to worship, and to the Eev. George Spence, late assistant curate of the said church, and now Vicar of St. Clement's in the said town, upon trust to pay, divide, or dispose thereof unto or for the benefit or advancement of such societies, subscriptions, or purposes, having regard to the glory of God in the spiritual welfare of His creatures, as they shall in their discretion see fit: and I entreat them to undertake the office of almoners of my residue, and to permit me to nominate them to be executors of this my will. My motive in thus constituting these gentlemen residuary legatees and executors springs from the confidence which I have in their judgment and faithfulness, and the conviction that they will apply and dispose of the residue of my little property (the amount of which is at present involved in uncertainty and doubt) in a better manner for the furtherance of His honour from whom I received it all than I myself could, did I know its full amount; and I pray God to bless it to such purposes, and to bless them in the disposal of it." The testatrix died in 1843. The will and a codicil, giving other legacies, were proved by the executors. The Plaintiff claimed as one of the next of kin of the [258] testatrix, and was also a pecuniary legatee under the will. The suit was instituted for the administration of the estate, and payment of the Plaintiff's legacy; and it also prayed a declaration that the bequest of the residuary estate was void, and. that the next of kin of the testatrix was entitled thereto; and that it might be referred to the Master to inquire who were such next of kin. The Attorney-G-eneral was made a party. The Defendants, the executors, admitted assets sufficient to pay the pecuniary legacy to the Plaintiff. Mr. Prior, for the Plaintiff, argued that the residuary bequest was void as not necessarily charitable, and otherwise too indefinite to be executed by the Court. The question was not whether the trustees might distribute the fund in purposes that would be strictly charitable within the legal meaning of that word, without any breach of trust, but whether they were bound to apply the "fund to such strictly charitable purposes : Morice v. Bishop of Durham (9 Ves. 399, S. C.; 10 Ves. 522), James v. Allen (3 Mer. 17). If the trustee under this bequest might devote the whole or any part of the trust fund to objects not charitable within the definition of this Court (9 Ves. 405, 10 Ves. 541, 3 Mer. 19) the gift must fail. It was difficult to deny that in this case the fund might be applied according to the trust, and yet not in charity : it was to be applied for the benefit of societies, subscriptions or purposes at the discretion of the trustees. What was to govern their discretion ]-a " regard to the glory of God in the spiritual welfare of His creatures." Many instances might be adduced in which individuals had considered themselves as acting scrupulously with regard to what the testatrix pointed out, and yet had arrived at [259] consequences little reconcileable with charity in any sense. A regard to the object here referred to operating in one temper of mind, in a former age, led to the infliction of the punishment of death for heresy; and a like regard, in another temper, and in modern times, manifested itself in the formation of societies for the propagation of heresy. In the university of the town, amongst the clergymen of. which the testatrix had selected her trustees, many wealthy individuals had formed themselves into a society for the purchase of advowsons, in order, as it was said, to present persons who were willing to pledge themselves to calvinistic or other opinions, forming no part of the confession of faith, or subscription of doctrine, which the church required. Was it not possible that the trustees in this case might consider the advancement of the objects of that society a proper employment of the trust fund 1 and what was there 380 . TOWNSEND V. CA-RTJS 3 HARE, 260. in the language of the will to prevent such an application 1 Or, suppose the trustees should think it proper to indemnify a clergyman, who, acting on opinions in which they coincided, had subjected himself to the penal jurisdiction of the Ecclesiastical Courts; or, again, suppose they should think it within the scope of their trust to purchase a living for some popular preacher; it could scarcely be said that there was anything to restrain them from adopting any of these modes of carrying the trust into effect. The only word in the will which could be considered as intimating a more limited application of the trust fund was the word "almoners," by which the testatrix subsequently designated her trustees; but it was clear from the context that this word was not used in any strict sense, but merely as synonymous with "distributors." The only mode in which the Court could deal with this gift was to declare the Defendants, the executors, trustees for the next of kin of the testatrix : [260] Brown v. Yeall (7 Ves. 50, n.), Williams v. Kershaw (1 Keen, 232), Ellis v. Selby (1 Myl. & Cr. 290). Mr. Bolt, for the executors, argued that the words of the will expressly pointed to religious objects only : that " the benefit or advancement of societies, subscriptions or purposes," were only modes by which the religious object was to be promoted; and that any application of the fund to other than religious objects would be a breach of...
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