Re Shaw (deceased) 1 All ER 745
(Judgment by: J)
v. Day and Others
Judgment date: 20 February 1957
All his life long Bernard Shaw was an indefatigable reformer. He was already well-known when the present century dawned, as novelist, critic, pamphleteer, playwright; and during the ensuing half century he continued to act as a kind of itching powder to the British public, to the English-speaking peoples, and indeed to an even wider audience, castigating their follies, their foibles and their fallacies and bombarding them with a combination of paradox and wit that earned him in the course of years the status of an oracle: the Shavian oracle; and the rare distinction of adding a word to the English language. Many of his projects he lived to see gain acceptance and carried into effect and become normal. It was natural that he should be interested in English orthography and pronunciation. These are obvious targets for the reformer. It is as difficult for the native to defend the one as it is for the foreigner to compass the other. The evidence shows that Shaw had for many years been interested in the subject. Perhaps his best known excursion in this field is "Pygmalion" in which the protagonist is a professor of phonetics: this was produced as a play in 1914 and has held the stage ever since and invaded the world of the film. It is indeed a curious reflexion that this same work, tagged with versicles which I suppose Shaw would have detested, and tricked out with music which he would have eschewed (see the preface to "The Admirable Bashville"), is now charming huge audiences on the other side of the Atlantic and has given birth to the present proceedings. I am told that the receipts from this source have enabled the executor to get on terms with the crushing death duties payable on the estate, thus bringing the interpretation of the will into the realm of practical politics.
The testator, whatever his other qualifications, was the master of a pellucid style, and the reader embarks on his will confident of finding no difficulty in understanding the objects which the testator had in mind. This document, moreover, was evidently originally the work of a skilled equity draftsman. As such, I doubt not, it was easily to be understood, if not of the vulgar, at any rate by the initiate. Unfortunately the will bears ample internal evidence of being in part the testator's own work. The two styles, as ever, make an unfortunate mixture. It is always a marriage of incompatibles: the delicate testamentary machinery devised by the conveyancer can but suffer when subjected to the cacoethes scribendi of the author, even though the latter's language, if it stood alone, might be a literary masterpiece.
This will is a long and complicated document made on 12 June 1950, when the testator was already ninety-four years old, though it is fair to say that it is rather youthful exuberance than the circumspection of old age that mars its symmetry. By cl 2 the plaintiff is appointed sole executor and trustee. Clause 5 is in these terms:
"I bequeath my copyrights performing rights filming rights television rights and all cognate rights now in existence or hereafter to be created with the manuscripts typescripts and other documents in which I have such rights to my trustee upon trust to apply the proceeds resulting from the exploitation of such rights or the sale or other lucrative use of such documents as income of my estate."
Clause 7 begins as follows:
"I declare that my trustee shall manage and deal with my author's rights with all the powers in that behalf of an absolute owner (subject as hereinafter provided) for so long as may prove necessary or expedient during a period ending at the expiration of twenty years from the day of the death of the last survivor of all the lineal descendants of His late Majesty King George the Fifth who shall be living at the time of my death (hereinafter called 'the special period')."
A proviso is added forbidding the trustee to sell or assign the literary rights or to alienate them for more than a limited period. There follow clauses giving specific bequests and various directions, including cl 16 in these words:
"I empower my trustee to procure all necessary assistance and expert advice legal artistic literary or other for the discharge of his relevant functions and to pay its cost out of my estate."
Next come legacies and annuities to servants, relations and others, the trustee being empowered to provide the annuities out of the income of "my residuary trust funds hereinafter defined", and it is declared that
"every annuity unless previously appropriated shall until the expiration of twenty-one years from my death or the previous cesser whether partial or complete of the trust of the balance of the income of my residuary trust funds hereinafter contained be payable only out of the income of my residuary trust funds in each year from my death available for the payment thereof and if the income of my residuary trust funds shall be insufficient to pay the said annuities in full the annuitant shall not be entitled to be paid any capital sum in satisfaction of his or her annuity as a legacy, but the said annuity shall abate pro rata for such period and to such extent as shall be necessary having regard to the insufficiency of such income as aforesaid but if at the end of any year from my death there should be income available (after paying the full amount of the said annuities for the time being payable for that year) to pay the amounts or part of the amounts by which the annuities then still payable had previously abated my trustee shall out of such income pay the said amounts or such parts of the said amounts and rateably in proportion to such last mentioned annuities as such income shall be sufficient to satisfy. Upon the expiration of twenty-one years from my death or the cesser whether partial or complete of the said trust of the balance of the said income the annuities then subsisting if not then provided for under sub-cl. (4) hereof and any amounts by which such annuities had previously abated if not made good shall be a charge on the capital of my residuary trust funds."
