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[1957] 1 W . L . B .

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.

S o l i c i t o r s : J. M. Isaacs & Co.; Swepstone, Walsh & Son.

K. R. A. H .

[CHANCERY DIVISION.]

* In re SHAW, DECD. 1957


PUBLIC TRUSTEE v. DAY AND OTHERS. Jan. 16, 17,
18, 22, 24;
Feb. 20.
[1955 S. 2090.] Barman J.

Charity—Education—Alpliabet—Trust for inquiries into practicability


and effect of substituting proposed new alphabet for present alpha-
bet of 26 letters — Trust for transliterating literary work into
proposed new alphabet and publishing it page by page with lettering
of present alphabet opposite thereto—Whether charitable.
Trust — Possibility of execution by court — Trust for benefit only of
" objects.
Trust—Uncertainty.

A testator by h i s will directed his trustee to stand possessed of


his residuary t r u s t funds and the a n n u a l income thereof d u r i n g
t h e period of 21 years after his death (1) to i n s t i t u t e and finance
inquiries to ascertain (a) the number of e x t a n t persons speaking
English a n d w r i t i n g i t by the established alphabet of 26 letters
( " D r . J o h n s o n ' s a l p h a b e t " ) ; (b) how much time per i n d i v i d u a l
scribe would be saved by substituting for t h a t alphabet one con-
t a i n i n g a t least 40 letters ( " t h e proposed B r i t i s h a l p h a b e t " ) ,
enabling E n g l i s h to be w r i t t e n w i t h o u t i n d i c a t i n g single sounds
by groups of letters or by diacritical m a r k s instead of by one symbol
for each s o u n d ; (c) how m a n y of those persons were engaged i n
speaking and w r i t i n g English a t any and every moment in t h e
w o r l d ; (d) on those factors to ascertain the time and labour wasted.
by the lack of a t least 14 unequivocal syllables ; (e) to add to t h e
estimates of time lost or saved estimates of loss of income in B r i t i s h
a n d American c u r r e n c y ; (2) t o employ a phonetic expert to trans-
l i t e r a t e t h e testator's p l a y " Androcles and the Lion " into t h e
proposed E n g l i s h alphabet, assuming the pronunciation to resemble
t h a t recorded by H . M . K i n g George V ; (3) to employ an artist-
calligrapher to fair-copy the t r a n s l i t e r a t i o n for r e p r o d u c t i o n ; (4) to
publish t h e t r a n s l i t e r a t i o n with t h e original " D r . J o h n s o n ' s "
lettering opposite thereto and present copies to libraries i n the
B r i t i s h Isles, t h e Commonwealth a n d America : —
Held, t h a t t h e t r u s t s so declared failed; as (1) the objects, if
regarded as tending to t h e increase of knowledge, were not thereby
charitable unless combined with provisions for teaching and educa-
tion, which elements were lacking.
Voi,. 1 51
730 THE WEEKLY LAW BEPOBTS MAY 17, 1957

3957 In re Macduff [1896] 2 Ch. 451; 12 T.L.R. 452 applied.


(2) The objects were not beneficial to the community in a way
SHAW,DBOD., regarded as charitable by law ; as trusts for advertisements, propa-
In re.
ganda and research on a controversial matter could not be so
regarded, but were rather analogous to trusts for political purposes.
Trustees of Sir G. B. Hunter (1922) "0" Trust v. Inland
Bevenue Commissioners (1929) 45 T.L.E. 344; 14 T.C. 427 and
Bowman v. Secular Society [1917] A.C. 406; 33 T.L.R. 376 applied.
(3) The trusts, not being charitable, failed also as they were
for the benefit not of an individual but of an object, and as such
were not open to the control of the court.
In re Biplock [1941] Ch. 253 ; 57 T.L.R. 263 applied.
(4) I t was not open to the court to validate them by treating
them as powers.
Inland Bevenue Commissioners v. Broadway Cottages Trust
[1955] Ch. 20; [1954] 3 W.L.R. 438; [1954] 3 All E.R. 120
applied.

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.

Robert Lazarus for the Public Trustee.


Mark Cockle for Frederick and Margaret Day.
Charles Russell Q.C. and P. W. E. Taylor for the Trustees of
the British Museum and for the Eoyal Academy of Dramatic Art.
Kenneth Elphinstone for the Governors and 'Guardians of the
National Gallery of Ireland.
E. Milner Holland Q.C. and Denys Buckley for the Attorney-
General.

