Re Scarisbrick's Will Trusts; Cockshott v. Public Trustee and Ors

[1951] 1 All ER 822

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(Judgment by: Jenkins LJ)

Re Scarisbrick's Will Trusts
Between: Cockshott
And: Public Trustee and Ors

Court:

Judges: Sir Raymond Evershed
Jenkins LJ
Hodson LJ

Subject References:
SUCCESSION
GIFTS
CHARITY
Relief of poverty
Relations in needy circumstances
Immediate gift

Case References:
Re Compton - [1945] 1 All ER 198; [1945] Ch 123; 114 LJCh 99; 172 LT 158; 2nd Digest Supp
Isaac v Defriez - (1764), Amb 595; 27 ER 387; 44 Digest 890, 7479
Gibson v South American Stores (Gath & Chaves) Ltd - [1949] 2 All ER 18; [1949] Ch 572; [1949] LJR 1228; on appeal, [1949] 2 All ER 985; [1950] Ch 177; 2nd Digest Supp
Lambert v Thwaites - (1866), LR 2 Eq 151; 35 LJCh 406; 14 LT 159; 37 Digest 478, 756
Wilson v Duguid - (1883), 24 ChD 244; 53 LJCh 52; 49 LT 124; 37 Digest 532, 1232
Brown v Higgs - (1801), 8 Ves 561; 32 ER 473; (1813), 18 Ves 192; 34 ER 290; 44 Digest 746, 6037a
A-G v Price - (1810), 17 Ves 371; 34 ER 143; 8 Digest 242, 12
Oppenheim v Tobacco Securities Trust Co Ltd - [1951] 1 All ER 31
Admiralty Comrs v Valverda (Owners) - [1938] 1 All ER 162; [1938] AC 173; 107 LJKB 99; 158 LT 281; Digest Supp
A-G v Comber - (1824), 2 Sim & St 93; 57 ER 281; 8 Digest 244, 33
A-G v Bucknall - (1742), 2 Atk 328; 26 ER 600; 8 Digest 396, 2203
White v White - (1802), 7 Ves 423; 32 ER 171; 8 Digest 242, 10
Mahon v Savage - (1803), 1 Sch & Lef 111; 44 Digest 890, 7473 iv
Liley v Hey - (1842), 1 Hare 580; 11 LJCh 415; 66 ER 1162; 8 Digest 243, 25
Gillam v Taylor - (1873), LR 16 Eq 581; 42 LJCh 674; 28 LT 833; 8 Digest 242, 14
Thomas v Howell - (1874), LR 18 Eq 198; 43 LJCh 799; 30 LT 244; 38 JP 693; 8 Digest 243, 17
Nash v Morley - (1842), 5 Beav 177; 11 LJCh 336; 49 ER 545; 8 Digest 293, 710
Re Hobourn Aero Components, Ltd's Air Raid Distress Fund - [1946] 1 All ER 501; [1946] Ch 194; 115 LJCh 158; 174 LT 428; 2nd Digest Supp
Gilmour v Coats - [1949] 1 All ER 848; [1949] AC 426; [1949] LJR 1034; 2nd Digest Supp
Re Drummond - [1914] 2 Ch 90; 83 LJCh 817; 111 LT 156; 8 Digest 244, 28
Spiller v Maude - (1881), 32 ChD 158; 8 Digest 348, 1412
Harding v Glyn - (1739), 1 Atk, 469; 26 ER 299; 44 Digest 890, 7477
A-G v Northumberland (Duke) - (1877), 7 ChD 745; 47 LJCh 569; varied without affecting this point, (1878), 38 LT 245; 8 Digest 306, 856
Edge v Salisbury - (1749), Amb 70; 27 ER 42; 44 Digest 893, 7517
Goodinge v Goodinge - (1749), 1 Ves Sen 231; 27 ER 1001; 44 Digest 616, 4436
Brunsden v Woolredge - (1765), Amb 507; 27 ER 327; 44 Digest 890, 7481
Widmore v Woodroffe - (1766), Amb 636; 27 ER 413; 44 Digest 890, 7482

Hearing date: 15 June 1950, 28 February 1951, 1-2 March 1951
Judgment date: 16 March 1951

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Judgment by:
Jenkins LJ

This is an appeal from a judgment of Roxburgh J dated 21 December 1949, on an originating summons raising questions as to the validity and effect in the events which had happened of the trusts declared by the will of Dame Bertha Petronella Scarisbrick (whom I will call "the testatrix") with respect to her residuary real and personal estate.