The trustee is also given a discretion to increase annuities in certain events.
Clause 35 and its sequents I must read in full.
"35. I devise and bequeath all my real and personal estate not otherwise specifically disposed of by this my will or any codicial hereto and all property over which I have general power of appointment unto my trustee upon trust that my trustee shall (subject to the power of postponing the sale and conversion thereof hereinafter contained) sell my real estate and sell call in or otherwise convert into money as much as may be needed of my personal estate (other than any copyrights which as provided by cl. 7 of this my will are not to be sold) to increase the ready moneys of which I may be possessed at my death to an amount sufficient to pay my funeral and testamentary expenses and debts estate duty legacy duty and all the duties payable on my death in respect of my estate or the bequests hereby made free of duty (other than testamentary expenses) and the legacies bequeathed by this my will or any codicil hereto or to make such other payments or investments or change of investments as in his opinion shall be advisable in the interest of my estate and shall invest the residue of such moneys in manner hereinafter authorised and shall stand possessed of the said residuary trust moneys and the investments for the time being representing the same and all other investments for the time being forming part of my residuary estate (herein called my residuary trust funds) and the annual income thereof upon the trusts hereby declared of and concerning the same.
- To institute and finance a series of inquiries to ascertain or estimate as far as possible the following statistics
- the number of extant persons who speak the English language and write it by the established and official alphabet of twenty-six letters (hereinafter called Dr. Johnson's alphabet);
- how much time could be saved per individual scribe by the substitution for the said alphabet of an alphabet containing at least forty letters (hereinafter called the proposed British alphabet) enabling the said language to be written without indicating single sounds by groups of letters or by diacritical marks, instead of by one symbol for each sound;
- how many of these persons are engaged in writing or printing English at any and every moment in the world;
- on these factors to estimate the time and labour wasted by our lack of at least fourteen unequivocal single symbols;
- to add where possible to the estimates of time lost or saved by the difference between Dr. Johnson's alphabet and the proposed British alphabet estimates of the loss of income in British and American currency. The inquiry must be confined strictly to the statistical and mathematical problems to be solved without regard to the views of professional and amateur phoneticians, etymologists, spelling reformers, patentees of universal languages, inventors of shorthand codes for verbatim reporting or rival alphabets, teachers of the established orthography, disputants about pronunciation, or any of the irreconcilables whose wranglings have overlooked and confused the single issue of labour saving and made change impossible during the last hundred years. The inquiry must not imply any approval of or disapproval of the proposed British alphabet by the inquirers or by my trustee.
- To employ a phonetic expert to transliterate my play entitled "Androcles and the Lion" into the proposed British alphabet assuming the pronunciation to resemble that recorded of His Majesty our late King George V, and sometimes described as Northern English.
- To employ an artist-calligrapher to fair-copy the transliteration for reproduction by lithography photography or any other method that may serve in the absence of printers' types.
- To advertise and publish the transliteration with the original Dr. Johnson's lettering opposite the transliteration page by page and a glossary of the two alphabets at the end and to present copies to public libraries in the British Isles, the British Commonwealth, the American States North and South and to national libraries everywhere in that order."
"I desire my trustee to bear in mind that the proposed British alphabet does not pretend to be exhaustive as it contains only sixteen vowels whereas by infinitesimal movements of the tongue countless different vowels can be produced all of them in use among speakers of English who utter the same vowel no oftener than they make the same finger prints. Nevertheless they can understand one another's speech and writing sufficiently to converse and correspond ... "
"It is possible that the Ministry of Education may institute the inquiry and adopt the proposed British alphabet to be taught in the schools it controls in which event cl. 35(1) foregoing and its relevant sequels will be contra-indicated as superfluous and cl. 40 come into operation accordingly but the adoption must be exact and no account taken of the numerous alternative spelling reforms now advocated or hereafter proposed."
"I hereby devise and bequeath the balance of the income of my residuary trust funds not required during the period of twenty-one years after my death to pay the annuities hereby or by any codicil hereto bequeathed or for any other purpose upon which income of my residuary trust funds may under the trusts hereinbefore contained be applicable upon trust during the special period but subject to cesser as hereinafter provided to apply the same as follows:
- To remunerate the services and defray the expenses incidental to these proceedings and generally to the launching advertising and propaganda of the said British alphabet.
