Académique Documents
Professionnel Documents
Culture Documents
729
u n d e r l i n g t o o k a d v i c e , h e w a s v e r y ill a d v i s e d , a n d I c a n n o t 1957
o v e r l o o k t h e r e s u l t . I r e g a r d it a s i m p o r t a n t t h a t t h i s k i n d of ALLIANCE
i n t r u s i o n o n m a t t e r s p e n d i n g in c h a m b e r s s h o u l d b e s t r o n g l y PERPETUAL
BUILDING
d i s c o u r a g e d a n d I feel b o u n d t o m a r k t h e c o u r t ' s d i s p l e a s u r e b y SOCIETY
fining t h e r e s p o n d e n t £100. v.
BELKUM
Order accordingly. INVESTMENTS
LTD.
K. R. A. H .
[CHANCERY DIVISION.]
ADJOURNED SUMMONS.
B y his will dated J u n e 12, 1950, George Bernard Shaw,
(hereinafter called ' ' the testator,'') directed his trustee to hold
his residuary trust funds and the income thereof on trusts for
purposes connected with the alteration of the alphabet. On
November 2, 1950, the testator died: and by this summons,
dated May 17, 1955, the Public Trustee, ag executor and trustee
of the will,- asked, inter alia, whether the alphabet trusts were
valid and effectual or were invalid and failed on the ground of
uncertainty, perpetuity, impracticability, public policy or any
other ground, and whether he ought to take any steps towards
carrying out the trusts or ascertaining whether they were im-
practicable.
The defendants to the summons were Frederick William Day
and his wife, Margaret D a y ; the trustees of the British M u s e u m ;
the Governors and Guardians of the National Gallery of Ireland;
the Eoyal Academy of Dramatic A r t ; and the Attorney-General.
' in it without exploiting the said rights or for commercial profit. 1957
' C. To wind up the enterprise when the aforesaid steps have gfiAW j , E 0 D
' been taken or if and when its official adoption or general vogue In re.
' shall make further recourse to my estate and action on the part Harman j ;
' of my trustee in respect of this charitable trust superfluous."
Clause 39 says: '' Pending the operation of the foregoing
' clause I direct that my trustee shall for the said period of 21
' 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."
Clause 40 is: " 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 Eoyal 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, clause 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 domicile 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 clause 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 clause 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
736 THE WEEKLY LAW EEPOETS MAY 17, 1957
i [1891] A.G. 531, 583; 7 T.L.E. 2 (1805) 10 Ves. 522, 531, 532.
657.
[1957] 1 W.L.R.
3
[1951] Ch. 132; 66 T.L.R. « (1858) 7 H.L.C. 124.
(Pt. 2) 753; [1950] 2 All E.E. 857n. « 7 H.L.C. 141, 155.
* [1896] 2 Ch. 451, 472; 12 T.L.R. 'Ibid. - .'
452. s ihid.
738 THE WEEKLY LAW EEPOETS MAY 17, 1957
12 [1947] A.C. 447, 454; 63 T.L.B. 352, 354; [1947] 1 All E . E . 513.
740 T H E W E E K L Y LAW E E P O E T S MAY 17, 1957
" [1891] A.C. 531, 583; 7 T.L.E. " [1947] A.C. 447, 458; 63 T.L.E.
657. 352, 355; [1947] 1 All E . E . 513, 520.
i* [1896] 2 Ch. 451, 472; 12 T.L.E.
452.
[1957] 1 W . L . E .
1957 " pursuing a beneficial object or not, in. the opinion of t h e court;
SHAW.DBOD., " I think t h a t the court has nothing to do with t h a t at all. B u t
In re. " w h a t the court has to decide is whether the object of the
Harman J. '' society is one t h a t 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 m a k e spelling more simple.
" Everyone would agree up to a point t h a t it is probably advan-
t a g e o u s . Probably as you go o n ' y o u will get differences of
" opinion; but, right or wrong, the question is whether t h a t is a
" c h a r i t a b l e 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. B u t 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 Commis-
" sioners v. Perasel 1 8 or within the classes of cases which come
" within the general classes in the Act. I think t h a t this case
" is hardly a r g u a b l e . " Such words of such a judge m u s t have
great weight with m e .
I t seems to me t h a t 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. I n his celebrated speech in Bowman v . Secular
Society 19 Lord Parker has this passage: " Now if your Lordships
" w i l l refer for a m o m e n t to the society's m e m o r a n d u m of
" association you will find t h a t none of its objects, except,
" possibly, the first, are charitable. The abolition of religious
" tests, the disestablishment of the Church, the secularization of
" education, the alteration of the law touching religion or
" m a r r i a g e , or the observation of the Sabbath, are purely
" political objects. Equity has always refused to recognize such
" objects as charitable. I t is true t h a t a gift to an association
" formed for their attainment may, if the association be unincor-
" porated, 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 a t liberty t o advocate or promote by any lawful
" m e a n s 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
" t h a t 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 S t a t u t e of Elizabeth, but, if I had to decide t h a t point, I
should hold t h a t it was not.-
It was argued for the ultimate legatees that, apart from any 1957
other consideration, the vice of uncertainty is fatal. Now, it has g a ^ DECD
been often said that the vagueness with which a charitable In re.
bequest is stated will never be the cause of its failure. A modern Harmon j .
instance is In re Gott.20 I will read from the headnote: " A —
" charitable trust cannot fail for uncertainty whether the charit-
'' able 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 2 1 : " 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 that ' 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
" b e 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 pres schemes—and it is settled practice
" that these schemes may deal, not only with methods of ad-
" ministration, but also with, and define, the substance of the
" trust. The court, as Lord Eldon pointed out, in Morice v.
" Bishop of Durham,22 has taken strong liberties on 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
2° [1944] Ch. 193; 60 T.L.E. 214; 21 [1944] Ch. 193, 196; 60 T.L.E.
[1944] 1 All E . E . 293. 214, 215; [1944] 1 All B.E. 293, 294.
22 10 Ves. 522, 538.
T H E W E E K L Y LAW KEPORTS MAY 17, 1957
Declarations accordingly.
K. B. A. H.
" [1955] Ch. 20; [1954] 3 W.L.H, 2» [1955] Ch. 20, 36; [1954] 3 All
438; [1954] 3 All E.E. 120. E.B. 120.