In Re: Estate of George Percy Smithson, Deceased; In Re: Application for Directions in connection with the Will of the above-named Deceased (Civil Case No. 33 of 1943 O.S.; Probate and Administration Cause No. 2 of 1942 at Nakuru) [1943] EACA 75 (1 January 1943)

## ORIGINAL CIVIL

## BEFORE LUCIE-SMITH. J.

## In the matter of the Estate of GEORGE PERCY SMITHSON, Deceased-Probate and Administration Cause No. 2 of 1942 at Nakuru

and

In the matter of an Application for Directions in connexion with the Will of the above-named Deceased

## Civil Case No. 33 of 1943 O. S.

Will—Interpretation—Charitable bequest—Gift to School for specific object— Educational—Residuary bequest—General intention of charity— $Cy$ près— Intestacy.

Held (4-9-43).—That a bequest to the Governors of Sedbergh School, interest of which to be paid "towards a holiday trip for a few Sedbergh School selected boys to go to the Con-<br>tinent of Europe yearly", was a good charitable gift.

Held further that the gift of "the residue of my estate I leave to African Leper Missionaries and leper hospitals at present and to be established in Africa only" is a good charitable bequest but void for uncertainty and impossibility of performance.

Held further that the doctrine of cy près could not be applied to the latter bequest, there being no general charitable intention beyond the particular purpose specified.

Figgis, K. C., for executor.

Spurling on behalf of charities which may be concerned.

Mathews for all' the next-of-kin.

JUDGMENT.—By his will dated 8th May, 1938, the testator George Percy Smithson made amongst others the followings bequests: -

1. "Three thousand pounds to the Governors of Sedbergh School Yorkshire the interest on which is to be paid towards a holiday trip for a few Sed-<br>bergh School selected boys to go to the Continent of Europe yearly."

2. "Sixty shillings to each squatter family or regular worker on my farm at Elburgon at my death."

3. "The residue of my estate I leave to African Leper Missionaries and leper hospitals at present and to be established in $Africa$ only."

By Originating Summons dated 18th March, 1943, one of the executors of the estate asks the Court to decide:-

- A. Whether the legacy of £3,000 (1 above) constitutes $a$ charitable trust and as such should be given effect to notwithstanding the rule against perpetuities. - B. What is the true construction of the bequest provided for in the will under 2 above in view of the fact that the farm at Elburgon referred to in the will had passed out of the possession of the Testator before his death. - C. Whether the gift of the residue for the purposes set obit in 3 above constitutes a valid charitable bequest. Dealing with the first question:

A. In Commissioners of Income Tax v. Pemsel (1891) A. C. p. 531<br>Lord Macnagten at p. 583 said: "'Charity' in its legal sense comprises four

principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads". It is of interest to note that earlier in his judgment, in commenting on the paraphrase of the Master of the Rolls, His Lordship says: "If I may say so without offence, under conceivable circumstances, it (the paraphrase) might cover a trip to the Continent or a box at the opera".

In re Drummond, Ashworth v. Drummond (1914) 2 Ch. 90 the validity of a residuary gift in favour of the Old Bradfordians Club was in question and Eve, J., at p. 98 held that there was a valid gift to the club for such purposes as the Committee should determine for the benefit of the old boys or members of the Club.

In re Mellody, Brandwood v. Haden (1918) 1 Ch. 228 it was held that the bequest was a good charitable gift on two grounds, first as tending to the advancement of education by giving the children an opportunity of observing objects of the countryside and also by affording an incentive to regular attendance and industry in order to be selected as participants. The Judgment of Eve, J., at p. 230 is short and interesting, more especially where he points out that "It is no doubt true that a school treat may not always be used only for educational purposes, but it does not necessarily follow that it partakes of the orgies of a juvenile beanfeast".

In re Mariette: Mariette v. Governing Body of Aldenham School (1915) 2 Ch. 284 it was held that a legacy of $\pounds1,000$ for the purposes of building Eton fives courts or squash racquet courts or for some similar purpose was a valid charitable request, it being essential in a school of learning such as the one concerned that there should be organized games as part of the daily routine.