- To acquire by employment purchase or otherwise the copyrights and patents (if any) created by or involved in the designing and manufacture of the said alphabet or the publication of the works printed in it without exploiting the said rights or for commercial profit.
- To wind up the enterprise when the aforesaid steps have been taken or if and when its official adoption or general vogue shall make further recourse to my estate and action on the part of my trustee in respect of this charitable trust superfluous."
"Pending the operation of the foregoing clause I direct that my trustee shall for the said period of twenty-one years from my death accumulate the said balance of the income of my residuary trust funds in the way of compound interest by investing the same and the resulting income thereof from time to time in any investment in which my residuary trust funds are authorised to be invested."
"Subject to the trusts hereinbefore declared of my residuary trust funds and the income thereof or if and so far as such trusts shall fail through judicial decision or any other cause beyond my trustee's control my trustee shall stand possessed of my residuary trust funds and the income thereof but subject to a charge on the capital as well as the income thereof for payment of such of the annuities hereby bequeathed as shall be subsisting upon trust as to one third thereof for the trustees of the British Museum in acknowledgment of the incalculable value to me of my daily resort to the reading room of that institution at the beginning of my career as to one third of the same upon trust for the National Gallery of Ireland and as to the remaining one third of the same upon trust for the Royal Academy of Dramatic Art at 61 Gower Street in the county of London and should any of these three institutions be permanently closed at the date when the trust to accumulate the said balance of income of my residuary trust funds shall cease the others or other shall succeed to its share and if more than one equally."
Finally, cl 47 reads thus:
"Having been born a British subject in Ireland in 1856, subsequently registered as a citizen of Eire, and finally privileged to remain a British subject by the Home Secretary's letter dated June 27, 1949, I declare that my domicil of choice is English and desire that my will be construed and take effect according to English law."
Apart from a minor question about certain annuities which I have already decided, the difficulties begin with cl 35 which is, in form, a normal residuary clause directing conversion of the estate, other than copyrights, and the payment of funeral and testamentary expenses and debts out of the proceeds and the ready money. These resources have proved inadequate and it has been necessary to defray the death duties largely out of royalties accruing since the death, which, it will be remembered, are directed by cl 5 to be treated as income. The definition of "my residuary trust funds" appears at first sight to exclude the copyrights and the proceeds of their exploitation, but no one suggested that the testator died intestate in this respect, and I am content to assume that these, directed as they are to be applied "as income of my estate", form part of the residuary income. The trustee is by cl 7 directed to manage and deal with them as absolute owner for so long as may be necessary during the defined "special period".
The directions in cl 35 connected with what the testator calls "the proposed British alphabet" prescribe no limit of time, but cl 38 shows that not more than the income of the first twenty-one years after the death is to be devoted to these purposes. So much of this income as is not devoted to these purposes or the subsidiary purposes mentioned in cl 38 (which are, in my view, mere machinery incidental to the purposes stated in cl 35) is to be accumulated, and is to continue to be used during the special period unless the trusts "shall fail through judicial decision or any other cause beyond my trustee's control", or unless the enterprise shall have been wound up on its successful achievement.
It appears that the residuary estate is likely to consist of nothing but copyrights and royalties arising out of them. These are to devolve at the end of the twenty-one-year period on the ultimate residuary legatees, the British Museum, the Royal Academy of Dramatic Art, and the Irish National Gallery in equal shares. The first two of these now claim that what I may call the alphabet trusts are entirely void and that the claimants are entitled, therefore, to come into their inheritance at once and to stop the accumulation of income. The grounds of this claim are two: first, that the trusts, being for an object and not for a person, are void trusts; secondly, that they are void for uncertainty.