By her will dated 27 July 1911 (so far as material for the present purpose) the testatrix appointed her son, Sir Tom Talbot Leyland Scarisbrick, Bart., and her two daughters, Alexandra Emma von Lang Puchof and Erneste Beatrice Kraemer, to be executors and trustees thereof, and made (by cl 11) the following disposition of her residuary real and personal estate:

"I devise and bequeath all my real and personal estate in the United Kingdom of Great Britain and Ireland and in the British Dominions beyond the seas not hereby otherwise disposed of unto my trustees upon trust to pay the income thereof in equal shares to my said daughters during their joint lives and to the survivor of them during her life and after the death of the survivor of them to pay the same income to my said son Sir Tom Talbot Leyland Scarisbrick Bart. during his life and after the death of the survivor of my said daughters and son the trustees for the time being of this my will shall hold the same upon trust for such relations of my said son and daughters as in the opinion of the survivor of my said son and daughters shall be in needy circumstances and for such charitable objects either in Germany or in the United Kingdom of Great Britain and Ireland (preferably charitable objects connected with the Roman Catholic Church and faith) for such interests and in such proportions and manner in every respect as the survivor of my said son and daughters shall by deed or will appoint."

The testatrix died on 28 April 1915, survived by the son and two daughters above referred to, and her will, with one codicil thereto not material for the present purpose, was duly proved by the son on 15 June 1915, power (never exercised) to prove the same being reserved to the two daughters. The son, Sir Tom Scarisbrick, died on 18 May 1933, and his interest as heir at law of the testatrix in any real estate of hers undisposed of by her will passed to the Public Trustee as his legal personal representative. He left him surviving one child, viz, a son, Sir Everard Talbot Scarisbrick, Bart. The daughter, Mrs Puchof, died on 2 July 1940, survived by a daughter, Mary Erneste von Schmieder. She had one other child, viz, a son, Karl Herman Ernst von Lang Puchof, but he has not been heard of for many years, and it is not known whether he is living or dead or whether he ever had any issue. Mrs Kraemer, the remaining daughter of the testatrix, died without issue on 12 May 1948. She, as "the survivor" of the testatrix' "said son and daughters", was the person by whom the power of appointment conferred by cl 11 of the will became exercisable according to the terms of that clause, but in fact she never did exercise it. The whole of the testatrix' personal estate was exhausted in the payment of funeral and testamentary expenses, debts, and legacies, and the property now remaining subject to the trusts of her will consists exclusively of assets forming part of or representing her real estate.

It will be apparent from the foregoing narrative that questions of considerable difficulty arose with respect to the destination of the trust property on the death of Mrs Kraemer, particularly in view of the inclusion amongst the objects of the unexercised power of

"such relations of my said son and daughters as in the opinion of the survivor of my said son and daughters shall be in needy circumstances."

The remaining objects of the power are, of course, by the express terms of the will exclusively charitable, and if the power had ben confined to these it would only have been necessary to apply to the court for the settlement of a scheme with a view to the application of the trust property to charitable objects in Germany or in the United Kingdom selected with due regard to the preference expressed by the testatrix for charitable objects connected with the Roman Catholic Church and faith. But is the trust charitable at all so far as it includes as objects of the power such relations of the three children of the testatrix as in the opinion of the survivor of them shall be in needy circumstances? If it is charitable quoad these objects, then, no doubt, the court can and should give effect to the charitable purpose of the testatrix by means of a scheme providing for the selection of the persons who are to take and the amounts they are to receive, and thus making good the failure of Mrs Kraemer to exercise the power herself. If, on the other hand, the trust is not charitable quoad these objects, what effect (if any) can be given to this branch of it in default of appointment? Is there an intestacy on the ground of uncertainty, or is there an implied trust in default of appointment in favour of some ascertainable class of "relations" of the three children, limited or not to such members of the class as can be shown to be in "needy circumstances"? Apart from the agreement, to which I am about to refer, that question would on the face of it give rise to two further questions, namely: If there is such an implied trust, to what proportion of the property does it extend? and, if there is an intestacy, is it limited to some proportion of the property or does the uncertainty to which it is due extend to and vitiate the entire disposition?

