Re Levien (deceased)

[1955] 3 All ER 35

(Judgment by: Danckwerts J)

Lloyds Bank Ltd v.
Worshipful Company of Musicians and Others

Court:
Chancery Division

Judge:
Danckwerts J

Subject References:
Charity
Music
Gift to promote the training of singers
Gift for the benefit of organists and for the advancement of organ music
Whether good charitable gifts

Case References:
Royal Choral Society v Inland Revenue Comrs - [1943] 2 All ER 101; 112 LJKB 648; 169 LT 100; 25 Tax Cas 263; 2nd Digest Supp
Income Tax Special Purposes Comrs v Pemsel - [1891] AC 531; 61 LJQB 265; 65 LT 621; 55 JP 805; 3 Tax Cas 53; 8 Digest (Repl) 312, 1
Re Allsop - (1884) 1 TLR 4; 8 Digest (Repl) 346, 271
Re Ogden - (1909) 25 TLR 382; 8 Digest (Repl) 396, 887
Re Shakespeare Memorial Trust - [1923] 2 Ch 389; 92 LJCh 551; 130 LT 56; 8 Digest (Repl) 330, 122

Hearing date:
Judgment date: 13 July 1955

Judgment by:
Danckwerts J

By his will a testator bequeathed a sum of money out of his residuary trust fund to the Worshipful Company of Musicians for the purpose of establishing and conducting a fund to be called "the Sir Charles Santley Memorial Fund" on trust to invest the same and to employ the annual income arising from the investments or some part thereof in awarding every year presentations to distinguished persons in the following professions: "(a) singers; (b) composers of vocal music; (c) writers upon the subject of singing; (d) researchers into matters relating to the human voice (including in such class, laryngologists and similar specialists upon the physiological aspect of singing)". The testator expressed his wishes (although he expressly did not impose any trust on the company in that behalf) as to the manner in which the fund should be administered mentioning that the presentations should not be money prizes or medals, but a piece of plate or a jewel, and that in awarding the presentations the administrative body should bear in mind "as part of their standard of excellence Santley's views and doctrine upon singing and voice production as exemplified" in two monographs by the testator. The testator further directed that the residue of his residuary trust fund should be paid to the said company for the purpose of establishing and conducting a trust fund to be called "the W T Best Memorial Fund" and provided that the income of the trust fund should from time to time at the discretion of the company or a committee be applied for "the maintenance support education assistance or otherwise for the benefit of any one or more person or persons who may be musicians or students of music whether in a professional or amateur capacity and whose work or study may be devoted wholly or partly to the art of the organ in its higher aspects whether as executant composer transcriber or writer and whom the company committee or other governing body ... may from time to time select as being in their opinion of especial merit and deserving of such maintenance support education assistance or benefit or alternatively such income shall ... be applied for the advancement or study of the music of the organ in such other manner as the company committee or other governing body ... shall for the time being think fit and proper". The testator further provided that at the discretion of the company or committee or other governing body the whole or such part or parts of the capital of the Sir Charles Santley Memorial Fund and the W T Best Memorial Fund as the company might think fit might be applied for all or any of the purposes prescribed for the application of the income of either fund.

Held - The purpose of the trusts of the Sir Charles Santley Memorial Fund was to effect the training of singers and to benefit the public by producing better singers, and the purpose of the trusts of the W T Best Memorial Fund was to produce better organists and organ music which was for the public benefit; in neither case were the trusts for the benefit of individuals without the element of benefit to the public requisite for a valid charitable trust, and accordingly the trusts of the funds were charitable trusts.

Royal Choral Society v Inland Revenue Comrs ([1943] 2 All ER 101) applied.

Note

As to the promotion of education in particular subjects being charitable purposes, see 4 Halsbury's Laws (3rd Edn) 218, para 497; and for cases on the subject, see 8 Digest (Repl) 328-330, 108-118.

Adjourned Summons

The plaintiff, Lloyds Bank Ltd, as the executor and trustee of the will of the testator, John Joseph Mewburn Levien, applied to the court by originating summons for determination of the question, among others, whether on a proper construction of the will the trusts thereby declared of "the Sir Charles Santley Memorial Fund" and of "the W T Best Memorial Fund" were charitable.