The Attorney General appears as parens patriae to uphold the trusts as being charitable trusts, and counsel for the Attorney General at my request also supported the proposition of the executor that, even if not charitable, these trusts, not being tainted with the vice of perpetuity (as it is called), are a valid exercise by a man of his power of disposing of his own money as he thinks fit. The claimants retort that these trusts are not charitable trusts, and it seems to me that I should address myself first to that question. It is notorious that the word "charitable", when used by a lawyer, covers many objects which a layman would not consider to be included under that word, but excludes benevolent or philanthropic activities which the layman would consider charitable. In construing a will the lawyer's sense must prevail in the absence of some special context. The four heads of charity are set out by Lord Macnaghten in Income Tax Special Purposes Comrs v Pemsel [(1891] AC 531 at p 583). His words as has often been pointed out, are not original, being drawn from the argument of Sir Samuel Romilly in his reply in Morice v Bishop of Durham ((1805), 10 Ves 522 at p 532). They are almost too familiar to need repetition. Shortly stated the four heads are (i) religion, (ii) poverty, (iii) education, and (iv) "other purposes beneficial to the community". Sir Samuel Romilly describes the last head as being "the most difficult", and the phrase he uses is "the advancement of objects of general public utility". Here, again, it is trite law that not every object coming within one or other of these categories is charitable-a college for pickpockets is no charity-but that every object which is to rank as charitable must either fit into one or more of the first three categories, or, if not, may still be held charitable because of general public utility.
The first object of the alphabet trusts is to find out by inquiry how much time could be saved by persons who speak the English language and write it, by the use of the proposed British alphabet and so to show the extent of the time and labour wasted by the use of our present alphabet, and, if possible, further to state this waste of time in terms of loss of money. The second is to transliterate one of the testator's plays, "Androcles and the Lion", into the proposed British alphabet, assuming a given pronunciation of English, and to advertise and publish the transliteration in a page by page version in the proposed alphabet on one side and the existing alphabet on the other, and, by the dissemination of copies and, in addition, by advertisement and propaganda, to persuade the government or the public or the English speaking world to adopt it. This was described by the Attorney General as a useful piece of research beneficial to the public, because it would facilitate the education of the young and the teaching of the language and show a way to save time and, therefore, money. It was suggested that the objects could thus be brought within the third category and that a parallel could be found in the decision of Danckwerts J in Crystal Palace Trustees v Minister of Town & Country Planning ( 2 All ER 857, n), where trusts "for the promotion of industry, commerce and art" were held charitable. So they were, but only in the context provided by the instrument (an Act of Parliament) in which they appeared. In my opinion, if the object be merely the increase of knowledge, that is not in itself a charitable object unless it be combined with teaching or education (see the speech of Rigby LJ in Re Macduff, Macduff v Macduff,  2 Ch 451 at p 472). The facts of that case bear no resemblance to the present, but the lord justice said:
"There is one other case to which I will refer-Whicker v. Hume ((1858), 7 H.L. Cas. 124)-and in doing so I will refer also to the unreported case of United States President v. Drummond ((1838), cited in 7 H.L. Cas. 155), which is mentioned in Whicker v. Hume. I say nothing about the wide extent of the gift in Whicker v. Hume, because there is no doubt now that the extensive nature of the gift as regards the range of the objects is no objection to it; but the gift was for advancement of education and learning, and the objection was taken by counsel who were impeaching the validity of the gift that education is no doubt a charitable purpose within the Statute of Elizabeth, but learning is not-that is to say, that the promotion of abstract learning would not be a charitable purpose. That was dealt with by LORD CHELMSFOIRD and LORD CRANWORTH, and both of them point out that, reading the word 'learning' as you find it in that will in connection with education, it must be taken as equivalent to teaching, and, therefore, as a certain branch of education; and I rather gather from their judgments, and from the pains which they take to draw out and to elucidate the meaning of the word 'learning' in that will, that if they could not have put that interpretation upon it they would have doubted, at any rate, as to whether the advancement of learning as an abstract matter would be a charity at all. The Lord Chancellor, LORD CHELMSFORD, goes with great pains into the matter, and deals with the word 'learning'; and he says (7 H.L. Cas. at p. 155) that the word in that will was used in the sense of teaching and instruction, 'and, in that sense, it appears to me', he says, 'that the case which was cited by the respondents, and which is printed in the respondent's case of the United States President v. Drummond, may be applicable, where LORD LANGDALE decided, that a gift to the United States of America, to found, at Washington, under the name of the "Smithsonian Institution, an establishment for the increase of knowledge among men", was a valid charity'. The Lords evidently doubted whether a gift for the increase of knowledge would be a good charitable gift, unless it was understood to mean a gift for teaching and education. Yet the increase of knowledge would unquestionably in these days be taken to be a purpose of general utility, and the doubt of the noble Lords appears to me to be strongly in favour of the view taken by LORD LANGDALE that 'purposes of general utility' will not make a good charitable gift."
