Re Corelli (deceased); Watt and Ors v Bridges and Ors

[1943] 2 All ER 519

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(Judgment by: Cohen J)

In the Matter of: Corelli (deceased)
Between: Watt and Ors
And: Bridges and Ors

Court:

Judge:
Cohen J

Subject References:
Charities
Charitable gift
Trust of premises as hostel for distinguished foreign visitors, as air zone for the health of the town and as meeting place for scientists connected with a certain society
Trust of income of estate to maintain premises and for promotion of arts
Gift to legatees of right to reside on premises

Case References:
Re Ogden, Taylor v Sharp - (1909) 25 LTR 382; 8 Digest 297, 738
Goodman v Saltash Corpn - (1882) 7 App Cas 633; 8 Digest 327, 1099; 52 LJQB 193; 48 LT 239
Houston v Burns - [1918] AC 337; 8 Digest 297, 739; 87 LJPC 99; 118 LT 462
Re Spence, Barclays Bank Ltd v Stockton-on-Tees Corpn - [1938] Ch 96; [1937] 3 All ER 684; Digest Supp, 107 LJCh 1
General Medical Council v Inland Revenue Comrs - (1928) 97 LJKB 578; Digest Supp, 139 LT 225

Judgment date: 29 July 1943

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Judgment by:
Cohen J

By her will dated 5 June 1922, Marie Corelli devised:

'... Everything of which I die possessed to my dear life-long friend Bertha Vyver unconditionally for her lifetime according to the terms mutually arrived at and agreed upon by us both that no relative of the said Bertha Vyver shall ever participate in any of the said property or possession or inhabit Mason Croft at any time.'

Then after appointing first executors and then trustees she made the following unusual provisions:

'I place the residue of my estate and effects (not hereby otherwise disposed of) including my estate at Mason Croft in the care of my trustees upon trust that nothing whatsoever be sold or disposed of out of Mason Croft and that all books pictures furniture curios and household goods shall be kept intact and carefully preserved as they now are.

And upon trust after the decease of the said Bertha Vyver my trustees shall secure the sanction of the Board of Trade or other appropriate authority to the formation of a company (excluding objects of profit or gain) to be incorporated upon the lines of those of the Leighton House Assocn London or alternatively to create by deed a trust in either case to provide for the ultimate preservation and use of my estate inclusive of Mason Croft the land adjoining known as the Paddock and the garden beyond it known as the Firs so that no portion of this freehold land shall be sold or built upon but be preserved intact and in good condition with all timber thereon special care to be taken of the ancient ilex tree at the bottom of the Paddock estimated to be the oldest tree in Stratford-upon-Avon and that all this freehold land shall be enclosed as a breathing space and air zone for the health of the town of Stratford-upon-Avon now endangered by the overcrowding of buildings entirely disadvantageous to the well-being of the population my intention being that the ultimate trusts of Mason Croft shall after the decease of all the beneficiaries specifically named by me be continued in perpetuity for the benefit and service of distinguished persons visiting Stratford-upon-Avon from far countries who shall be selected and recommended to my trustees by the Council of the Society of Authors and also as a meeting place as and when required by the President of the Royal Institution of Great Britain for the annual or provincial gatherings of scientists connected with that institution so that the house and grounds appertaining thereto as hereinbefore described shall be at the service of any such selected or distinguished person or persons whom my trustees shall approve visiting the town of Stratford-upon-Avon and who would otherwise seek their quarters in a hotel only out of this provision absolutely excluding actors, actresses and all persons connected with the stage.

But in particular I declare that my trustees shall hold the income of my estate and the moneys obtained from any copyrights and the investments made in my property absolutely in trust for the unkeep and preservation of Mason Croft to be used on the lines and with the intention as manifested in the Leighton House Assocn. London for the promotion of science literature and music among the people of Stratford-upon-Avon the rules of the said association to apply in the same manner as at Leighton House and this intention to be carried out and maintained by my trustees upon the decease of my friend the said Bertha Vyver and I most strictly enjoin that no person or persons connected with Stratford-upon-Avon officially or otherwise shall be permitted to co-operate or be connected in the carrying out or maintenance of the said trust and association or be employed in any portion of the said trust or association whatsoever.'

Then, after giving directions as to a portion of her property known as Trinity College, which are not material to the questions I have to determine, she gave certain legacies and devises, in each case free of legacy and succession duty, to be effective from the date of the decease of her friend Bertha Vyver. These legacies and devises are ten in number, but only Nos 1, 2, 3, and 4 are relevant to the question now before me. These were given in the following terms:

'1.

To my faithful servant Alfred Bridges for life and after his decease to his son Eric Bridges his heirs and assigns the two houses in Church Street now tenanted one by Mrs. Quatremain and one by Mr. Marshall on condition that they shall not be demolished but kept in good condition as antique buildings and I give to the said Alfred Bridges the sum of £100 together with all articles of furniture and pictures now lent to him by me at his house Winton House and I request him to remain custodian of Mason Croft under the association rules organised by my trustees at a suitable salary in order that he and his wife and son may always have a home there.