Eve, J., in his judgment at p. 288 says: "The object of this charity is the education, in the widest sense, of boys and young men between the ages of ten and ninetgen". Cf. Shillington v. Portadown U. D. C. (1911) 1 Ir. R. 247. In re Ward's Estate: Ward v. Ward (1937) 81 Sol. Jo. 397 a bequest "to the British" Legion Eastleigh Club of £100 on trust interest to be used for the children's outing" was held to be a good charitable bequest. Simmonds, J., in his judgment said: "The gift could only be supported as one for educational purposes. The nearest case to this was In re Mellody. There was no reason to believe that the outing would be used only for the purposes of a 'juvenile beanfeast' or to doubt that it would be used for the purpose of instructing the children. It could well be regarded as serving a definite educational purpose. It was a good charitable gift".

Reference may also be made to Re Corbyn: Midland Bank, etc. v. Attorney General & Johnson (1941) 2 A. E. R. 160, in which the question of "trusts for the advancement of education" laid down by Lord Macnagten (supra) was considered.

In view of the cases referred to above and the fact that for many years "the grand tour" was considered to be the coping stone of a first class education, I have no doubt that the bequest of £3,000 to the Governors of Sedbergh School with the direction that the interest on that sum is to be paid towards a holiday trip for a few Sedbergh School selected boys to go to the Continent of Europe yearly is a good charitable bequest as being a trust for the advancement of education.

B. As regards the bequest of "Sixty shillings to each squatter family or regular worker on my farm at Elburgon at the time of my death" it is admitted that the farm referred to had passed out of the possession of the Testator before

his death and the bequest must therefore fail on the ground of impossibility of performance and failure of object. Cf. Tharp Longrigg v. People's Dispensary $(1942)$ 2 A. E. R. 358.

C. Finally the Court is called on to consider the gift of the residue of the estate to "African Leper Missionaries and Leper Hospitals at present and to be established in Africa only".

It has been suggested by Dr. Mathews, to whom the Court is indebted for his very full analysis of the law, that the "and" may be disjunctive, thereby creating two trusts, one to "African Leper Missionaries", the other to "Leper Hospitals at present and to be established in Africa only". If this be so one would also have to consider whether the testator did not intend to benefit those Leper Missionaries who were Africans. There is also the possibility, if not probability, that the testator in using the words "in Africa only" meant that part of Africa in which he lived and was interested, to wit, Kenya-in the words of Lord Davey in *Hunter v. Attorney General* (1899) A. C. at p. 321, "voluit sed non dixit".

It appears to me that the intention expressed by the testator was to benefit the lepers of Africa through the medium of Missionaries in Africa and Leper Hospitals in Africa. In other words it is a charitable trust under the first and fourth divisions laid down by Lord Macnagten in the Pemsel case (supra), viz.: (i) trusts for the relief of poverty and (ii) trusts for other purposes beneficial to the community, not falling under any of the preceding heads. It is one trust for the benefit of lepers in Africa.

For obvious reasons the trust cannot be carried out to the extent and in the manner desired by the testator and it now falls to be decided whether the doctrine of cy près can be called in aid.

The principle of cy près is referred to by Lord Eldon in Attorney General v. Whitely (1905) 11 Vesey 241 at 251 as follows: "A case may arise in which the will cannot be obeyed; but then the fund will not go to the heir, upon the principle that an application is to be made as near as may be, growing out of another principle that you are to apply it to the objects intended if you can".

I would also refer to the words of the Master of the Rolls in Attorney General v. Boultbee (1794) 2 Ves. 380: "As to the doctrine of cy près as applied to charities, this sensible distinction has prevailed: the Court will not decree execution of a trust of a charity in a manner different from that intended, except in so far as they see that the intention cannot be executed literally: but another mode may be adopted consistent with his general intention so as to execute it though not in mode in substance".