The research and propaganda enjoined by the testator seem to me merely to tend to the increase of public knowledge in a certain respect, nemely, the saving of time and money by the use of the proposed alphabet. There is no element of teaching or education combined with this, nor does the propaganda element in the trusts tend to more than to persuade the public that the adoption of the new script would be "a good thing", and that, in my view, is not education. Therefore I reject this element.
There remains the fourth category. As I have already said, this does not embrace all objects of public utility, as appears clearly in Re Strakosch Temperly v A-G (7) ( 2 All ER 6), and perhaps even better in Williams' Trustees v Inland Revenue Comrs ( 1 All ER 513). The headnote ( AC 47) reads:
"Every object of public general utility is not necessarily a charity, for in order to be charitable a trust must be within the spirit and intendment of the statute 43 Eliz. c. 4. Accordingly, no trust can be charitable unless it is beneficial to the community in a way which the law regards as charitable. A trust was established with the objects of promoting Welsh interests in London by social intercourse; discussing all questions affecting Welsh interests; fostering the study of the Welsh language by lectures on Welsh history, literature, music and art; maintaining a library of literature in the Welsh language or relating to Wales. The trustees were empowered (inter alia) to maintain an institute and meeting place for the benefit of Welsh people in London with a view to creating a centre to promote 'the moral, social, spiritual and educational welfare of Welsh people'. Held, that the trust was not exempt from income tax under s. 37(1) of the Income Tax Act, 1918, since the ground on which a charitable character was sought to be attributed to it was not that it was beneficial in a way which the law regards as charitable."
In his speech Lord Simonds says ( 1 All ER at p 518):
"My Lords, the claim of the appellants that the property is vested in them for charitable purposes is based on these contentions,
- that the dominant purpose of the trust is the fostering of Welsh culture which is a purpose beneficial to the community composed of the people of the United Kingdom,
- that the purpose aforesaid is beneficial to the community composed of the people of the Principality of Wales and the county of Monmouth which is an integral part of the United Kingdom and in itself constitutes a political body settled in a particular territorial area, and
- because the maintenance of the institute (the expressed method of effectuating the purpose aforesaid) is itself a purpose beneficial to a section of the British community which is determined by reference to impersonal qualifications (namely, persons with Welsh connections who are resident in or near or visiting London) and is not a selection of private individuals chosen on account of personal qualifications.
I have taken this statement of the appellants' contentions from the formal reasons in their written Case, because in them so clearly appears the fallacious argument on which in this and other cases, which it has been my fortune to hear, an attempt has been made to establish the charitable character of a trust. My Lords, there are, I think, two propositions which must ever be borne in mind in any case in which the question is whether a trust is charitable. The first is that it is still the general law that a trust is not charitable and entitled to the privileges which charity confers unless it is within the spirit and intendment of the preamble to 43 Eliz. c. 4, which is expressly preserved by s. 13(2) of the Mortmain and Charitable Uses Act, 1888. The second is that the classification of charity in its legal sense into four principal divisions by LORD MACNAGHTEN in Income Tax Special Purposes Comrs. v. Pemsel must always be read subject to the qualification appearing in the judgment of LINDLEY, L.J., in Re Macduff ... "
Lord Simonds then cites from that case as I have done. Then he goes on ( 1 All ER at p 519):
"But it is just because the purpose of the trust deed in this case is said to be beneficial to the community or a section of the community and for no other reason that its charitable character is asserted. It is not alleged that the trust is (a) for the benefit of the community and (b) beneficial in a way which the law regards as charitable. Therefore, as it seems to me, in its mere statement the claim is imperfect and must fail."
It is hard to ascertain what are the limits of purposes held to be beneficial to the community "in a way which the law regards as charitable". Lord Simonds in the case last cited grapples with this difficulty, and is fair to admit that it is very difficult to reconcile all the cases. His Lordship opines (ibid, at p 520) that "Each case must be judged on its own facts and the dividing line is not easily drawn ... " It seems to me, however, that in the present case I am stopped on the threshold by the word "beneficial". Who is to say whether this project is beneficial? That, on the face of it, is a most controversial question, and I do not think that the fact that the testator and a number of other people are of opinion that the step would be a benefit proves the case, for undoubtedly there are a great many more people, at present at any rate, who think the exact contrary. That is why the testator directs the steps which he recommends to be taken. They are intended to overcome the opposition and sloth of the great majority who prefer to stick to what they know and to use that to which they are accustomed. I do not see how mere advertisement and propaganda can be postulated as being beneficial. Mr Isaac Pitman is the author of a singularly able piece of pleading on the subject in his affidavit, but, even if I were persuaded of the merits of the scheme, I cannot think that my opinion on that subject is relevant or can be the deciding factor.