J A Armstrong for the plaintiff, the trustee of the will.

N S S Warren for the first defendant, the Worshipful Company of Musicians.

T J R Barnes for the second defendant, one of the next of kin.

B J H Clauson for the Attorney General.

13 July 1955. The following judgment was delivered.

DANCKWERTS J . This case concerns the will of the testator, which was dated 17 January 1945. The testator died on 2 July 1953. He was very much interested in singing, of which he was a professor, and he had been a liveryman of the Worshipful Company of Musicians since 1912 (a company of which I myself became a liveryman in 1913), but the Worshipful Company of Musicians is only interested in the matter in the position of trustee, and the question at issue is whether the trusts which they are directed to carry out are of a charitable nature and therefore valid.

The trusts are contained in cl 9 of the will which directs the bank to stand possessed of the net residue of his said estate therein referred to as "the residuary trust fund" on trusts which are declared in the following terms:


"(1) Upon trust in the first place to set aside out of the residuary trust fund the sum of £2,000 and to pay and transfer the same to the Worshipful Company of Musicians (hereinafter called 'the company') for the purpose but subject to the conditions hereinafter mentioned of establishing and conducting a trust fund to be called 'the Sir Charles Santley Memorial Fund' according to the following provisions and conditions namely: Upon trust to invest the same in or upon any of the investments from time to time authorised by law for the investment of trustee money with power from time to time to vary such investments for others of the same nature and to employ the annual income arising from the same investments or some part thereof in awarding every year presentations to distinguished members of either sex of any of the following professions viz.:-(a) singers; (b) composers of vocal music; (c) writers upon the subject of singing; (d) researchers into matters relating to the human voice (including in such class, laryngologists and similar specialists upon the physiological aspect of singing); and in payment of all costs and expenses incidental thereto. And it is my desire though I expressly do not impose any trust upon the company in that behalf but leave the matter to their unfettered discretion that they will administer the Sir Charles Santley Memorial Fund in accordance with the following principles, viz.: (a) The fund shall be administered by a standing committee of three chosen from the pastmasters and assistants of the company. (b) The number of the presentations to be awarded in any one year and the respective recipients shall be decided by such committee subject to confirmation by the master, wardens, and court. (c) The presentations shall not be money prizes or medals, but a piece of plate, a jewel or such other token as the committee shall subject to confirmation as aforesaid decide. (d) In awarding the presentations the committee shall always bear in mind as part of their standard of excellence Santley's views and doctrine upon singing and voice production as exemplified in my two monographs 'Sir Charles Santley' and 'Some Notes for Singers'. (2) Upon trust in the second place to hold the residue of the capital and income of the residuary trust fund after first setting aside and applying the Sir Charles Santley Memorial Fund as prescribed by sub-s. (1) of this clause and to pay and transfer the same to the company for the purpose but subject to the conditions hereinafter mentioned of establishing and conducting a trust fund to be called 'the W. T. Best Memorial Fund' according to the following provisions and conditions namely: (a) Whereas the gift is made by me in memory of W. T. Best late organist of St. George's Hall, Liverpool and the Handel Festival the capital and income of the trust fund if accepted by the company shall be kept separate from the other funds of the company and be called 'the W. T. Best Memorial Fund'. (b) The income of the trust fund shall from time to time at the discretion of the company or a standing committee of three chosen from the pastmasters and assistants of the company (and subject if the company shall so decide to confirmation by the master wardens and court or other governing body) be applied during such periods whether continuous or discontinuous as they shall for the time being think fit and proper for the maintenance support education assistance or otherwise for the benefit of any one or more person or persons who may be musicians or students of music whether in a professional or amateur capacity and whose work or study may be devoted wholly or partly to the art of the organ in its higher aspects whether as executant composer transcriber or writer and whom the company committee or other governing body as aforesaid may from time to time select as being in their opinion of especial merit and deserving of such maintenance support education assistance or benefit or alternatively such income shall from time to time at such discretion as aforesaid be applied for the advancement or study of the music of the organ in such other manner as the company committee or other governing body as aforesaid shall for the time being think fit and proper provided always and I hereby declare that the company shall have full power from time to time or at any time in their discretion or that of their committee or other governing body as aforesaid to expend and apply for all or any of the purposes prescribed in sub-s (1) and sub-s (2) of this clause the whole or such part or parts of the capital of the Sir Charles Santley Memorial Fund and the W T Best Memorial Fund as the company may think fit and determine and that in all other respects the company shall have an absolute and unfettered discretion as to the mode and manner of their application of either of the trust funds and the income thereof respectively."

