Re Maguire

(1870) L.R. 9 Eq. 632

(Judgment by: Sir W M James, VC)

Re: Maguire


Sir W M James, VC

Subject References:

Judgment date: 14 March 1870

Judgment by:
Sir W M James, VC

Testatrix made several bequests to charitable institutions, and, amongst others, to the C. P. A. Society in England, and to the C. P. A. Society in Ireland. There was no such society as the C. P. A. Society in Ireland, but the S. A. Society for Ireland, to whom a bequest had been made, was founded for similar objects and with rules almost identical with those of the C. P. A. Society in England:-

Held (the Attorney-General not objecting), that the bequest might be paid to the S. A. Society for Ireland.

SUSANNA MAGUIRE, spinster, by her will, dated the 12th of February, 1855, bequeathed out of her Government Stock

£200 unto the Church Education Society in Ireland;
£200 unto the Additional Curates' Aid Society in Ireland;
£300 unto the Society for the Propagation of the Gospel in Foreign Parts;
£100 unto the Exeter Diocesan Board of Education;
£300 unto the Society for Employment of Additional Curates in England;
£300 unto the Church Pastoral Aid Society in England;
£200 unto the Church Pastoral Aid Society in Ireland.

By a codicil to her will, the testatrix directed that each of the charitable legacies given by her will should be primarily charged on her pure personalty, in priority to all other payments thereout.

Miss Maguire died in November, 1866.

The charitable legacies, with the exception of that to "The Additional Curates' Aid Society in Ireland," and that to "The Church Pastoral Aid Society in Ireland," had been paid, and a sum to answer these legacies had been set apart by the executors, and paid into Court.

It appeared that a society was formed in 1839 under the name of "The Additional Curates' Fund Society for Ireland." At the annual general meeting of the society, held at Dublin on the 30th of March, 1865, a resolution was passed changing the name to "The Spiritual Aid Society for Ireland."

There had never been any society in Ireland called "The Church Pastoral Aid Society."

Upon a summons taken out by the Spiritual Aid Society for Ireland, claiming payment of the legacy bequeathed to the Additional Curates' Aid Society, an order had been made for payment to the Spiritual Aid Society.

The executor had taken out a summons for payment to him on behalf of the legatees other than charities of the legacy to the Church Pastoral Aid Society in Ireland; the general legacies having had to abate.

An affidavit was made by the Archbishop of Dublin, one of the vice-presidents of the Spiritual Aid Society, stating that the objects of the Church Pastoral Aid Society, which was established in England, and did not extend its operations to Ireland, were similar to those of the Spiritual Aid Society, being directed to making annual grants towards the maintenance of additional curates in places in need of such assistance, and that the Spiritual Aid Society was the only society existing at the date of the will, or now existing, which could carry out the object and intention of the testatrix with regard to the legacy bequeathed to the Church Pastoral Aid Society in Ireland.

Mr. W. Pearson, for the executor, in support of the summons:-

Where the testator shews an intention not to give to charity generally, but to benefit a particular institution, and that institution cannot be found, the Court will not apply the bequest cy-près. The doctrine of cy-près being only applicable

where there is a general charitable intention, but no mode of application, or
where a legacy is given to trustees for undefined objects.

In this case the testatrix has pointed out two distinct societies, one of which is not, and never has been in existence; and on no principle can the other society be allowed to take the legacy, which has already lapsed for the benefit of the general legatees.

Mr. T. C. Wright, for the Spiritual Aid Society, claimed the legacy on the ground that this society, which carried on its operations in Ireland, was founded for the same objects and with almost identical rules, as the Church Pastoral Aid Society in England; and that the object of the testatrix was not so much to benefit a particular society, as to promote a particular cause: Loscombe v. Wintringham; [F1] Fish v. Attorney-General; [F2] In re Clergy Society. [F3]

Mr. Wickens, for the Attorney-General, contended that there was a sufficient indication of a general charitable purpose to induce the Court to administer the bequest cy-près. In cases where the society the particular object of a testator's bounty has ceased to exist, or where it has refused the gift, the gift will be applied according to a scheme in favour of the general intention: Reeve v. Attorney-General; [F4] Hayter v. Trego; [F5] Tudor on Charitable Trusts. [F6]

Mr. Pearson, in reply, contended that no distinction could be drawn between a legacy to a person, who died in the testator's lifetime, and one to a person who could not be found. In either case the legacy lapsed: Fisk v. Attorney-General, [F7] Jarman on Wills. [F8]

Sir W. M. James, V.C.:-

The intention of the testatrix to devote this sum to charity, and also the particular object of the charity, are sufficiently indicated by the name of the society itself, and by the place in which the legacy is found among other legacies to charity. There can be no doubt of the intention of the testatrix to provide for the objects embraced by the Spiritual Aid Society, and it follows from Loscombe v. Wintringham [F9] and In re Clergy Society, [F10] that this is a perfectly good charitable bequest. In Fisk v. Attorney-General, Vice-Chancellor Wood, in reference to a legacy to a charity, which had been dissolved in the lifetime of the testatrix, observed: [F11]

"I am far from saying that that argument may not some day or other require further consideration; but there are two decisions, one by Vice-Chancellor Kindersley of Clark v. Taylor, [F12] the other by Vice-Chancellor Stuart of Russell v. Kellett, [F13] which expressly decide that when a gift is made by will to a charity which has expired it is as much a lapse as a gift to an individual who has expired."

I certainly do not intend myself to go further than Vice-Chancellor Wood did, but in this case there is a clear intention by the testatrix to effect a particular object of charity - pastoral aid in Ireland - which is carried out by the society now claiming it. I apprehend the Attorney-General will not object, and there will be an order for payment of the legacy to the Spiritual Aid Society for Ireland to be applied for the purposes of Church pastoral aid in Ireland.

13 Beav. 87.

Law Rep. 4 Eq. 521.

2 K. & J. 615.

3 Hare, 191.

5 Russ. 113.

Pages 212, & c.

Law Rep. 4 Eq. 521, 528.

Vol. i. p. 528, 3rd Ed.

13 Beav. 87.

2 K. & J. 615.

Law Rep. 4 Eq. 528.

1 Drew. 642.

3 Sm. & Giff. 264.