I feel unable to pronounce that the research to be done is a task of general utility. In order to be persuaded of that, I should have to hold it to be generally accepted that benefit would be conferred on the public by the end proposed. That, however, is the very conviction which the propaganda based on the research is designed to instil. The testator is convinced, and sets out to convince the world, but the fact that he considers the proposed reform to be beneficial does not make it so any more than the fact that he describes the trust as charitable constrains the court to hold that it is.
A case on a parallel subject, spelling reform, came before Rowlatt J on an income tax point. That is Trustees of the Sir G B Hunter (1922) "C" Trust v Inland Revenue Comrs ((1929), 14 Tax Cas 427). The headnote reads:
"The appellants claimed that the income of a trust of which they were trustees was exempt from income tax under s. 37(1)(b), Income Tax Act, 1918, on the ground that the trust was established for charitable purposes only, and that the trust income was applied to such purposes only. The trust deed provided that the net income and, after a period of years, the capital, of the trust should be paid or applied to the benefit of the Simplified Spelling Society or in certain circumstances, as to which the trustees had wide discretionary powers, to the benefit of or to promote the formation of any other society or association having similar objects. The objects of the society were to recommend and to further the general use of simpler spellings of English words than those now in use. It engaged in propaganda to influence public opinion in favour of its objects and to gain for them the approval of education authorities. The appellants claimed that the purposes for which the society was established were charitable either as being educational or as being beneficial to the community. Held, that the trust was not established for charitable purposes."
In the Case Stated (ibid, at p 430) I find that it was contended for the society that its proposal had two practical advantages:
"(i) By the adoption of the system, spelling would be more quickly learned by a child, and the time so saved could be utilised in training the child's mind in other directions. The system would thus benefit education indirectly. (ii) The system was of general advantage, because by making the sound of words correspond with their written representation, it would lead to better speech, and by facilitating the learning of English by non-English speaking people, whether British subjects or foreigners, would help the adoption of English as an instrument of international communication."
The society contended:
"(1) That the society was established for educational purposes only: (2) That alternatively the society was established for purposes beneficial to the community only ... "
That Crown claimed:
"(1) That the trust was not established for educational purposes only or for purposes beneficial to the community but for the advancement of an idea or theory ... "
With that view the Special Commissioners agreed, and there was an appeal which came before Rowlatt J who said (ibid, at p 432):
"I think that the commissioners were clearly right here. It must be distinctly understood that what the court has to decide in cases of this kind is not whether it appears that the society is pursuing a beneficial object or not, in the opinion of the court; I think that the court has nothing to do with that at all. But what the court has to decide is whether the object of the society is one that is charitable within the meaning of the rule governing courts of equity and the Income Tax Acts. The objects of this society or any other society which would benefit under this trust is simply to make spelling more simple. Everyone would agree up to a point that it is probably advantageous. Probably as you go on you will get differences of opinion; but, right or wrong, the question is whether that is a charitable object. You have people trying to promote the simplification of spelling, or the simplification of grammar, or the uniformity of pronouncing, or the simplification of dress, or the simplification or reform of any of the conveniences of life. But in my judgment they are nowhere near either of the express categories mentioned by LORD MACNAGHTEN in the well-known judgment, Income Tax Special Purposes Comrs. v. Pemsel, or within the classes of cases which come within the general classes in the Act. I think that this case is hardly arguable."
Such words of such a judge must have great weight with me.
It seems to me that the objects of the alphabet trusts are analogous to trusts for political purposes, which advocate a change in the law. Such objects have never been considered charitable. In his celebrated speech in Bowman v Secular Society Ltd ( AC 406) Lord Parker of Waddington said (ibid, at p 442):
"Now if your Lordships will refer for a moment to the society's memorandum of association you will find that none of its objects, except, possibly, the first, are charitable. The abolition of religious tests, the disestablishment of the Church, the secularisation of education, the alteration of the law touching religion or marriage, or the observation of the Sabbath, are purely political objects. Equity has always refused to recognise such objects as charitable. It is true that a gift to an association formed for their attainment may, if the association be unincorporated, be upheld as an absolute gift to its members, or, if the association be incorporated, as an absolute gift to the corporate body; but a trust for the attainment of political objects has always been held invalid, not because it is illegal, for every one is at liberty to advocate or promote by any lawful means a change in the law, but because the court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift."
