Whicker v Hume
| Jurisdiction | England & Wales |
| Judgment Date | 06 March 1852 |
| Date | 06 March 1852 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 649
BEFORE THE LORDS JUSTICES.
S. C. 13 Beav; 366; 14 Beav. 509; 21 L. J. Ch. 406; 16 Jur. 391, and in House of Lords, 7 H. L. C. 124; 28 L. J. Ch. 396; 4 Jur. (N. S.) 933. See report in 7 H. L. C. 124, with note, 11 E. R. 50.
.1DEO. M.SO.B06. WHICKER V. HUME 649 [606] whicker v. hume. Before the Lords Justices. March 5, 6, 1852. [S. C. 13 Beav. 366; 14 Beav. 509; 21 L. J. Ch. 406; 16 Jur. 391, and in House of Lords, 7 H. L. C. 124; 28 L. J. Ch. 396; 4 Jur. (N. S.) 933. See report in 7 H. L. C. 124, with note, 11 E. R. 50.] A testator devised and bequeathed residuary estate, consisting partly of real estates in New South Wales, to trustees upon trust to apply the same at their absolute and uncontrollable discretion, for the benefit and advancement and propagation of education and learning in any part of the world, so far as circumstances would permit. Held, a valid charitable bequest. This was an appeal from the decision of the Master of the Rolls upon the effect of the will of Dr. Borthwick Gilchrist, dated the 8th of December 1840, whereby the testator gave and bequeathed all his residuary, real and personal estate to trustees upon trust for sale, and to invest the residue of the produce after payment of the expense of sale in the Parliamentary stocks or public funds, stocks and securities of the colonies, or of any foreign stock, or on mortgage of lands in Scotland or Ireland, or in the colonies, or with stock of any commercial company, but so that no investment should be made which could not by law be disposed of by will to a charity. The testator then directed the trustees to stand possessed of such stocks and securities and monies upon trust to pay certain annuities, and as to the residue upon such trusts as he should declare by his codicil. On the day of the date of the will the testator made a codicil in the following terms :- "This is a codicil to the last will and testament of me, John Borthwick Gilchrist, which will bears even date with, but was executed previously to, this codicil. I hereby direct and appoint that the trustees or trustee [507] for the time being of my said will, do and shall stand possessed of and interested in the residue or surplus of the trust monies and securities thereby to them bequeathed, in trust to appropriate the same in such, manner as they, my said trustees or trustee, shall, in their absolute and uncontrolled discretion, think proper and expedient, for the benefit and advancement and propagation of education and learning in every part of the world as far as circumstances will permit." At the time of the testator's death he was entitled to personal estate and a leasehold house in Scotland, and real estate in South Wales. The Master of the Rolls held that the bequest contained in the codicil was valid. Against this decision the next of kin appealed. Mr. Bethell, Mr. Rolt and Mr. Springall Thompson, in support of the appeal. The words "for the advancement and propagation of education and learning," are too vague for this Court to give effect to. And as they do not denote exclusively charitable objects the gift fails : Brawn v. Yeall (7 Ves. 50, n.), Mortice v. The Bishop of Durham (9 Ves. 408 ; 10 Ves. 532), James v. Allen (3 Mer. 17), Ommaney v. Butcher (Turn. 260), Williams v. Kershaw (1 Keen, 232, n.; 5 Cl. & Fin. Ill), Ellis v. Selby (7 Sim. 352), Kendall v. Granger (5 Beav. 300). [THE lord justice knight bruce. If in Williams v. Kershaw the word " benevolent" had alone been used it would have been ineffectual. There it seems to have been held that the use of that adjective, with others of more definite import which it followed, deprived the other of effect.] [608] [THE lord justice lord cranworth. The House of Lords seems to have read the bequest as meaning for benevolent purposes, for charitable purposes, and for religious purposes.] In the present will the objects are altogether indefinite, and extend to the whole habitable globe; a gift for the advancement of learning might be properly applied by offering rewards for discoveries of any kind. In Nightingale v. Goulburn (5 Hare, 484), the benefit was confined to the inhabitants of Great Britain. In the next place, supposing the bequest could be deemed to be charitable, it is void as regards the proceeds of the freehold in New South Wales, under the 9 Geo. 2, c. 36. By the 9 Geo. 4, c. 83,(1) that law is extended to [609] the colonies. Attorney-General v. Steioart (2 Mer. 141) may be cited on the other side, but the colony there was C. xxii.