COMMISSIONERS OF INLAND REVENUE
v.
baddeley and others (trustees of the newtown trust)
(second appeal)
17th February, 1955
Viscount Simonds
MY LORDS,
These consolidated appeals raise once more a question, which has so
often caused doubt and difficulty in the courts of this country, whether
certain trusts are charitable in the sense which the law accords to that
word. It need cause no surprise, though it may cause regret, that this
should be so. For while no comprehensive definition of legal charity
has been given either by the Legislature or in judicial utterance, there is
no limit to the number and diversity of the ways in which man will seek
to benefit his fellow-men. To determine whether the privileges, now con-
siderable, which are accorded to charity in its legal sense, are to be granted
or refused in a particular case, is often a matter of great nicety and I think
that this House can perform no more useful function in this branch of the
law than to discourage a further excess of refinement where already so many
line distinctions have been made.
In the present appeals the controversy is about the amount of stamp
duty payable in respect of two deeds of conveyance, by which trusts were
declared of certain property thereby respectively conveyed. If the trusts
so declared were charitable the duty is smaller than if they were not
charitable. The sums actually at stake are trifling, but the issue is an
important one. It was decided in favour of the Appellants, the Com-
missioners of Inland Revenue, by Mr. Justice Harman but against them
by the Court of Appeal. Hence the present appeal.
I find it convenient, my Lords, to examine the two deeds separately and
take first a deed of conveyance to the Respondents as trustees of certain
land at Stratford in the county of Essex of an area of about 680 square
yards with a Mission Church, lecture room and store erected on some part
thereof. So far as relevant (omitting certain words which admittedly were
inserted in error) the trusts of this property were as follows:
” The Trustees shall permit the said property to be appropriated
” and used by the Leaders for the time being of the Stratford Newtown
” Methodist Mission under the name of ‘ the Newtown Trust’ (herein-
” after called ‘ the Foundation ‘) for the promotion of the religious
” social and physical well being of persons resident in the County
” Boroughs of West Ham and Leyton in the County of Essex by the
” provision of facilities for religious services and instruction and for
” the social and physical training and recreation of such aforementioned
” persons who for the time being are in the opinion of such Leaders
” members or likely to become members of the Methodist Church and
” of insufficient means otherwise to enjoy the advantages provided by
” these presents . . . and by promoting and encouraging all forms of such
” activities as are calculated to contribute to the health and well-being
” of such persons Provided always that the Trustees shall not at any|
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” time hereafter and so long as the trusts hereby declared shall not
” have totally failed use or permit the said properly to be used either
” for physical training or physical recreation or any kind of game on
” Sundays Christmas Days or Good Fridays or for the sale or consump-
” tion of intoxicating drink.”
This main trust is followed by certain ancillary provisions which cannot,
I think, affect the question whether it is a charitable trust. It is at once
apparent that the document is not skilfully drawn. It is presumably all
the persons resident in the specified boroughs whose religious, social and
physical well-being is to be promoted, but this is to be achieved by providing
certain facilities for religious services and instruction and for the social
and physical training and recreation of ” such aforementioned persons”,
i.e., such residents, as are for the time being ” in the opinion of such Leaders
” members or likely to become members of the Methodist Church and of
” insufficient means otherwise to enjoy the advantages provided by these
” presents”. This awkward phraseology leaves me in doubt whether the
beneficiaries under this trust are to be all the residents in a certain area or
only such of the residents as satisfy two conditions, first that they are
Methodists or in the opinion of the Leaders potential Methodists, and
secondly that they are of limited means. It might even he that upon a true
interpretation of the deed some benefits are open to all the residents, others
to a more limited class. Fortunately I do not find it necessary to determine
this question, for I think that, whatever view may he taken of it this case is
governed by the recent decision of this House in Williams’ Trustees v. C.I.R.
([1947] AC 447).
Before, however, I examine that case and certain other cases which must.