The facts are stated in the headnote and in the written


judgment of H a r m a n J .

Cases cited in argument not referred to in the j u d g m e n t :


Inland Revenue Commissioners v. Baddeley *; In re Hummel-
tenberg.2
Cur. adv. vult.
i [1955] A.C. 572; [1955] 2 2 [1923] 1 Ch. 237; 39 T.L.E.
W.L.E. 552; [1955] 1 All E.E. 525. 203.
[1957] 1 W.L.B. 731

1957. Feb. 20. HAEMAN J. read the following judgment: 3957


All his long life Bernard Shaw was an indefatigable reformer, SHAW.DI
In Te
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 para-
dox 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 language. Many of his projects he lived to see gain
acceptance and carried into effect and become normal. I t was
natural that he should be interested in English orthography and
pronunciation. These are obvious targets for the reformer. I t 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. I t is, indeed, a curious reflection 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 existing 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. I t 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
June 12, 1950, when the testator was already 94 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
clause 2 the plaintiff is appointed sole executor and trustee.
Clause 5 is in these terms: " I bequeath my copyrights perform-
" ing rights filming rights television rights and all cognate rights
THE WEEKLY LAW EEPOETS MAY 17, 1957

" now in existence or hereafter to be created with the manu-


" scripts 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 20 years from the
" day of the death of the last survivor of all the lineal descen-
" dants 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 clause 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 appro-
'' priated shall until the expiration of 21 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 herein-
" after 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 an
" 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 amounts 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 21 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-clause (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
[1957] 1 W.L.K. 733

trust funds.'' The trustee is also given a discretion to increase 1957


annuities in certain events. SHAW,DEOD
Clause 35 and its sequents I must read in full. Clause 35 is In re.
in these terms: " I devise and bequeath all my real and personal Harman j .
" estate not otherwise specifically disposed of by this my will or
" any codicil 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 copy-
" rights which as provided by clause 7 of this my will are not
" t o 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 charge 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 authorized 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: (1) To institute and finance a series of
'' inquiries to ascertain or estimate as far as possible the following
" statistics (a) the number of extant persons who speak the
" English language and write it by the established and official
" alphabet of 26 letters (hereinafter called Dr. Johnson's
" alphabet); (b) how much time could be saved per individual
" scribe by the substitution for the said alphabet of an alphabet
" containing at least 40 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;
" (c) how many of these persons are engaged in writing or
" printing English at any and every moment in the world; (d) on
" these factors to estimate the time and labour wasted by our
" lack of at least 14 unequivocal single symbols; (e) 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
734 THE WEEKLY LAW KEPOBTS MAY 17, 1957

1987 " or rival alphabets, teaohers of the established orthography,


HAW DEOD. " d i s p u t a n t s about pronunciation, or any of the irreconcilables
In re. " whose wranglings have overlooked and confused the single
Harman J. '' issue of labour saving and made change impossible during the
" last hundred years. The inquiry m u s t not imply any approval
'' or disapproval of the Proposed British alphabet by the inquirers
" o r by m y trustee. (2) To employ a phonetic expert to trans-
" literate my play entitled ' Androcles and the Lion ' into the
" Proposed British alphabet assuming the pronunciation to
" resemble t h a t recorded of His Majesty our late King George V.
" and sometimes described as Northern English. (3) To employ
" an artist-calligrapher to fair-copy the transliteration for repro-
'' duction by lithography photography or any other method t h a t
" m a y serve in the absence of printers' types. (4) To advertise
" and publish the transliteration with the original Dr. J o h n s o n ' 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 t h a t order."
Clause 36 i s : " I desire my trustee to bear in mind t h a t the
" Proposed British alphabet does not pretend to be exhaustive as
" it contains only 16 vowels whereas by infinitesimal move-
" m e n t s of the tongue countless different vowels can be produced
" all of t h e m in use among speakers of English who utter the
" same vowel no oftener t h a n they make the same fingerprints.
" Nevertheless they can understand one another's speech and
" writing sufficiently to converse and correspond."
Clause 37 s a y s : " I t is possible t h a t the Ministry of Educa-
" tioh m a y institute the inquiry and adopt the Proposed British
" alphabet to be taught in the schools it controls in which event
" subsection 1 of clause 35 foregoing and its relevant sequels will
" be contra-indicated as superfluous and clause 40 come into
" operation accordingly b u t the adoption m u s t be exact and no
" account taken of the numerous alternative spelling reforms
" now advocated or hereafter proposed."
Clause 38 i s : " I hereby devise and bequeath the balance of
" the income of my residuary trust funds not required during
" the period of 21 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 t r u s t funds m a y
" under the trusts hereinbefore contained be applicable upon
" t r u s t during the special period b u t subject to cesser as herein-
" after provided to apply the same as follows: A. To remunerate
" the services and defray the expenses incidental to these pro-
" ceedings and generally to the launching advertising and
" propaganda of the said British alphabet. B . To acquire by
" employment purchase or otherwise the copyrights and p a t e n t s
" (if any) created by or involved in the designing and manufac-
'' ture of the said alphabet or the publication of the works printed
[1957] 1 W.L.B. 735