Before Roxburgh J the area of controversy was limited in the following respects: (i) In the proceedings as then constituted, the plaintiffs were Sir Everard Scarisbrick and Mr George Cockshott as the present trustees of the will, and the only defendants were the Public Trustee (as representing the estate of Sir Tom, the heir at law) and the Attorney General (as representing the claims of charity). In those circumstances (to quote the learned judge) ( [1950] 1 All ER 144 ):

"It appeared early in the argument that there might be some conflict between the heir at law, who was represented by counsel, and other persons, who were not represented, as to the destination of any part of the fund not effectually given to charity, and it was thereupon agreed that my decision should be confined to the question whether the whole, or, if not, how much, of the fund was thus effectually given. The bequest plainly falls into two parts, and the second part is admittedly charitable."

(ii) It was agreed before Roxburgh J between the Public Trustee and the Attorney General that half the property should in any event be considered as having been effectively devised for the admittedly and expressly charitable objects mentioned in the second branch of the trust. In view of this agreement and the state of the case as regards parties the learned judge in effect confined himself to the question whether the remaining half of the trust property, ie, the half to which the trust for relations in needy circumstances (as distinct from the trust for charitable objects eo nomine) was in accordance with such agreement treated as confined, was effectively devoted to charity, and on grounds to which I will presently refer decided this question in the negative, declaring accordingly that one half and no more of the trust property was effectively so devoted, and directing the settlement of a scheme for the regulation and management of such one half. When the case first came before this court, it was adjourned with a view to amendment as regards parties in order that we might deal with the destination of the half of the property not effectively devoted to charity according to the decision of Roxburgh J in the event of that decision being upheld. Accordingly, Sir Everard was struck out as a plaintiff and he and Frau von Schmieder were added as defendants.

Sir Everard's counsel argued for a trust in default of appointment in favour of the relations (limited on the principle stated in Wilson v Duguid (24 ChD 251) to next of kin) of the testatrix' son and daughters. Frau von Schmieder's counsel argued for a trust in default of appointment in favour of such relations similarly limited, but with a further limitation to next of kin in needy circumstances. Sir Everard's counsel supported counsel for the Public Trustee in defending the decision of Roxburgh J while opposing him in his claim that an intestacy resulted. Frau von Schmieder's counsel steered a somewhat complicated course, his primary claim being to the effect that his client, being in needy circumstances, should participate on the footing of a valid charitable trust, and the contention above indicated being in the nature of an alternative in the event of the trust being held not to be charitable. It should be noted that the agreement between the Public Trustee and the Attorney General by which the contest was limited to half the trust property was in this court adhered to by them, and accepted by the other parties. But it does not follow that for the purpose of determining the primary question whether the trust is charitable so far as it includes relations in needy circumstances as objects of the power cl 11 should be construed as if it gave one half of the property to such relations of the testatrix' three children as in the opinion of the survivor of them should be in needy circumstances for such interests, etc, as such survivor should appoint, and the other half to such charitable objects eo nomine for such interests, etc, as such survivor should appoint. Whatever the position in default of appointment may be, it is clear that under cl 11 as a matter of construction Mrs Kraemer, as the survivor of the three children of the testatrix, could have appointed the whole of the property to relations in her opinion in needy circumstances to the exclusion of charitable objects eo nomine, or could have appointed the whole to charitable objects eo nomine to the exclusion of relations in needy circumstances, or could have appointed in any proportions she thought fit between or amongst any relations in needy circumstances and any charitable object or objects eo nomine.

