In Re Delaney; Conoley v Quick

[1902] 2 Ch. 642
[1902 D. 12.]

(Judgment by: Farwell J)

In Re Delaney
Between: Conoley
And: Quick

Court:
Chancery Division

Judge:
Farwell J

Subject References:
WILL
Impure Personalty
Gift to named Persons 'or their Successors'
Officers of Voluntary Associations
Charitable Uses

Legislative References:
Charitable Uses Act, 1735 (9 Geo. 2, c. 36) - s. 3

Case References:
Cocks v. Manners, followed - (1871) L. R. 12 Eq. 574

Hearing date: 2-3 July 1902
Judgment date: 12 July 1902

Judgment by:
Farwell J

A testator, who died in 1886, gave the rents of his freehold and leasehold estates to his wife for life, and after her death he directed his trustees to sell the property and to divide the proceeds in (amongst others) the following legacies:


"To M. O., H. M., A. C., Nazareth House, Hammersmith, or their successors, 400l. To E. M. and M. L., of the Convent of the Assumption, Bromley-by-Bow, or their successors, 300l."

At the date of the will and of the death of the testator M. O., H. M., and A. C. were members and officials of a religious community known as the Poor Sisters of Nazareth; and E. M. and M. L. were members and officials of a religious community known as the Little Sisters of the Assumption. Both of these communities were societies of Roman Catholic ladies living together in a state of celibacy for the purpose of sanctifying their souls by prayer and pious contemplation: and also as to the Poor Sisters of Nazareth, with the object of affording permanent homes for aged and infirm persons of both sexes; and as to the Little Sisters of the Assumption, with the object of gratuitously nursing the sick of the poorest classes in their own homes:-

Held, that the bequests were not gifts to the named individuals for their own personal benefit, but to them as holders of offices and for the benefit of the associations in which they respectively held office; and that, as the objects of the associations were charitable, the gifts were void under the Mortmain Act, 1736.

Cocks v. Manners, (1871) L. R. 12 Eq. 574, followed.

This was an originating summons to determine the validity of certain pecuniary bequests.

J. Delany made his will dated January 1, 1884, and thereby, after certain legacies to his wife, gave the rents of his freehold and leasehold estates to her during her life, and after her death he directed his trustees to sell the property,


"and the proceeds to be divided in legacies as follows:

To Mary Owen, Honora McAuliffe, Annie Clarke, Nazareth House, Hammersmith, or their successors, the sum of 400l.

To Eliza McHenry, Margaret Libaud, of the Convent of the Assumption, Wellington Load, Bromley-by-Bow, or their successors, the sum of 300l.

To the Rev. Frederick Bampfield, superior of the Institute for Boys and Girls, Barnet, Herts, or his successor, the sum of 100l.

To the Rev. Lord Archibald Douglas, superior of the St. Vincent's Home for Boys, Harrow Road, London, W., or his successor, the sum of 100l.

To the Rev. Francis Verhagen, of the Franciscan Friary, Stratford, Essex, or his successor, the sum of 300l.

To Lizzie Mulhearn, Burleigh Road, Upton, in her own right, the said sum of 100l.

To Kate Dore, of 2, Bexley Villas, Carnarvon Road, Stratford, Essex, in her own right, 100l.

To Robert Dore, 2, Bexley Villas, Carnarvon Road, Stratford, Essex, the sum of 100l.

To the Rev. Cornelius Keens, Corpus Christi Church, Midon Lane, or his successor, the sum of 19l. 19s.";

and the testator directed that if any of the aforesaid legatees should die before coming into their said legacy, the same should be divided between the surviving legatees; and the testator gave all the residue of his estate to the said respective legatees in proportion to the amount of their respective legacies. The testator made a codicil, dated September 7, 1885, to his will, and thereby gave the plaintiff a pecuniary legacy. He died on July 6, 1886, without issue, leaving his wife surviving him. She died in January, 1901, and the defendant Ada Boffee was her legal personal representative.