The case which gives me the greatest assistance with regard to the questions which I have to decide is Royal Choral Society v Inland Revenue Comrs ([1943] 2 All ER 101). That was a case of a society which was formed for the advancement of choral singing in London, and the question was whether it was "established for charitable purposes only" and whether its income was "exclusively applied for such purposes" in regard to income tax law. I find some observations of Lord Greene MR which seem to me to be very relevant to the matter which I have to decide. After discussing the question of whether the matter was a matter of law or a matter of fact, Lord Greene continued as follows ([1943] 2 All ER at p 104):


"That, of course, does not conclude the matter; because it has to be shown that the purpose of this body of persons is charitable and only charitable. We are accordingly thrown back upon an examination of the purposes for which it was established and for which it carries on its work. It is the purpose of the members of the society, ten in number, that is relevant. The maintenance of the choir may be regarded in two aspects: first as an educative process for the members of the choir; and, secondly, as an instrument by which the performance of this type of music is presented to the public. I should have said that there is no flavour of commercial profit or anything of that kind, about this society. So far as the choir is concerned the object, as I have said, paraphrasing the language of the rule, is the encouragement and advancement of choral singing; or, taking the language of the rule, 'the promotion of the practice and performance of choral works'. Bearing in mind the nature of the works in question and the medium through which they are performed, it seems to me that the objects, so far as the public are concerned, are educational; and in so far as possibly they may not be regarded as educational, they would fall within the fourth case referred to in LORD MACNAGHTEN'S analysis in Income Tax Special Purposes Comrs. v. Pemsel ([1891] A.C. at p. 583). Dealing with the educational aspect from the point of view of the public who hear music, the Solicitor-General argued that nothing could be educational which did not involve teaching, viz., teaching, as I understood him, in the sense of a master teaching a class. He said that in the domain of art the only thing that could be educational in a charitable sense would be the education of the executants: the teaching of the painter, the training of the musician, and so forth. I protest against that narrow conception of education when one is dealing with aesthetic education. Very few people can become executants, or at any rate executats who can give pleasure either to themselves or to others; but a very large number of people can become instructed listeners with a trained and cultivated taste. In my opinion, a body of persons established for the purpose of raising the artistic taste of the country and established by an appropriate document which confines them to that purpose, is established for educational purposes, because the education of artistic taste is one of the most important things in the development of a civilised human being.

"In the case of artistic taste, one of the best ways of training it is by presenting works of high class and gradually training people to like them in preference to works of an inferior class. The people who undergo this process go no doubt with the idea of being amused or entertained; but it is not the state of mind of the people who go to the performance which matters for the present purposes, it is the purpose of the people who provide it which is important. If the people who are providing the performance are really genuinely confining their objects to the promotion of aesthetic education by presenting works of a particular kind, or up to a particular standard, it seems to me that that is just as much education (and, in fact, having regard to the subject-matter the best available method of education) as lecturing or teaching in a class, or anything of that kind. The Solicitor-General referred to a number of cases in which he said it was established that education in the charitable context is limited to teaching in that narrow sense. In my opinion, those cases do not establish any such proposition. I should be very sorry to think that they did. The matters that were being dealt with in those cases have nothing to do with aesthetic education or the cultivation and improvement of public taste in music or the other arts. I cannot help thinking that the Board of Education, which has taken the Council for the Encouragement of Music and the Arts under its wing, would be very surprised to learn that that enterprise, in which public funds are now being used, was not an educative one."