2.

To my maid Augusta Threadgold I give the Croft Cottage in the Paddock which she now occupies for her life the said cottage to be re-included in the Mason Croft estate after her decease. Also I give to her £100 and my diamond and aquamarine brooch.

3.

To my second maid Bella Barber I give £100 and the choice of any of my jewelled ornaments also the right to remain in Mason Croft as her home with the hope that she will find use for her excellent services in the upkeep and preservation of the house and apart from these specified bequests I give to the said Augusta Threadgold and Bella Barber all my wardrobe linen and personal ornaments in jewellery or other objects in grateful acknowledgment of their affection and care for me and knowing that in the friendship they have for each other they will divide these gifts between them in loving memory of me.

To my cook Anne Dance the sum of £100 and the right to remain in Mason Croft as long as she wishes.'

The testatrix died on 21 April 1924, and probate of her will was granted on 8 July 1924. Bertha Vyver, the tenant for life, died on 20 November 1941, and the question has now arisen as to the validity of the dispositions of Mason Croft and the residuary estate after her death. There is a doubt as to whether the testatrix left any next of kin entitled under the statutes of distribution. If she did not, the Crown will be entitled in the event of an intestacy. Accordingly, as the Attorney-General is a necessary party to argue that the bequest of Mason Croft and the residuary estate is a valid charitable bequest, the Solicitor-General has been made a party to represent the Crown and argue that this gift is invalid. The defendants, Bridges and Barber, have been joined as defendants to support that part of the provisions expressed to be made in their favour which purport to give them a right to have a home in Mason Croft.

I will deal first with the question whether the dispositions of residue to take effect after Bertha Vyver's death are valid charitable bequests. Counsel-for the Attorney-General argued, and I think rightly, that the directions as to keeping the contents of Mason Croft intact on the premises, as to the formation of a company or creation of a trust to carry out the testatrix's objects and as to the exclusion of all persons connected with Stratford-on-Avon from all part in the execution of the trusts, are mere machinery and throw no light on the question I have to decide. On this basis there appear to be three portions of the devise and bequest which have a bearing on the matter:

(a)

the direction to enclose all the freehold land as a breathing space and air zone for the health of the town of Stratford-on-Avon;

(b)

the expressed intention that the ultimate trusts of the premises shall, after the decease of all the specifically named beneficiaries, the continued in perpetuity for the benefit and service of distinguished visitors from over-seas to be selected or recommended by the Council of the Society of Authors and also as a meeting place as and when required by the President of the Royal Institution of Great Britain for the annual or provincial gatherings of scientists connected with that institution so that the premises should be at the service of any such selected or distinguished person or persons whom her trustees should approve and who would otherwise seek quarters in an hotel; and

(c)

the declaration as to the income of the estate and that it should be held for the upkeep of Mason Croft:

'... to be used on the lines and with the intention as manifested in the Leighton House Assocn. of London for the promotion of science literature and music among the people of Stratford-upon-Avon.'

My attention was directed to a number of cases bearing on the point which I have to decide. These and other cases at which I have looked appear to settle the following points:

(i)

The fine arts are not in themselves regarded as objects of charity although they would be if the element of instruction is introduced. That appears from Re Ogden

(ii)

A trust for the benefit of the inhabitants of a particular place is charitable: Goodman v Mayor of Saltash ; but this principle will not apply if the objects by which the inhabitants are to be benefited are too uncertain: Houston v Burns . If, however, they are sufficiently certain, a trust may be a valid charitable trust notwithstanding that, but for the association with the inhabitants of a particular place, the purposes might not have been charitable: see Re Spence , where Luxmoore J, commenting on Houston v Burns , said, at pp 103, 104 ([1937] 3 All ER, at p 689):

'In that case the gift in question was to a number of individuals as trustees and was to be applied by them

"for such public, benevolent or charitable purposes in connection with the parish of Lesmahagow or the neighbourhood in such sums and under such conditions as they in their discretion shall think proper."

The House of Lords held that the gift was void for uncertainty notwithstanding the express limitation to the particular locality named. The ground of the decision was that if the clause was to be construed (as in fact is was construed by the House of Lords) as being for such public, or benevolent or charitable purposes connected with the locality as the trustees thought proper, it was bad because the purpose was too vague and the vagueness of the purpose was not cured by the specification of the locality to be benefited: see the judgment of Lord Finlay, L.C.; but the learned Lord Chancellor pointed out in his speech that, in the case of a gift of this nature the addition of a local limit might well make a difference in favour of its validity if the gift "was in favour of institutions within a certain area, the particular institution to be selected by the trustee."

Lord Atkinson said in the course of his judgment:

"It is the insufficiency of these words 'public purposes,' because of their vagueness and uncertainty, to identify and fix the limits of the class of individuals or objects from which the trustees are to choose that renders void a bequest for 'public purposes.' That is their weakness, and that weakness is not cured by coupling them with a definition or description of the physical area within which the public purposes are to be comprised."