' 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

1957 applied " as income of my e s t a t e , " form p a r t of the residuary


HAW DBOD. m c o m e - The trustee is by clause 7 directed to manage and deal
In re. with t h e m as absolute owner for so long as may be necessary
Harman J. during the defined " special period."
The directions in clause 35 connected with what the testator
calls the " Proposed British a l p h a b e t " prescribe no limit of
time, but clause 38 shows t h a t not more t h a n the income of the
first 21 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 clause 38 (which are, in my
view, mere machinery incidental to the purposes stated in
clause 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.
I t appears t h a t the residuary estate is likely to consist of
nothing b u t copyrights and royalties arising out of them. These
are to devolve at the end of the 21-year period on the ultimate
residuary legatees, the British Museum, the Boyal Academy of
Dramatic Art and the Irish National Gallery in equal shares. The
first two of these now claim t h a t what I m a y call the alphabet
trusts are entirely void, and t h a t 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 t w o :
first, t h a t the trusts, being for an object and not for a person, are
void t r u s t s ; secondly, t h a t they are void for uncertainty.
The Attorney-General appears as parens patriae to uphold
t h e trusts as being charitable trusts, and counsel for the Attorney-
General at my request also supported the proposition of the
executor t h a t , even if not charitable, these trusts, not being
tainted with the vice of perpetuity (as it is called), are a valid
exercise by a m a n of his power of disposing of his own money
as he thinks fit. The claimants retort t h a t these trusts are not
charitable trusts, and it seems to m e t h a t I should address
myself first to t h a t question. I t is notorious t h a t the word
" charitable," when used by a lawyer, covers many objects which
a layman would not consider to be included under t h a t word, but
excludes benevolent or philanthropic activities which the layman
would consider charitable. I n construing a will the lawyer's
sense m u s t prevail in the absence of some special context. The
four heads of charity are set out by Lord Macnaghten in Com-
missioners for Special Purposes of the Income Tax v. Pemsel.1
His words, as has often been pointed out, are not original, being
drawn from the argument of Sir Samuel Eomilly in his reply in
Morice v . Bishop of Durham.2 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

i [1891] A.G. 531, 583; 7 T.L.E. 2 (1805) 10 Ves. 522, 531, 532.
657.
[1957] 1 W.L.R.

" t o the community." Sir Samuel Romilly describes the last


head as being " t h e most difficult," and the phrase he uses is
" t h e 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 trans-
literation 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 and Country Planning,3 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 L.J. in
In re Macduff.4, The facts of that case bear no resemblance to
the present, but Rigby L.J. says: " There is one other case to
"which I will refer—Whicker v. Hume5—and in doing so I
" will refer also to the unreported case of President of the United
" States of America v. Drummond,6 which is mentioned in
Whicker v. Hume.7 I say nothing about the wide extent of
" the gift in Whicker v. Hume,s because there is no doubt now
" that the extensive nature of the gift as regards the range of