I have already said that in my opinion the gift with which we are at present dealing is a charitable gift, but it must be remembered that for the application of the cy près principle charitable gifts are divided into two classes: those which are prompted by a general intention of charity, and those which are not.

In Clark v. Taylor (1853) 1 Drew 642, Kindersley, V. C., is reported as follows: "Now there is a distinction well settled by the authorities. There is one class of cases, in which there is a gift to charity generally, indicative of a general charitable purpose, and pointing out the mode of carrying it into effect; if that mode fails the Court says the general purpose of charity shall be carried out. There is another class in which the testator shows an intention, not of general charity, but to give to some particular institution; and then if it fails, because there is no such institution (or I suggest for any other reason such as uncertainty or impossibility of performance) the gift does not go to charity generally; that distinction is clearly recognized; and it cannot be said that whenever a gift to any charitable purpose fails, it is nevertheless to go to charity".

In re Wilson (1913) 1 Ch. 314 at p. 320, Parker, J., says: "For the purposes of this case, I think the authorities must be divided into two classes. First of all we have a class of cases where, in form, the gift is given to a particular charitable purpose, but it is possible, taking the will as a whole, to say that, notwithstanding the form of the gift, the paramount intention of the will is to give the property in the first instance for a general charitable purpose rather than a particular charitable purpose, and to graft on to the general gift a direction as to the desires or intentions of the donor as to the manner in which the general gift is to be carried into effect..... Then there is the second class of cases. where, on the true construction of the will, no such paramount intention can be inferred, and where the gift is held to fail".

The comment of the learned editors of Tudor on Charities (5th Edition) on the result of the above two cases is to be found at p. 141 and reads as follows: "The importance of the distinction lies in the fact that the cy près principle is confined to property given with a general intention of charity".

In re University of London Medical Sciences Institute Fund (1909) 2 Ch. 1 on the question of whether the legacy had been definitely devoted to a charitable purpose and ought to be administered cy près it was held that the legacy was a gift to take effect upon the happening of a condition which had failed: that there was no general charitable intention to be gathered from the will; and that the legacy must be repaid to the executors.

The learned trial Judge, Joyce, J., at p. 4 states: "In other words, the scheme was found to be impracticable and abandoned. . . . But with reference to the legacy given by Mr. Beit's (the testator's) will it has been suggested on behalf of the Attorney General that the money had been definitely devoted to a charitable purpose, and ought, therefore, to be applied cy près, the object to which it was originally devoted having failed. I cannot accede to that suggestion. There is not one word in the will on which to found the theory of the testator having a general charitable intent, or any intention to contribute to any general or other purpose of charity save only the particular scheme of the projected institute. The case went to the Court of Appeal, where the judgment of Joyce, J., was affirmed, Kennedy, L. J., remarking at p. 9: "Here there is no doubt that the gift was for a charitable purpose; and it seems equally clear—and but for the argument addressed to us I should have thought it impossible to argue otherwise—that the testator's intention in making this gift, as well as the intention of every subscriber to the fund, was for the specific and well-defined purpose of the Institute of Medical Sciences being founded, and for no general or other purpose whatever".

In re Stanford: University of Cambridge v. Attorney General (1924) 1 Ch. 73 it was held inter alia that in the absence of any general charitable intention. to be gathered from the terms of the bequest there was no room for the application of the doctrine of $cy$ près.

In the course of the argument Eve, J., interpolated at p. 75: "What evidence is there of any general charitable intention here beyond the particular purpose specified? Unless such an intention is to be found the doctrine of cy près cannot be applied".

To sum up I find that the legacy of the residue to the lepers of Africa is a good charitable bequest but void for uncertainty and impossibility of performance.

I further find that from the will there is no general charitable intention beyond the particular purpose specified and therefore that the doctrine of cy près cannot be applied. This being so, the residue of the estate falls to be administered. as an intestacy.

The costs of all parties to this application will be paid out of the estate.