The testator's property consisted of six leaseholds and one freehold. If, therefore, the objects of any of the gifts in his will were charitable, such gifts were void under the Mortmain Act, 1736. Under these circumstances the summons was taken out.

The next of kin and heir-at-law of the testator were not known, but the Court held that the defendant Ada Boffee, whose interests were the same as theirs, sufficiently represented their interests for the purposes of the arguments.

The Rev. F. Bampfield died in 1900, and the defendant Father Spink was the present superior of the Institute.

The other material facts sufficiently appear in the judgment.

P. B. Abraham, for the plaintiff.

C. E. Shebbeare, for the Poor Sisters of Nazareth and the Little Sisters of the Assumption. These are gifts to the persons named for their own benefit. No office is mentioned; and the words "or their successors" are inserted, not to indicate the persons who may hold office at the time the gift takes effect, but to prevent lapse: Wingfield v. Wingfield;[F1] Gittings v. M'Dermott.[F2] Except for the word "successors," even if any office were named, the gift would be beneficial: Doe v. Aldridge.[F3] But the words are really not material for the present purpose, because all these named persons survived the tenant for life and are still living. Therefore they take beneficially: In re Delany's Estate.[F4] Next, this is not a gift "to or in trust for any charitable use" within the meaning of the Charitable Uses Act, 1735, s. 3, and 43 Eliz. c. 4. No trust at all is specified, and none will be presumed: Cook v. Fountain;[F5] Faversham Corporation v. Ryder.[F6] The question here is, not as to how these legatees hold their property, but as to how the testator has specified they shall hold this property. The gift is as unfettered by any trust as the gift in In re Harbison;[F7] Wallgrave v. Tebbs.[F8] But if there is any trust, it is not confined to charitable uses: Doe v. Copestake;[F9] Stewart v. Green;[F10] Morrow v. M'Conville.[F11] The case of Cocks v. Manners[F12] will be cited against us; but there there was a direct gift to religious institutions. Lastly, this gift is unaffected by the Roman Catholic Relief Act, 1829 (10 Geo. 4, c. 7), because by s. 37 of that Act women's societies are exempted.

D. L. Koe, for the defendant Verhagen, argued to the same effect.

A. H. Withers, for the defendant Spink. This is a good gift to the person who is the superior of the Institute at the death of the tenant for life: Robb v. Dorrian.[F13]

A. L. Ingpen, for Ada Boffee. There is an intestacy. The gifts are to named persons in respect of the offices they hold. The word "successors" must refer to office, and, if the office held is charitable, the gift is void: Thornber v. Wilson;[F14] Robb v. Dorrian;[F15] Cocks v. Manners.[F16]

H. C. Bischoff, for another defendant in the same interest.

Cur. adv. vult.

July 12. Farwell J., after stating the facts, continued:-

The questions to be decided are -

(1.)
Are the gifts to the several individuals named, "or their successors," or "his successor," legacies given to the individuals for their own benefit, or are they given to the holders of offices for the benefit of the associations in which they hold office?
And, if the latter,
(2.)
Are the objects of such associations charitable?

It is necessary to consider each gift separately. The first is "to Mary Owen, Honora McAuliffe, Annie Clarke, Nazareth House, Hammersmith, or their successors." Mary Owen, Honora McAuliffe, and Annie Clarke were at the date of the will and of the death of the testator members and holders of official positions in a religious community known as the "Poor Sisters of Nazareth," but since 1891 Miss McAuliffe has held no office.

This community is a society of Roman Catholic ladies voluntarily living together in a state of celibacy for the purpose of sanctifying their own souls by prayer and pious contemplation, and also with the object of affording permanent homes for aged and infirm poor persons of both sexes without distinction of creed or nationality, and homes for incurable and orphan children. The community own several houses which are vested in trustees, but the three ladies named do not by themselves hold any of such houses as such trustees, but only in conjunction with others. Members of the community are bound in conscience to hand over any money coming to them for the use and benefit of the community. Money given to the community generally is applied partly in keeping up the houses of the community and partly for their charitable purposes. The testator was acquainted with Mary Owen and Honora McAuliffe, but not with Annie Clarke. Her name was supplied to him by some member of the community when he expressed a desire to benefit the community and asked in what names the legacy should be given.