-21* 650 WHICKER V. HUME 1DE G. M. ft G. J10. Grenada, where the French law prevails. The Act 9 Geo. 4, c. 83, provides that the laws, of England shall prevail so far as can be applied. Now the principles of the Act are generally applicable. The mischief against which it is intended to guard is to be found everywhere. [THE lord justice knight bruce. How could the provisions as to enrolment be carried into effect in New South Wales 1 According to the construction contended for, may not any quantity of land in New South Wales be given to Oxford, Cambridge, Eton, Winchester or Westminster, while a single acre cannot be given for the benefit of similar institutions in the colony T\ The 24th section of the Act enables the governor of the colony for the time being to make such limitations and modifications of the English law as may be deemed expedient. [THE lord justice knight bruce. Is not the question one for the decision of a Court in the colony 1 ] In the Mortmain Act, land in Scotland is excepted, and if it had been the intention of that statute to exclude [610] lands in the colonies from its operation, a similar exception would have been introduced. They also referred to Lyon v. Colville (1 Coll. 449), Loscombe v. Wintringham (13 Bea. 87), Hargrave Coll. Jur. 162. Mr. Roundell Palmer, Mr. Anderson, Mr. Bagshawe, Mr. W. M. James, Mr. Beavan and Mr. W. Morris, for the Eespondents, were not called on. the lord justice knight bruce. The appeal in this case raises three questions, the first of which is involved in the two others, and need not be considered separately. The second question is, whether independently of the Statute of 9 Geo. 2, c. 36, whether on the assumption that the gift does not affect property obnoxious to that statute, there is a good trust for what this Court considers to be charitable purposes created by these words : " I hereby direct and appoint that the trustees or trustee for the time being of my said will do and shall stand possessed of, and interested in, the residue or surplus of the trust-monies and securities to them bequeathed, in trust to appropriate the same in such manner as they, tny said trustees or trustee, shall, in their absolute and uncontrolled discretion, think proper and expedient for the benefit and advancement and propagation of education and learning in every part of the world, as far as circumstances will admit." I apprehend that the only difficulty as to this part of the case is created by the introduction of the two words " and learning " after the word " education." That a trust for education would be good, notwithstanding what this testator has said, whether effectually or ineffectually, of the uncontrolled discretion of the trustees, is clear of doubt. The arguments against its validity have been directed to the word " learn-[511]-ing." Now, my impression of the true construction is that either the words " and learning " add nothing whatever to the idea represented by the term " education," or, if they do, that the phrase " learning" is only to be considered as explanatory of the word "education;" and that it is the same as if the testator had said "education in learning," as distinguished from education in other subjects or matters, to which the term education might have been applied. I think that the introduction of the expression does not render bad and ineffectual that which would have been good and effectual without it. The next question is as to the property comprised in the bequest, and it has been suggested that immovable property in New South Wales must be ineffectually given to charitable purposes, as it is said to fall within the provisions of 9 Geo. 2, c. 36, by reason that the 24th sect, of 9 Geo. 4, c. 83, provides that all laws and statutes in force within the realm of England, at the time of the passing of the Act, not being inconsistent therewith, or with any charter or letters patent, or order in council, which might be issued in pursuance thereof, should be applied in the administration of justice in the Courts of New South Wales and van Diemen's Land respectively, so far as the same could be applied within the said colonies. Taking the whole of the section together, I am of opinion that the words " can be applied " mean "can be reasonably applied," a construction which, of necessity, introduces all those considerations that presented themselves to Sir William Grant's mind in the case of Attorney-General v. Stewart (2 Mer. 156), a case specifically differing from the present, but which it is impossible to read without seeing that [512] the opinion .M. ft 0.818, dale's case 651 expressed by Sir William Grant applies to a case like this; he there suggests various reasons against the application of such a statute as that of 9 Geo. 2, c. 36, to a colony, unless the Legislature had thought fit expressly so to apply it. Here, in the first place, it is to my mind doubtful, or more than doubtful, whether there could be an enrolment auch as the statute requires. It is true that jurisdiction is conferred upon the Supreme Court analogous to the equitable and common-law jurisdiction exercised by the Court of Chancery here; but, with regard to the particular enrolment which the statute requires, how could enrolment in the Courts in the -colonies satisfy the words of the Act of Geo. 2 ? In the next place, there are the peculiar privileges granted to certain places...
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