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

1957 " t h e objects is no objection to i t ; b u t the gift was for advance-


SHAW DEOD. " ment of education and learning, and the objection was taken
In re. " by counsel who were impeaching the validity of t h e gift t h a t
Harman J. '' education is no doubt a charitable purpose within t h e Statute
" of Elizabeth, but learning is n o t — t h a t is to say, t h a t t h e pro-
" motion of abstract learning would not be a charitable purpose.
" That Was dealt with by Lord Chelmsford and Lord Cranworth,
" and both of t h e m point out that, reading t h e word ' learning '
" as you find it in that will in connexion with education, it m u s t
" be taken as equivalent to teaching, and, therefore, as a certain
" branch of education; and I rather gather from their judgments,
'' and from t h e pains which they take to draw out and to elucidate
" t h e meaning of the word ' learning ' in that will, t h a t if they
" could not have put that interpretation upon it they would have
" doubted, at any rate, as to whether the advancement of learning
" a s an abstract matter would be a charity at all. The Lord
" Chancellor, Lord Chelmsford, goes with great pains into t h e
'' matter, and deals with the word ' learning '; and he says t h a t
" t h e word in that will was used in t h e sense of teaching and
" i n s t r u c t i o n , ' a n d , in t h a t sense, it appears to m e , ' he says,
" ' that t h e case which was cited by t h e respondents, and which
" ' is printed in the respondent's case, of t h e President of the
" ' United States of America v . Drummond," m a y be applicable,
" ' where Lord Langdale decided, t h a t a gift to t h e United States
" ' of America, to found, at Washington, under t h e n a m e of the
" ' " Smithsonian Institution, an establishment for t h e increase
" ' " o f knowledge among m e n , " was a valid charity.' The
" Lords evidently doubted whether a gift for t h e increase of
" knowledge would be a good charitable gift, unless it was under-
" stood to m e a n a gift for teaching and education. Yet t h e
" increase of knowledge would unquestionably in these days be
" taken to be a purpose of general utility, and t h e doubt of t h e
" noble Lords appears to m e to be strongly in favour of the view
" taken by Lord Langdale t h a t ' purposes of general utility ' will
'' not make a good charitable gift.''
The research and propaganda enjoined by the testator seem
to m e merely to tend to t h e increase of public knowledge in a
certain respect, namely, t h e 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 t h e trusts tend to more t h a n to persuade t h e public t h a t t h e
adoption of t h e new script would be " a good t h i n g , " and that,
in m y view, is not education. . Therefore I reject this element.
There remains t h e fourth category. As I have already said,
this does not embrace all objects of public utility, as appears
clearly in the case of In re Strakosch 10 and perhaps even better
in Williams' Trustees v. Inland Revenue Commissioners.11 The
8
7 H.L.C. 141, 155. i i [1947] A.C. 447; 63 T.L.B. 352;
io [1949] Ch. 529; 65 T.L.R. 383; [1947] 1 All E.E. 513.
[1949] 2 All E.E. 6.
[1957] 1 W.L.B.

sadnote reads: " E v e r y 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 Elizabeth,
chapter 4. Accordingly, no trust can be charitable unless it is
beneficial to the community in a way in 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
' a n d educational welfare of Welsh people.' Held, that the
trust was not exempt from income tax under section 37, sub-
section (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 2 : " M y
Lords, the claim of the appellants that the property is vested
in them for charitable purposes is based on these contentions,
(a) 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,' (b) 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 (c) ' 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 con-
' nexions 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
upon 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 the statute of Elizabeth (43 Elizabeth, chapter 4), which is

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

1957 " expressly preserved by section 13 (3) of the Mortmain and


SHAW.DEOD., " Charitable Uses Act, 1888. The second is t h a t the classifica-
In re. " tion of charity in its legal sense into four principal divisions by
Harman J. " L o r d Macnaghten in Income Tax Special Purposes Commis-
" sioners v. Pemsel13 m u s t always be read subject to the qualifi-
" cation appearing in the judgment of Lindley L . J . in In re
'' Macduff14 . . . " Lord Simonds then cites from t h a t case as
I have done. Then he goes o n : " B u t 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 t h a t its charitable character is asserted. I t is
'' not alleged t h a t 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 s t a t e m e n t the claim
" i s imperfect and m u s t fail."
I t is hard to ascertain what are the limits of purposes held to
be beneficial to the community " i n a way which the law regards
" as charitable." Lord Simonds, in the case last cited, grapples
with this difficulty, and he admits t h a t it is very difficult to
reconcile all the cases. His Lordship opines t h a t " Each case
" m u s t be judged on its own facts and the dividing line is not
" easily drawn . . . " 1 5 I t seems to me, however, t h a t 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 t h a t the fact t h a t the testator and a number of
other people are of opinion t h a t 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 t h a t to which they are accustomed. I do not see how
mere advertisement and propaganda can be postulated as being
beneficial. Mr. Isaac P i t m a n is the author of a singularly able
piece of pleading on the subject in his affidavit, but, even if I
were persuaded by him of the merits of the scheme, I cannot
think t h a t my opinion on t h a t subject is relevant or can be the
deciding factor.
I feel unable to pronounce t h a t the research to be done is a
task of general utility. I n order to be persuaded of t h a t , I should
have to hold it to be generally accepted t h a t benefit would be
conferred on the public by the end proposed. B u t t h a t 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 t h a t he considers the proposed

" [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 .