I, therefore, do not reach the further inquiry whether the benefit is one within the spirit or intendment (as it is called) of the Statute of Elizabeth (43 Eliz c 4), but, if I had to decide that point, I should hold that it was not.
It was argued for the ultimate legatees that, apart from any other consideration, the vice of uncertainty is fatal. It has been often said that the vagueness with which a charitable bequest is stated will never be the cause of its failure. A modern instance is Re Gott, Glazebrook v Leeds University ( 1 All ER 293). I read from the headnote ( Ch 193):
"A charitable trust cannot fail for uncertainty whether the charitable intention be general or only specific. There is no practical reason why certainty of the exact ambit of a charitable purpose should be required, as the court can settle a scheme for its administration."
Uthwatt J said ( 1 All ER at p 294):
"The argument is that, where there is shown an intention to devote property to a particular charitable purpose only but it is impossible to ascertain that purpose with certainty, the trust intended is not known and there is, therefore, no trust to be enforced. The well-known statement: 'A charitable trust does not fail for uncertainty', is said to be a slogan which does not apply save where there is an intent in favour of charity generally. No doubt, when a purpose is stated, no charitable trust is created unless the purpose is certainly charitable, but given that certainty, uncertainty as to the particular charitable purpose intended is, in my opinion, immaterial. No authority was cited to me which supports the proposition that certainty in the definition of an intended specific charitable purpose is necessary and the proposition appears to be wrong in principle and never to have been accepted in practice. If a gift to charity generally does not fail for uncertainty-and that is a proposition which is not open to dispute-it appears to me to be a natural consequence, though it may not be a necessary consequence, that a specific charitable purpose may be vaguely set out. There is no practical reason why certainty of the exact ambit of a particular charitable purpose should be required, for the court has as regards all charitable trusts jurisdiction to settle a scheme for their administration-I am not referring to cy-près schemes-and it is settled practice that these schemes may deal not only with methods of administration but also with the substance of the trust and define it. The court, as LORD ELDON pointed out in Morice v. Bishop of Durham, has taken strong liberties upon the subject of charities."
Once decide that the object is charitable and the law will provide the means of carrying it into effect by a scheme, and it seems to me that the fact that the testator has not selected any particular form of alphabet for his experiment would not be fatal if the experiment itself constituted a charitable object.
The question of certainty becomes far more difficult if there be no charitable intent. The objection here is that the Public Trustee would not know how to set about his task because he would not know the corpus on which to direct his appointed statistical and phonetic experts to work. No particular alphabet has been indicated by the testator, although there are indications of the kind of alphabet required. It is to have not less than forty letters of which at least fourteen are to be symbols for vowel sounds. The evidence before me showed that a great deeal of work has been and is being done on these lines, and that among those skilled in the knowledge of phonetics a fit person could be selected who would be competent to advise the Public Trustee either to adopt one of the already existing scripts, or, if necessary, to procure the invention of a new one. I should not have considered the testator's omission or failure to choose an alphabet fatal. Once that is decided, I see no uncertainty. The statistical calculations could on the evidence be done, and the remaining directions are quite categorical.
Can, then this project be upheld apart from charity? I feel bound to say at once that, as the authorities stand, I do not think I am at liberty to hold that it can. In Houston v Burns ( AC 337) Viscount Haldane begins his speech in these terms (ibid, at p 342):
"My Lords, by the law of Scotland, as by that of England, a testator can defeat the claim of those entitled by law in the absence of a valid will to succeed to the beneficial interest in his estate only if he has made a complete disposition of that beneficial interest. He cannot leave it to another person to make such a disposition for him unless he has passed the beneficial interest to that person to dispose of as his own. He may, indeed, provide that a special class of persons, or of institutions invested by law with the capacity of persons to hold property, are to take in such shares as a third person may determine, but that is only because he has disposed of the beneficial interest in favour of that class as his beneficiaries. There is, however, an apparent exception to the principle. The testator may indicate his intention that his estate is to go for charitable purposes. If these purposes are of the kinds which the law recognises in somewhat different ways in the two countries as charitable, the courts will disregard a merely subordinate deficiency in particular expression of intention to dispose of the entire beneficial interest to a class, and will even themselves, by making a scheme of some kind, give effect to the general intention that the estate should be disposed of for charitable purposes."