But he went on to point out that the case under consideration had no resemblance to those in which property is vested in trustees to be applied for the support or benefit of such institutions of a particular class as may be in existence, or in the course of creation, in any given town or area at the time at which the will speaks. There is no vagueness or uncertainty in such cases at all.

And Lord Shaw said:

"Local limitations expressed by the words 'in connection with the parish of Lesmashagow or the neighbourhood' do not add any definiteness to the class of purposes or objects which it was in the mind of the testator to benefit or promote. The foundation of political clubs, schools of art, a zoological garden, or an astronomical observatory in Lesmahagow, along with a thousand other things in connection with that parish or its neighbourhood, might, in the trustees' opinion, be excellent, but the bequest is void by reason of the uncertainty as to which of them or which class of them the trustee meant to favour. This is exactly the reason which invalidates the bequest where there is no geographical reference. Local limitations do come into play and make the bequest effective if and when they provide the means of identifying the particular objects or institutions which the testator has meant to benefit.".'

(iii)

A trust for the benefit of a particular profession is not a valid charitable gift, even though the benefit conferred on the profession may also ensure to the benefit of the country as a whole: General Medical Council v Inland Revenue Comrs .

Applying these principles to the bequest I have to consider, it seems to me that, if I come to the conclusion that the dominant motive of the testatrix is to be found in the first and third of the three portions of the bequest to which I have referred above, or in either of them, the bequest will be a valid charitable bequest. Whether or not the establishment of "breathing spaces and air zones" or "the promotion of science, literature and music" are, apart from the association of these purposes with a particular locality, valid charitable objects I need not decide; for I feel no doubt but that, on the authority of the cases to which I have referred, I should be bound to hold that a bequest for the carrying out of those purposes in Stratford-on-Avon would be a valid charitable bequest.

The second portion, however, presents much greater difficulty. I do not think the establishment in perpetuity of a hotel for the entertainment of distinguished foreigners would be a valid charitable bequest and the fact that the premises were also to be available for the annual and provincial meetings of scientists connected with the Royal Institution would not suffice to save the bequest. If, therefore, I come to the conclusion that this portion expresses the dominant motive of the testatrix, I am bound to hold that the gift fails. This portion of the gift starts with the words "my intention being" and, having stated her intention, she goes on to express her objective as being "so that" the house and grounds should be at the service of selected and distinguished persons. Prima facie , therefore, the testatrix has herself indicated her dominant motive and I do not think I can properly regard this intention as being subservient servient to a more general intention to benefit the inhabitants of Stratford-on-Avon. The directions as to the open space and air zone are only casually introduced in connection with the directions as to the machinery to be employed in giving effect to the testatrix's bequest. The direction as to the promotion of science, literature and music appear to be ancillary to her direction that the income of her estate and copyrights shall be used for the unkeep and preservation of Mason Croft, her intention as to which she had already expressed in what I have called the second portion of the bequest.

In these circumstances, although the question is not without difficulty, I think I am bound to come to the conclusion that the dominant motive of the testatrix is to be found in the second portion of the bequest which begins with the words "my intention being." It therefore follows that, in my judgment, the trusts contained in the will of the testatrix with regard to Mason Croft and its contents and any property the income of which was directed thereby to be held in trust for the upkeep and preservation of Mason Croft are void for remoteness. In view of the uncertainty as to whether the testatrix left surviving any heir-at-law or next of kin, I must also direct the inquiry indicated in para 3 of the summons.

I turn now to the fourth question which is whether the defendants Alfred

Bridges and Bella Barber are entitled to any right of residence in Mason Croft or have any other right or interest therein. So far as Alfred Bridges is concerned, it was admitted in argument that, if I came to the conclusion on the main question that the trusts as to Mason Croft failed for remoteness, he could have no right of residence in Mason Croft or other right or interest therein since his right (if any) is clearly made dependent on his becoming custodian of Mason Croft under the abortive trusts. The directions as to Bella Barber are not so directly linked with the abortive trusts, but I have reluctantly come to the conclusion that, upon the true construction of the will as a whole, the directions as to residence in Mason Croft were all linked with the trusts which have failed and, therefore, fail with them. Alfred Bridges was to be custodian; Bella Barber was to "remain in Mason Croft as her home with the hope that she would find use for her excellent services in the upkeep and preservation of the house." No duties were in terms imposed on the cook, Anne Dance; but I think that, as I have said, the testatrix made these provisions on the basis that Mason Croft would be maintained as a hostel for distinguished visitors and that Alfred Bridges, Bella Barber and Anne Dance would from the nucleus staff of the hostel.

In view of the conclusion to which I have come, it is unnecessary for me to consider whether the very vague language used by the testatrix would, in any event, have formed the basis for a claim for payment of some sum out of the proceeds of the sale which will have ultimately to be effected as the result of the conclusion to which I have come on the main point.

Declaration accordingly. Costs to paid out of the estate.