Attorney-General v National Provincial and Union Bank of England and Ors
[1924] A.C. 262(Judgment by: Viscount Cave LC (including background))
Between: Attorney-General - Appellant
And: National Provincial and Union Bank of England and Ors - Respondents
Judges:
Viscount Cave LCViscount Haldane
Viscount Finlay
Lord Atkinson
Lord Sumner
Subject References:
CHARITY
'Patriotic purposes or objects'
Validity
Discretion of Trustees
Judgment date: 17 December 1923
Judgment by:
Viscount Cave LC (including background)
A testator by his will directed his trustees to apply one-fifth of his residuary estate "for such patriotic purposes or objects and such charitable institution or institutions or charitable object or objects in the British Empire" as they in their absolute discretion should select:-
Held, that the words of the gift must be read disjunctively, that "patriotic purposes" were not necessarily charitable, and that the gift was void for uncertainty.
Decision of the Court of Appeal [1923] 1 CH. 258 affirmed.
Appeal from an order of the Court of Appeal affirming an order of Russell J. [F1]
The question raised by the appeal was whether a gift in the will of H. G. Tetley deceased of one-fifth of his residuary estate in trust "for such patriotic purposes or objects and such charitable institution or institutions or charitable object or objects in the British Empire as my trustees may in their absolute discretion select in such shares and proportions as they shall think proper" was a good charitable bequest.
The facts are fully stated in the report of the case before Russell J. and the Court of Appeal.
Russell J. held that the gift was void, and the Court of Appeal affirmed his decision.
Maugham K.C. and Dighton Pollock (Sir Douglas Hogg A.-G. with them) for the appellant. The words "patriotic purposes" in the collocation in which these words are used must indicate purposes which are for the benefit and advantage of the community - in other words purposes for the public welfare - and if that is their true meaning this is a good charitable bequest. In Commissioners for Special Purposes of Income Tax v. Pemsel [F2] Lord Macnaghten classifies the different kinds of "charity," in its legal sense, as follows:
"trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads."
This gift falls under the fourth head. It is conceded that a gift for public purposes is not a good charitable gift, because public purposes are not necessarily beneficial: Blair v. Duncan; [F3] so also a gift for philanthropic purposes, for there may be a philanthropic purpose which is not public; In re Macduff; [F4] so also a gift for benevolent purposes for the same reason: Houston v. Burns; [F5] see also Bowman v. Secular Society, [F6] per Lord Parker. On the other hand patriotic purposes must be charitable, because they must be for the benefit of the country as a whole. This bequest also fulfils the requirements laid down by FitzGibbon L.J. in In re Cranston, [F7] where he criticises Lord Macnaghten's definition. Further, the collocation of the words in this bequest is such that "such patriotic purposes or objects and such charitable institution or institutions or charitable object or objects" must be read conjunctively and not disjunctively.
Courthope Wilson K.C. and Gavin Simonds for the respondent H. T. Tetley, one of the statutory next of kin of the testator.
Ashworth James for the remaining respondents, except P. M. Millard, another of the statutory next of kin, who did not appear.
Viscount Cave L.C. -
My Lords, in this case I cannot bring myself to entertain any doubt as to the correctness of the decision in the Court of Appeal.
The question raised in these proceedings is whether a certain trust declared by the testator, Mr. Henry Greenwood Tetley, of one-fifth part of his residuary estate is or is not void for uncertainty. That trust was declared in these terms:
"Upon trust as to one-fifth thereof to devote and apply the same for such patriotic purposes or objects and such charitable institution or institutions or charitable object or objects in the British Empire as my trustees may in their absolute discretion select in such shares and proportions as they shall think proper."
Now the general rule is clear that if you are making a will you must declare your wishes, and not leave it in wide and uncertain terms to some one else to make a will for you. Special treatment is meted out to a gift for charitable purposes, and in that case the Courts have recognized that it is open to a testator who declares a charitable purpose to leave it to his trustees to select the particular charities for whose benefit his fund is to be applied. But that does not apply to cases not coming within the description of charity. Therefore the whole contest in this case has been to bring this trust within the description of a charitable trust.
That object has been pursued in two ways. First it is said that you ought to read the words of the trust conjunctively - that is to say, that you are to road this as a trust for purposes which are both patriotic and charitable, such purposes to be selected by the trustees. Like the learned judge of first instance, Russell J., and the learned judges in the Court of Appeal, I am totally unable to read the trust in that way. It appears to me to be plain that the testator has, as Russell J. said, given to his trustees four categories out of which they may select the objects of his benevolence; they may be either patriotic purposes, or patriotic objects, or charitable institutions or charitable objects - they may make a selection of objects from any one or more of those four categories. In short the words are to be read, not conjunctively, but disjunctively. That argument therefore cannot prevail.
Then the second point that was made is this. It is said that "patriotic purposes" are necessarily charitable purposes, because they come within the fourth of the categories into which Lord Macnaghten in the well-known case of Commissioners of Income Tax v. Pemsel [F8] divided charities. He said:
"'Charity' in its legal sense comprises four principal divisions:
- trusts for the relief of poverty;
- trusts for the advancement of education;
- trusts for the advancement of religion;
- and trusts for other purposes beneficial to the community,
not falling under any of the preceding heads."
It is said that
"patriotic purposes .... in the British Empire"
means purposes directed to the public welfare of the British Empire, and so the trust falls within the fourth division of
"trusts for other purposes beneficial to the community, not falling under any of the preceding heads."
My Lords, it has been pointed out more than once, and particularly by the members of the Court of Appeal in In re Macduff, [F9] that Lord Macnaghten did not mean that all trusts for purposes beneficial to the community are charitable, but that there were certain charitable trusts which fell within that category; and accordingly to argue that because a trust is for a purpose beneficial to the community it is therefore a charitable trust is to turn round his sentence and to give it a different meaning. So here it is not enough to say that the trust in question is for public purposes beneficial to the community or for the public welfare; you must also show it to be a charitable trust.
My Lords, I am not able to say that this is a charitable trust.
The expression "patriotic purposes" is vague and uncertain. Whether a purpose is patriotic or not is a matter of opinion; it depends to a great extent upon the state of mind of the person who uses the expression. An object which appears to some persons to be patriotic may legitimately appear to others not to fall within that description; and there is no fixed rule by which a Court may determine whether a particular purpose is or is not patriotic.
Further, it is not difficult to conceive purposes which to most persons would appear patriotic, but which are clearly not charitable within the legal meaning of that term. It seems to me therefore that the expression "patriotic purposes" is one which cannot be said to bring the trust within the category of a charitable trust. The point is, I think, practically covered by two well-known decisions in your Lordships' House. The first is the decision in Blair v. Duncan, [F10] where the words are "charitable or public purposes," and the second case is Houston v. Burns, [F11] where the words are "public, benevolent or charitable purposes." In both of those cases the trusts were held to be uncertain and void, and for the same reasons I hold the view that the trust in this case is also void.
I move your Lordships that the appeal be dismissed.