As regards what I have termed the primary question, the following general propositions may be stated: (i) It is a general rule that a trust or gift in order to be charitable in the legal sense must be for the benefit of the public or some section of the public: see Re Compton; Re Hobourn Aero Components Ltd's Air Raid Distress Fund; Gilmour v Coats. (ii) An aggregate of individuals ascertained by reference to some personal tie (eg, of blood or contract) such as the relations of a particular individual, the members of a particular family, the employees of a particular firm, the members of a particular association, does not amount to the public or a section thereof for the purposes of the general rule: see Re Drummond; Re Compton; Re Hobourn Aero Components Ltd's Air Raid Distress Fund; Oppenheim v Tobacco Securities Trust Co Ltd. (iii) It follows that according to the general rule above stated a trust or gift under which the beneficiaries or potential beneficiaries are confined to some aggregate of individuals ascertained as above is not legally charitable even though its purposes are such that it would have been legally charitable if the range of potential beneficiaries had extended to the public at large or a section thereof (eg, an educational trust confined as in Re Compton to the lawful descendants of three named persons, or, as in Oppenheim v Tobacco Securities Trust Co Ltd to the children of employees or former employees of a particular company). (iv) There is, however, an exception to the general rule in that trusts or gifts for the relief of poverty have been held to be charitable even though they are limited in their application to some aggregate of individuals ascertained as above, and are, therefore, not trusts or gifts for the benefit of the public or a section thereof. This exception operates whether the personal tie is one of blood (as in the numerous so-called "poor relations" cases, to some of which I will presently refer) or of contract (eg, the relief of poverty amongst the members of a particular society, as in Spiller v Maude, or amongst employees of a particular company or their dependants, as in Gibson v South American Stores (Gath & Chaves) Ltd). (v) This exception cannot be accounted for by reference to any principle, but it is established by a series of authorities of long standing, and must at the present date be accepted as valid, at all events as far as this court is concerned: see Re Compton, though doubtless open to review in the House of Lords (as appears from the observations of Lord Simonds and Lord Morton of Henryton in Oppenheim v Tobacco Securities Trust Co Ltd).

Applying these general propositions to the present case, I ask myself whether the trust in cl 11 for

"such relations ... as in the opinion of the survivor of [the testatrix'] son and daughters shall be in needy circumstances ... for such interests and in such proportions ... as the survivor ... shall by deed or will appoint"

is a trust for the relief of poverty. If it is such a trust, then, as I understand the exception above referred to, it matters not that the potential objects of such trust are confined to relations of the son and daughters. If language means anything, a person in needy circumstances is a person who is poor and as such a proper object of charity, and no one can take under this trust who is not in needy circumstances. I do not think the effect of the expression "in needy circumstances" is materially altered by the qualifying words "in the opinion of the survivor ... " "Poverty" is necessarily to some extent a relative matter, a matter of opinion, and it is not to be assumed that the person made the judge of "needy circumstances" in the present case would have acted otherwise than in accordance with an opinion fairly and honestly formed as to the circumstances, needy or otherwise, of anyone coming into consideration as a potential object of the power. Under a similar trust which did not expressly make the appointor's opinion the test of eligibility the appointor would in practice have to make the selection according to the best of his or her opinion or judgment. The express reference to the appointor's opinion merely serves to reduce the possibility of dispute as to the eligibility or otherwise of any particular individual on the score of needy circumstances. Accordingly, I dismiss the words "in the opinion of the survivor" as having no material bearing on the character of this trust. In so doing, I am fortified by the similar conclusion reached in this court as to the effect of the words "in the opinion of the London board" in Gibson v South American Stores (Gath & Chaves) Ltd ( [1949] 2 All ER 989 ).

It is, no doubt, true that a gift or trust is not necessarily charitable as being in relief of poverty because the object or objects of it in order to take must be poor. Such a gift or trust may be no more than an ordinary gift to some particular individual or individuals limited to the amount required to relieve his or their necessities if in necessitous circumstances. One can conceive of a testator making a limited provision of this character for a child or children whose conduct, in his view, had reduced their claims on his bounty to a minimum. A disposition of that sort would obviously not be for the relief of poverty in the charitable sense. The same must be said of gifts to named persons if in needy circumstances, or to a narrow class of near relatives, as, for example, to such of a testator's statutory next of kin as at his death shall be in needy circumstances. It is difficult to draw any exact line, but I do not think the trust here in question can fairly be held disqualified as a trust for the relief of poverty in the charitable sense on grounds such as those illustrated above. The class of relations to whom the selective power of appointment here extends is not confined to relations of the testatrix herself but consists of relations of the testatrix' son and daughters. "Relations" in this context cannot, in my opinion, be construed as meaning only the statutory next of kin of the son and daughters. It is, I think, well settled that a power of selection amongst the relations of a given person, as distinct from a plain gift to such relations, extends to relations in the full sense (ie, all persons who can claim a common ancestor with the person in question) and is not confined to statutory next of kin as has been done in cases of plain gifts to "relations" to prevent complete failure of such gifts on the ground of uncertainty: see Harding v Glyn; Mahon v Savage.