In my opinion, the legacy is given to the three ladies as holders of offices and for the benefit of the association in which they held office. The primary meaning of the word "successors" is persons in succession. The persons named were known to the testator to be holders of offices in the association, and the only succession to which he can refer is the succession to those offices. The persons named are not intended to take any personal benefit, but are designated only as the then holders of office, and the gift to them depended on their continuance in such office. The decision of Kindersley V.-C. in Thornber v. Wilson[F17] is an authority in favour of this view, and his subsequent decision on another gift in the same will[F18] is even stronger. In the latter case there was a devise (subject to a term of seven years) of real estate on trust to sell and pay the net residue of the proceeds of sale "to the minister of the Roman Catholic chapel at Kendal." The Vice-Chancellor, in giving judgment, says:[F19]


"I cannot entertain any doubt that the intention was to benefit the minister as such, that is, the chapel. The question whether there is a charitable gift does not depend on the fact that there is a gift to an individual describing him as minister; but on this, whether the testator designates the individual as such, or as being the person who happens to fill the office.

A gift to a minister as such, is a charitable bequest. I think here the intention was clearly to benefit the minister and chapel, it was not a personal bequest, with a description of the person to be benefited. A gift to the person now minister would have been different; the testator might be unacquainted with his name, and so only be capable of describing him by his office. And here the surplus is only to be realized at the end of seven years after the testator's death, which makes it stronger to shew that the testator meant to benefit the chapel, not the particular person."

In the case before me the widow has a preceding life interest, and the Vice-Chancellor's concluding observations therefore apply to this case also. So, too, in Smart v. Prujean,[F20] Lord Eldon expressed his opinion that a legacy of 100l. for such purposes as the superior of the convent or her successor should judge most expedient, being given in that character, was sufficient to shew it was for a superstitious use.

The mere description of the legatee as the holder of an office is not, of course, sufficient to raise any such inference. Thus, in Doe v. Aldridge,[F21] a devise to the Rev. A. A., "late of Amesbury, but now preacher at the meeting-house in Lyndhurst," for life was held a gift to him for his own benefit; and in Donnellan v. O'Neill,[F22] where the devise was to Cardinal Cullen, and in case of his death to the Roman Catholic Archbishop for the time being of Dublin, and to his heirs, &c., "absolutely for his and their own use and benefit," the Vice-Chancellor treated the devise as a clear gift for the personal benefit of the devisees.

I am further of opinion that the objects of the association are charitable, and that the gifts, therefore, fail. The case is indistinguishable from that of the Sisters of the Charity of St. Paul at Selley Oak in Cocks v. Manners.[F23] The care of the aged and infirm poor and of incurable and orphan children is the outward and visible object of the association of the Poor Sisters of Nazareth, and this admirable object is not rendered less charitable within the meaning of the Act of Elizabeth because the sisters also desire to sanctify their own souls by prayer and contemplation, whether such sanctification is regarded as concurrent with or assisted by their charitable work. The Court can only look to the actual purpose aimed at by the association, and cannot inquire into the motives of the members of the association. The care of the aged poor and the like is a charity within the Act whether the persons who devote their lives to it are actuated by the love of God, a desire for their own salvation, or mere pique, or disgust with the world. The legacy and share of residue, therefore, given for the Poor Sisters of Nazareth fail.