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
Eowlatt J. on an income tax point. That is Trustees of the Sir
G. B. Hunter (1922) " C " Trust v. Inland Revenue Commis-
sioners." The headnote reads: " T h e appellants claimed that
" the income of a trust of which they were trustees was exempt
" from income tax under section 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
" b e 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 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 utilized 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 trustees
" contended (1) That the society was established for educational
"purposes only: (2) That alternatively the society was estab-
" lished for purposes beneficial to the community only." The
Crown claimed " (1) That the trust was not established for educa-
" tional purposes only or for purposes beneficial to the com-
" munity but for the advancement of an idea or theory." With
that view the Special Commissioners agreed, and there was an
appeal which came before Eowlatt J. who said 17 : " I think that
" t h e commissioners were clearly right here. I t must be dis-
" tinctly understood that what the court has to decide in cases
" of this kind is not whether it appears that the society is

i« (1929) 14 T.C. 427; 45 T.L.E. 344. " 14 T.C. 427, 432.


742 THE WEEKLY LAW KEPOBTS MAY 17, 1957

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.-

is [1891] A.C. 531. i» [1917] A.C. 406, 442; 33 T.L.E.


376, 378.
[1957] 1 W.L.E. 743

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

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, though there are indications
of the kind of alphabet required. It is to have not less than 40
letters of which at least 14 are to be symbols for vowel sounds.
The evidence before me showed that a great deal 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 calcula-
tions 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. Bums 23
Lord Haldane begins his speech in these terms: " 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, pro-
" vide 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
" recognizes in somewhat different ways in the two countries as
" charitable, the court will disregard a merely- subordinate
" deficiency in particular expression of intention to dispose of
" the entire beneficial interest to a class, and will even them-
" selves, 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 in Bowman v. Secular Society 2i categorically
states " 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 recognize 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
23 [1918] A.C. 337, 342; 24 T.L.B. ™ [1917] A.G. 406, 441; [1917] 33
219. T.L.E. 376, 378.
[1957] 1 W.L.E. 745

trust. The principle has been recently restated by Boxburgh 1957


J. in In re Astor Settlement Trusts25 where the authorities sHAW DE0D
are elaborately reviewed. An object cannot complain to the In re.
court, which therefore cannot control the trust, and, therefore, Harman j .
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 as it has been devoted to the indicated
purposes, and in so far as it is not devoted to those purposes,
the money being spent is the money of the residuary legatees of
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 reason-
ing is not, I think, open to me. See, for instance, the statement
by Lord Greene M.B. in In re Diplock.2* " Those principles,"
he says, 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 to
" charitable purposes, or to 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. Now in the
" case of charitable trusts in which no defined class is specified,
" nevertheless owing to the particular principles which have come
" t o 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 charit-
" able 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 pres. But 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
2
» [1952] Ch. 534; [1952] 1 T.L.E. " [1941] Ch. 253, 259; 57 T.L.B.
1005; [1952] 1A11 E.B. 1067. 263, 264.
VOL. 1 52
THE WEEKLY LAW EEPOETS MAY 24, 1957

is taken in the judgment of Jenkins L.J. in Commissioners of


Inland Revenue v. Broadway Cottages Trust."
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 21 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 and Leach's
work on the Eule against Perpetuities (1956), at p. 308, the
following passage quoted from the American Law Institute's
Eestatement 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
" authorized 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
residuary legatees, 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 L.J. in Sunnyfields
case above 28 : " W e do not think that 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 ed.), 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 begotter 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 legal
problem or to make up his mind what he wanted.

Declarations accordingly.

Solicitors: J. N. Mason & Co.; Russell Jones & Walker; Charles


Russell & Co.; Bentleys, Stokes & Lowless; the Treastiry Solicitor.

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.