Moreover, the language used points to a class of "relations" common to all three children of the testatrix, which is appropriate to "relations" in any degree, but hardly to statutory next of kin, as the statutory next of kin of each child would comprise a different class, and the trust is not expressed to be for the respective relations of the three children. The ambit of the trust thus extends to relations in every degree of the three children on both sides of the family. It should be added that the class of potential beneficiaries falls to be ascertained at the death of the survivor of the three children, not at the testatrix' own death. The power, therefore, extends to such of the relations in every degree of the three children on both sides of the family as might be in existence at the death of the survivor of the three children, and should then, in the opinion of such survivor, be in needy circumstances. Thus the class of potential beneficiaries, so far from being confined to a limited number of individuals whom the testatrix might be taken to have regarded as having some personal claim on her bounty, at all events to the extent necessary to relieve them from want, is so extensive as to be incapable of being exhaustively ascertained, and includes persons whom the testatrix may never have seen or heard of, and persons not even in existence at the time of her death.

Some gifts of the "poor relations" type may be found on their true construction to be gifts to the poorest of the class or to the class with a preference for the poorest, thus failing to satisfy the observation of Sir George Jessel MR in A-G v Northumberland (Duke) (7 ChD 749) that:

"A gift which is not a gift to the poor, that is, the actually poor, is not a charity."

That is not the case here. As pointed out above, no part of the property is appropriated to the exclusive purpose of appointment amongst the relations in needy circumstances. A person shown to be a relation and to be in needy circumstances would have become eligible as an object of the power, but neither any one relation individually nor even all the relations collectively (on the impossible supposition that they could be exhaustively ascertained) would have been entitled to claim that some part of the property must in any event come to him or to them or some of them, inasmuch as the whole of the property could have been appointed to charitable objects eo nomine. Accordingly, in the view I take, this is a trust for the relief of poverty in the charitable sense amongst the class of relations described, and, being a trust for the relief of poverty, is, in the view of the exception above stated, not disqualified from ranking as a legally charitable trust by the circumstance that its application is confined to a class of relations (albeit a wide class) with the result that its potential beneficiaries do not comprise the public or a section thereof under the decisions to which I have referred. I am, accordingly, of opinion that as the law now stands the trust in question should be upheld as a valid charitable trust for the relief of poverty.

The learned judge took a different view. He founded himself, in effect, on the reluctance with which this court in Re Compton recognised the exception of gifts or trusts for the relief of poverty from the general rule-that all forms of charity to be legally such must be for the benefit of the public or a section thereof-as an exception of an anomalous character, which could not be assigned to any principle, but rested simply on the effect of a series of old decisions not now properly open to question in this court. The exception being of that nature, the learned judge reasoned, in effect, that where a gift ostensibly for the relief of poverty, but lacking the element of public benefit required under the general rule, is in question, it should, in accordance with the general rule, be held invalid as a charitable gift, unless it is in such terms as to fall unequivocally within the exception as established by the decided cases. Approaching the authorities from this point of view, the learned judge found that, while gifts in perpetuity for poor relations had been uniformly held charitable, there was a conflict of authority as to the charitable status of gifts for immediate distribution amongst poor relations. He held that the trust in the present case was of the latter description, and accordingly that, as the decided cases showed no more than that there was a conflict of authority on the question whether it was to be regarded as charitable or not, its claim to fall within the exception was not made out, with the result that the general rule must be applied, and that the trust in the present case did not qualify as a valid charitable trust, because it was not for the benefit of the public or a section thereof.