The next gift is to Eliza McHenry and Margaret Libaud, of the Convent of the Assumption, or their successors. These two ladies both held office in the community of the Little Sisters of the Assumption at the date of the will and of the death, but have held no office therein since 1891. This community is a society of Roman Catholic ladies voluntarily living together in a state of celibacy for the purpose of sanctifying their own souls by prayer and contemplation, and for the purpose of gratuitously nursing the sick of the poorest classes in their own homes. It is supported by voluntary contributions, which are expended in lodging, boarding, and maintaining the members thereof. I am unable to distinguish this gift also from that to the Sisters of St. Paul at Selley Oak in Cocks v. Manners.[F24] Indeed, I may read Wickens V.-C.'s judgment with some immaterial omissions as applicable to the present case:[F25]


"The community is, in point of law, a voluntary association for the purpose of nursing the sick; and I cannot distinguish it in this respect from any of the numerous voluntary associations established in London, such as the Scripture Readers, Home Missionaries, or Anglican Sisters of Mercy, in which zealous persons unite for the purpose of performing charitable functions, taking out of the funds of the association so much as is necessary for their own wants, and extending their operations as their means permit."

And he distinguishes the gift in that case to the Selley Oak community from another gift in the same will to a Dominican convent, on the ground that the sole purpose of the latter was to sanctify their own souls by prayer and contemplation without engaging in any corporal works of mercy. The Vice-Chancellor pointed out that religious services can only be charitable so far as they tend towards the edification or instruction of the public, and he held that the gift referred to above a was not charitable. There is, in truth, no "charity" in attempting to improve one's own mind or save one's own soul. Charity is necessarily altruistic and involves the idea of aid or benefit to others; but, given the latter, the motive impelling it is immaterial.

The next gift is to the Rev. Frederick Bampfield, superior of the Institute for Boys and Girls, Barnet, or his successor. He was such superior at the date of the will and of the death of the testator, but died in January, 1900. The defendant Francis Spink is the present superior. This gift also is, in my opinion, to the holder of the office, not to the individual. The Institute is a congregation of Roman Catholic secular priests, students, and lay brothers living together under rule for their own spiritual benefit, and for carrying on various works for the benefit of their neighbours, one of which, and that obviously referred to by the testator, is an educational charity for poor boys and girls. This legacy, therefore, fails. The next legatee, the Rev. Lord Archibald Douglas, is not a party, and the next is the Rev. Francis Verhagen, who was at the date of the will superior of the Franciscan Friary at Stratford, but ceased to be so in the testator's lifetime. He can, in my opinion, take nothing beneficially, and I have not the present superior before the Court. There must be the usual inquiry for the heir-at-law and next of kin of the testator, and the costs of all parties down to to-day will come out of the estate.

[F1]

(1878) 9 Ch. D. 658.

[F2]

(1834) 2 My. & K. 69; 39 R. R. 139.

[F3]

(1791) 4 T. R. 264; 2 R. R. 379.

[F4]

(1882) 9 L. R. Ir. 226.

[F5]

(1736) 3 Swans. 585.

[F6]

(1854) 5 D. M. & G. 350.

[F7]

[1902] 1 I. R. 103.

[F8]

(1855) 2 K. & J. 313.

[F9]

(1805) 6 East, 328.

[F10]

(1871) I. R. 5 Eq. 470.

[F11]

(1883) 11 L. R. Ir. 236.

[F12]

L. R. 12 Eq. 574.

[F13]

[1877] I. R. 11 C. L. 292.

[F14]

(1855) 3 Drew. 245; (1858) 4 Drew. 350.

[F15]

I. R. 11 C. L. 292.

[F16]

L. R. 12 Eq. 574.

[F17]

3 Drew. 245.

[F18]

4 Drew. 350.

[F19]

4 Drew. 351.

[F20]

(1801) 6 Ves. 560, 567; 5 R. R. 395.

[F21]

4 T. R. 264; 2 R. R. 379.

[F22]

(1870) I. R. 5 Eq. 523.

[F23]

L. R. 12 Eq. 574.

[F24]

L. R. 12 Eq. 574.

[F25]

L. R. 12 Eq. 584.


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