Attorney-General v National Provincial and Union Bank of England and Ors
[1924] A.C. 262(Judgment by: Viscount Haldane)
Between: Attorney-General - Appellant
And: National Provincial and Union Bank of England and Ors - Respondents
Judges:
Viscount Cave LC
Viscount HaldaneViscount Finlay
Lord Atkinson
Lord Sumner
Subject References:
CHARITY
'Patriotic purposes or objects'
Validity
Discretion of Trustees
Judgment date: 17 December 1923
Judgment by:
Viscount Haldane
My Lords, I am of the same opinion. There are reasons of importance why the term "charitable" should be restrained in its meaning. In the first place, when a gift is established as being for a charitable purpose the rule against perpetuities does not apply, and therefore it would be to exempt an indefinite amount of property in the country from the operation of a salutary rule if the word "charitable" were not given a restricted meaning. But, in the second place, there is a consideration which is in one sense more important, because it applies to Scotland, where the rule against perpetuities does not apply.
Your Lordships are aware that when there can be collected from a document a general intention by the person who made it to give his property for charitable purposes, although the particular charity which is named may be impossible or may have failed, the Court of administration apply the doctrine which they call the cy-prss doctrine, and, recognizing that there is a general intention to set aside a class of gift as being of a charitable kind, will mould the trust defined cy-prss, so as to make it come within the scope of the general intention. That I believe is the law of Scotland as well as the law of England; and it is important, because it means that in the case of this particular kind of gift - namely, a charitable gift - you can deviate from the letter of the testator's intention so long as you have kept within its spirit.
My Lords, these two considerations make me, as I say, think that it is of great importance that we should not extend rashly the meaning of the word "charitable" in this connection. It certainly is narrower - but it is easier to say what it is not than what it is - than the word "benevolent." That was not contested at the Bar. Is it narrower than the word "patriotic"? Because, if "patriotic" is something outside charity, then I for one can find no legal ground for treating patriotic gifts as entitled to the special advantages which the law accords to charitable gifts. As has been pointed out by my noble and learned friend on the Woolsack, Lord Macnaghten's observation in the Pemsel Case, [F12] which was a mere classification of categories of charities, has been turned round. Lord Macnaghten cannot be taken to have intended to say that anything which belonged to the more general or public character of the fourth class enumerated could be the subject of a good gift if it did not in some sense come within the general category of charity.
Now, my Lords, "patriotic"! Lord Robertson in his judgment in Blair v. Duncan [F13] pointed out instances of gifts which undoubtedly were patriotic, but were not in his opinion charitable, and the reasons which Lord Robertson; who was very exact in his use of language, gave there seem to me to be of importance. What "charitable" is I should be sorry to have to define with precision without hearing an elaborate argument, but what does not come under "charitable" I think is usually fairly plain. Between a patriotic intention and a charitable intention there is a distinction not only in language but in substance. In the case of a gift for charitable purposes there is a desire to profit people who would not be profited without your gift - that is the dominant motive. In the case of patriotism there is a desire to fulfil one dominant purpose, that is to benefit the cause of the country to which you belong.
My Lords, those are two different heads of intention, different perhaps not in such a way that they never overlap, but in such fashion as to distinguish the one class from the other. Now here these considerations, in my opinion, dispose of this appeal, because the gift is
"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."
These two alternatives are disjoined, they are real alternatives, and if they exclude each other, even to any extent, then the gift must fail; because a man cannot disinherit his heirs by giving away his property unless he really gives it away; he cannot leave it to some one else to make a will for him, nor can he leave it to his trustees to give it for purposes which are to be completely in their discretion, unless these purposes are so indicated as in some sense to confer on a class of beneficiary an interest. In this case the testator might have done that. If he had confined himself to charities there would have been a general indication of a class for the benefit of which the Court would administer, even if only cy-prss; but, if the trustees have an alternative in their complete discretion, which is, to take a property which is not vested in them beneficially, nor vested in any charitable class exclusively, but given to the trustees with a discretion to hand it over to some not prescribed patriotic object, then you have not got that divesting out of the testator of his interest which is essential to constitute a testamentary disposition. The testamentary disposition in this case therefore fails because of uncertainty.
My Lords, I find myself at one with the judgment of the Court below, and I concur in the motion that this appeal should be dismissed.