We were referred, as was the learned judge, to a large number of the so-called "poor relations" cases. In some of them gifts for immediate distribution amongst poor relations variously described have been held charitable: see, eg, A-G v Bucknall; Mahon v Savage. In others gifts for immediate distribution amongst such persons have been held (like gifts to "relations" simpliciter) to be confined to the statutory next of kin of the propositus, the implication being that they were regarded as mere gifts to individuals not falling within the ambit of charity at all, which would accordingly fail for uncertainty unless so confined: see, eg, Edge v Salisbury; Goodinge v Goodinge; Brundsden v Woolredge; Widmore v Woodroffe. On the other hand, gifts of a perpetual character for the benefit of poor relations variously described have uniformly been held charitable: see Isaac v Defriez; White v White; A-G v Price; Gillam v Taylor. It does not appear that in all the cases of this type the perpetual character of the gift was the ratio decidendi. Indeed, White v White may be said to cut both ways, as, while the record shows the trust for putting out apprentices to have extended to the children of two families and their descendants (which implies perpetuity), it also shows that the capital as well as the income was applicable for that purpose (which in practice would necessarily limit the duration of the trust by exhaustion of the fund). But, in A-G v Price, Sir William Grant MR following Isaac v Defriez, said (17 Ves 374):

"This seems to be just as much in the nature of a charitable bequest as that. It is to have perpetual continuance, in favour of a particular description of poor; and is not like an immediate bequest of a sum to be distributed among poor relations."

It was, I think, on this observation of Sir William Grant's, that the learned judge largely founded himself in deciding as he did in the present case. In this connection, reference may also be made to the following passage from the judgment of Sir John Wickens V-C, in Gillam v Taylor (LR 16 Eq 584):

"The words here seem to me to import, beyond all question, the creation of a perpetual fund or institution, in which no person or persons is or are to have a personal right, but which is to be given only to such as need in the opinion of the trustees, and to be given to them according to their necessities."

I should also refer to Thomas v Howell, where a gift of £200 each to ten poor clergymen to be selected by a specified person was held to be simply a gift to individuals just as if they had been actually named in the will and therefore not a charitable gift and not defeated by the Charitable Uses Act, 1735. Liley v Hey, which also raised the question of mortmain, concerned a trust on the face of it unlimited in time to distribute the rents and profits of land annually amongst certain families according to their circumstances as in the opinion of the trustees they might need such assistance. This trust was held by Sir James Wigram V-C, not to involve a perpetuity and not to be avoided by the Statute of Mortmain, but the decision, which has been doubted, seems to have turned on the construction which the Vice-Chancellor placed on the gift as being, in the first instance (in effect) no more than a discretionary trust for a number of persons during their respective lives, and therefore free from objection during that period.

I find myself unable to accept the learned judge's view as to the effect of the authorities. I think the true question in each case has really been whether the gift was for the relief of poverty among a class of persons, or rather, as Sir William Grant MR put it, a particular description of poor, or was merely a gift to individuals, albeit with relief of poverty amongst those individuals as the motive of the gift, or with a selective preference for the poor or poorest amongst those individuals. If the gift is perpetual in character that, no doubt, is an important circumstance as demonstrating that the intention cannot have been merely to benefit the statutory next of kin of the propositus or other particular individuals identified by the gift. Moreover, the gift, if perpetual, can only be supported on the footing that it is charitable-an illogical though, in past practice, probably a persuasive, reason for holding it such. But I see no sufficient ground in the authorities for holding that a gift for the benefit of poor relations qualifies as charitable only if it is perpetual in character. I do not think the observation of Sir William Grant MR above referred to, goes by any means as far as that. It is fully satisfied if taken as meaning that an immediate bequest of a sum to be distributed among poor relations may on its true construction be no more than a gift to particular individuals (ie, the next of kin of the propositus) whereas a gift having perpetual continuance cannot be so confined. If a gift or trust on its true construction does extend to those in need amongst relations in every degree, even though it provides for immediate distribution, then, inasmuch as the class of potential beneficiaries becomes so wide as to be incapable of exhaustive ascertainment, the impersonal quality, if I may so describe it, supplied in continuing gifts by the element of perpetuity, is equally present. To use the words of the passage quoted from Gillam v Taylor (LR 16 Eq 584), although no "perpetual fund or institution" is set up, the fund in such a case is nevertheless one in which

"... no person or persons is ... to have a personal right, but which is to be given only to such as need in the opinion of the trustees ..."

It may further be observed that just as a gift in perpetuity can only be supported if it is charitable, so too a gift to relations in every degree-in the absence, or in default of any exercise of, some power of selection-must fail for uncertainty unless it is charitable, this, indeed, being the reason for the restriction of any implied trust in default of appointment in such cases to statutory next of kin: see Wilson v Duguid.