Then Lord Greene MR deals with the evidence of Sir George Dyson, and he criticises the passage in Tudor On Charities as being misleading ([1943] 2 All ER at p 106):


"The passage says (TUDOR ON CHARITIES (5th Edn.) at p. 39): 'The fine arts, however, are probably not regarded as objects of charity; and a gift to encourage artistic pursuits was held not charitable. But it is otherwise if the element of instruction is introduced: a gift for an art school is good'. I do not know what that passage means when it says: 'The fine arts are probably not regarded as objects of charity'. Does it mean that education of artistic taste is not education in the charitable sense? If it does, I dissent from that most vehemently. There is not a particle of authority in support of such a view. If it means that the only way you can bring the fine arts into the charmed circle of charity is by setting up a class to teach executants, whether to teach actors to act, or painters to paint, or musicians to perform, again I dissent most vehemently from any such proposition. Accordingly, in my opinion, that paragraph is inadequate and, indeed, misleading."

Then he refers to two authorities; the first is Re Allsop (1884) (1 TLR 4), and he discusses that, and he then refers to Re Ogden (1909) (25 TLR 382) and continues ([1943] 2 All ER at p 107):


"There the testator desired that his executors, with the assistance of certain gentlemen and an art master, and any persons they might call in to assist them, should expend his residue (25 T.L.R. at p. 382): ' ... in any manner they may think desirable to encourage artistic pursuits or assist needy students in art'."

I have referred to that because that case seems to me to contain the principle on which it was argued in the present case that the trusts were not charitable. The Master of the Rolls continued ([1943] 2 All ER at p 107):


"Again, the report of the case is very meagre. LORD COZENS-HARDY, M.R., said that no less than three times in the previous year had it fallen to his lot to express his view on what the law was in that kind of case. He went on (25 T.L.R. at p. 383): 'In the present case the Vice-Chancellor had thought that the trustees were bound to spend the money to encourage in some way or other education in art'. With the greatest respect to the Vice-Chancellor, he did not see how it was possible to get that meaning out of the words. I do not myself derive any assistance from that case: but it is worth pointing out that a gift merely 'to encourage artistic pursuits' might be expended in a way that nobody would consider charitable; for instance in merely providing for one or two individuals paints and paintbrushes, or a grand piano on which the beneficiaries could play in their drawing-room. I apprehend nobody would say that that was a charitable object; but the money could have been spent for some such purpose as that."

Then he refers to Re Shakespeare Memorial Trust ([1923] 2 Ch 389) which was a case before P O Lawrence J and which he said was in line with the conclusion which he had reached.

It is argued in this case that one could find, consistently with the trusts laid down by the testator, that the trustees could apply the money for the purpose of benefiting individual singers or individual organists, merely for benefiting them in their way of life, I suppose, and therefore not for a purpose which is wholly charitable. It is argued quite correctly that if one finds that application may be made for purposes which are not charitable, then that invalidates the whole trust because one at once gets the difficulty of uncertainty and the whole trust is invalid and fails. One has, however, to read the trust as a whole. In the case of the Sir Charles Santley Memorial Fund, reading the trust as a whole and ignoring as not being lawfully binding the part of the trust which is plainly of a precatory nature and expresses the testator's hope, one finds that the object of the whole trust is to improve the training of singers, including research by experts like laryngologists and others in the methods of singing, and therefore to produce better singers. The object is really to effect the training of singers of serious music for aesthetic purposes, and it seems to me to fall exactly within the words used by Lord Greene MR in Royal Choral Society v Inland Revenue Comrs. Taking the trust as a whole, it is not intended to be a trust for the benefit of individual singers, but to be a trust to benefit the public by producing better singers and voice production.

It is even clearer that the object of the other trust, the W T Best Memorial Fund, is educational (to produce the better education of performers on the organ) because one finds in the concluding words of cl 2, before the proviso, a reference to application


"for the advancement or study of the music of the organ in such other manner as the company committee or other governing body as aforesaid shall for the time being think fit and proper."

That indicates that what the testator has in mind is not a gift for the benefit of individual organists, but to produce better organists and better organ music, and that seems to me to be for the benefit of the public and to fall within the educational trusts, or within the fourth class referred to in Lord MacNaghten's analysis in Income Tax Special Purposes Comrs v Pemsel.

Accordingly, it seems to me, that, on a proper reading of the trusts in the present case, the trusts are entirely confined to charitable purposes and are perfectly valid. Declaration accordingly.

Solicitors: Palmer, Bull & Mant (for the plaintiff); Waterhouse & Co (for the first defendant); Wegg-Prosser & Co (for the second defendant); Treasury Solicitor.