Lord Parker of Waddington in Bowman v Secular Society Ltd, categorically states ( AC at p 441):
"A trust to be valid must be for the benefit of individuals ... or must be in that class of gifts for the benefit of the public which the courts in this country recognise as charitable ... "
In other words, one cannot have a trust, other than a charitable trust, for the benefit, not of individuals, but of objects. The reason has been often stated, that the court cannot control the trust. The principle has been recently restated by Roxburgh J in Re Astor's Settlement Trusts, Astor v Scholfield ( 1 All ER 1067), where the authorities are copiously reviewed. An object cannot complain to the court, which, therefore, cannot control the trust, and, therefore, will not allow it to continue. I must confess that I feel some reluctance to come to this conclusion. I agree at once that, if the persons to take in remainder are unascertainable, the court is deprived of any means of controlling such a trust, but if, as here, the persons taking the ultimate residue are ascertained, I do not feel the force of this objection. They are entitled to the estate except in so far it has been devoted to the indicated purposes, and in so far it is not devoted to those purposes, the money being spent is the money of the residuary legatees, or the ultimate remaindermen, and they can come to the court and sue the executor for a devastavit, or the trustee for a breach of trust, and thus, though not themselves interested in the purposes, enable the court indirectly to control them. This line of reasoning is not, I think, open to me. See, for instance, the statement by Sir Wilfrid Greene MR in Re Diplock, Wintle v Diplock ( 1 All ER 193 at p 198):
"Those principles [dealing with uncertainty], I apprehend, are really nothing more than the application of a fundamental principle of the law relating to trusts. In order that a trust may be properly constituted, there must be a beneficiary. The beneficiary must be ascertained or must be ascertainable. In the case of what I may call impersonal trusts, such as a gift for charitable purposes or benevolent purposes, there is no class of beneficiary which can be defined in the same sense as a class of beneficiaries such as a class of relatives. In the latter case, although no particular person in the class may be able to say that at any given moment he is entitled to anything out of the trust, the class as a whole can enforce the trust. In the case of charitable trusts in which no defined class is specified, nevertheless, owing to the particular principles which have come to be applied to charitable gifts, the courts have not treated the trust as failing for that reason. There is a very good ground for that-namely, that the Crown, as parens patriae, taking all charities under its protection, is in a position to enforce the trust, and, therefore, although there may be no specified charitable beneficiary who can come to the court and insist on having the trust performed, nevertheless the Attorney-General can appear and is entitled to insist on the trust being carried out, if necessary, by a scheme cy-près. However, that exception to the general rule that there must be beneficiaries ascertained or ascertainable-if I may call it an exception-does not extend beyond what falls within the legal class of charity. It does not extend to other public-spirited purposes."
The same view is taken in the judgment of the Court of Appeal, delivered by Jenkins LJ in Inland Revenue Comrs v Broadway Cottages Trust, Inland Revenue Comrs v Sunnylands Trust ( 3 All ER 120).
I should have wished to regard this bequest as a gift to the ultimate residuary legatees subject to a condition by which they cannot complain of income during the first twenty-one years after the testator's death being devoted to the alphabet project. This apparently might be the way in which the matter would be viewed in the United States, for I find in Morris & Leach on the Rule Against Perpetuities, at p 308, the following passage quoted from the American Law Institute's Restatement of Trusts:
"Where the owner of property transfers it upon an intended trust for a specific non-charitable purpose, and there is no definite or definitely ascertainable beneficiary designated, no trust is created; but the transferee has power to apply the property to the designated purpose, unless he is authorised so to apply the property beyond the period of the rule against perpetuities, or the purpose is capricious."
As the authors point out, this is to treat a trust of this sort as a power, for clearly there is no one who can directly enforce the trust, and if the trustees choose to pay the whole moneys to the remaindermen, no one can complain. All that can be done is to control the trustees indirectly in the exercise of their power. In my judgment, I am not at liberty to validate this trust by treating it as a power. See per Jenkins LJ in Inland Revenue Comrs v Broadway Cottages Trust ( 3 All ER at p 128): "We do not think a valid power is to be spelt out of an invalid trust". This also was the view of the learned author of Gray On Perpetuities (4th Edn), the leading work on the subject (see Appendix H), and I feel bound to accept it.
The result is that the alphabet trusts are, in my judgment, invalid, and must fail. It seems that their begetter suspected as much, hence his jibe about failure by judicial decision. I answer that it is not the fault of the law, but of the testator, who failed almost for the first time in his life to grasp the problem or to make up his mind what he wanted.
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