The exception of gifts or trusts in relief of poverty from the general rule under which an element of public benefit is essential to every other form of legal charity may be anomalous, but that cannot, in my view, justify the restriction of its effect by recourse to yet another anomaly, the result of which would be that gifts or trusts in relief of poverty, which alone among charitable dispositions require no element of public benefit to make them valid, must alone among charitable dispositions-unless, indeed, it so happens that they do possess the element of public benefit-be of perpetual duration in order to be legally charitable. A disposition obviously cannot be held charitable merely because it involves a perpetuity or conversely be held not charitable merely because it is to take immediate effect. In cases of the class here in question the presence of perpetuity may aid the inference of charitable intent, but where a charitable intent is otherwise to be inferred from the terms of the disposition the absence of perpetuity is surely immaterial. Perpetuity in the strict sense would, as it seems to me, be a very capricious test to apply. The learned judge does, however, appear to have taken this as the test, and to have held that no trust for poor relations could qualify as legally charitable unles liable to exceed in duration the limit of a life in being and twenty-one years thereafter allowed by the rule against perpetuities. On this footing a trust to apply the income of a fund in perpetuity in the relief of poverty amongst the poor relations of "X" would be charitable, but a trust precisely similar in every respect save that it was limited in its duration to the period of the life of the last survivor of the issue now in being of His late Majesty King Edward VII and twenty-one years thereafter, a period which might reasonably be estimated at ninety, and might, perhaps, extend to a hundred years or so, would not be charitable. I find myself wholly unable to accept that position. This difficulty was raised in the course of the argument, and I understood counsel for the heir at law to concede that perpetuity in the strict sense was not essential, and that some degree of continuity would suffice. But what degree of continuity? To that he could provide no satisfactory answer, save that the distribution must not be "immediate," but what amounts to "immediacy" in this context? On this basis the test propounded leads to nothing but a morass of uncertainty. One might add that if "immediate distribution" is fatal on account of the personal quality it imports into the disposition, surely the relevant starting point from which to measure "immediacy" (in the case of a testamentary disposition) is the death of the testator, not the date on or from which distribution is to take place. In this case, the date marked out for distribution and ascertainment of potential beneficiaries was that of the death of the survivor of the testatrix' three children, an event which did not in fact take place till some thirty-three years after her death.

For my part, I am content to accept as correctly stating the law on this subject the final paragraph of the passage from Tudor On Charities, 5th ed, p 27, quoted by the learned judge:

"... the sounder view is thought to be that a gift for immediate distribution among poor relations, kindred, and so forth, is charitable except in cases where the intention of the donor, derived from the construction of the documents, is to confine the benefit of the gift to statutory next of kin. Outside this limit no line can be drawn, and the objects ought not to be treated as less extensive where the gift is for immediate distribution than where a perpetual trust is intended."

I should, perhaps, add that I do not think any assistance can be derived from Thomas v Howell. It was not a "poor relations" case, and must, I think, be regarded as of at least doubtful authority. As it happened, it seems from the report that the person named to select the ten poor clergymen in fact survived to perform that function. Had he not done so, it seems that according to the terms of the will the power of selection would have devolved on the testator's executors. If the power of selection had been confined to an individual who died without exercising it I venture to suspect that (questions of mortmain apart) the court would have had no difficulty in making the selection itself on the ground that the gift was clearly charitable. But, the selector having survived, the gift could be carried out literally in accordance with its terms. Effect could be given to it without recourse to the special powers of the court in relation to charities just as if it had been a simple gift of a pecuniary legacy to each of ten named persons. In these circumstances, the court found it possible to hold that the gift was not charitable for the purposes of, and therefore not defeated by, the Charitable Uses Act, 1735. I, therefore, find nothing in that case to displace the conclusion to which I have come; and I would say the same of Liley v Hey having regard to the grounds on which that decision appears to have proceeded.

For the reasons I have endeavoured to state I hold that this appeal should be allowed, and that in lieu of the order made by Roxburgh J there should be a declaration to the effect that the whole of the residuary estate is effectively devoted to charitable purposes with appropriate consequential directions as to the settlement of a scheme. The view I have formed on the primary question makes it unnecessary for me to decide what the destination of the half of the property, to which by the agreement above mentioned the issue was confined, might have been on the basis of the decision of Roxburgh J Accordingly, notwithstanding the interesting arguments addressed to the court on this question, I refrain from expressing any opinion on it.