I think, guide your Lordships’ decision. I must first dispose of two conten-
tions which were urged, the one by the Respondents and the other by the
Attorney General, against the appeals.
By the Respondents it was contended that the trusts of the deed could
be supported as valid charitable trusts on the ground that they came within
the first head of Lord Macnaghten’s classification in Inland Revenue Com-
missioners v. Pemsel [1891] AC 531. viz., that they were for the relief of
poverty. This contention was, in my opinion, rightly rejected both by Mr.
Justice Harman and the Court of Appeal. I do not question that there may
be a good charity for the relief of persons who are not in grinding need or
utter destitution: see In re de Carteret [1933] Ch. 103. But I agree with
Mr. Justice Harman, and am content to adopt his words, that relief connotes
need of some sort, either need for a home or for the means to provide for
some necessity or quasi-necessity, and not merely an amusement however
healthy.
The Attorney-General, appearing as amicus curiae, urged that the validity
of the trust could be sustained on the ground that, regarded as a whole, it
was an educational charity. This contention had not previously been put
forward and your Lordships have not the advantage of knowing the views
upon it of the learned Judge and the Court of Appeal. The short answer
appears to me to be that, regarded as a whole, the sum of the activities
permissible under the deed can only be regarded as educational in the sort
of loose sense in which all experience may be said to be educative, and that, if
such activities are examined one by one, it would be impossible to regard
many of them as in even the loosest sense educational.
If then this trust is charitable, it can only be because it falls within the
fourth class in Lord Macnaghten’s classification ; that is, it must be a trust
of general public utility and must be within the spirit and intendment of
the preamble to the Statute 43 Elizabeth cap. 4. And this is what the
Court of Appeal has held it to be.
My Lords, with great respect to the singularly acute and refined argument
of Lord Justice Jenkins, who delivered the leading judgment in the Court
of Appeal. I must doubt whether anything is gained by discussing whether
the trust should be regarded as prescribing three separate and distinct objects,
namely (a) the promotion of religious well-being, (b) the promotion of social
well-being, and (c) the promotion of physical well-being or as having as its
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goal a state of complete well-being with three several aspects, religious,
social and physical. Let it be assumed that, in the words of the learned
Lord Justice, the object of the trust is the religious, social and physical
improvement of the persons resident in the two boroughs: and let it be
further assumed that this is the end desired for each of such persons, making
such reservation as may be necessary for the fact that facilities for social
and physical training are to be reserved for a limited class of those persons.
Yet in the end the question is for what purposes may the trust property be
used without trespassing beyond the language of the deed? I find that it
may be used for promoting and encouraging all forms of such activities,
i.e. the provision of facilities for (inter alia) social and physical training and
recreation, ” as are calculated to contribute to the health and well-being
” of such persons “. My Lords, I do not think it would be possible to use
language more comprehensive and more vague. I must dissent from the
suggestion that a narrow meaning must be ascribed to the word ” social “:
on the contrary, I find in its use confirmation of the impression that the
whole provision makes upon me. that its purpose is to establish what is
well enough called a community centre in which social intercourse and
discreet festivity may go hand in hand with religious observance and instruc-
tion. No one will gainsay that this is a worthy object of benevolence, but
it is another question whether it is a legal charity, and it appears to me
that authority which is binding on your Lordships puts it beyond doubt that
it is not. Here we are not concerned to consider whether a particular use
to which the trust property may be put is a charitable use: that is a question
upon which different minds might well come to different conclusions. On
the contrary, we must ask whether the whole range of prescribed facilities
or activities (call them what you will) is such as to permit uses which are not
charitable : if it is, it is not such a trust as the Court can execute, and it
must fail.
My Lords, I repeat that in this admittedly difficult branch of the law
nothing is to be gained by adding refinement to refinement, and I am satisfied
that in the light of several decisions of this House, in which comparable
general words have been held not to create a valid charitable trust, your
Lordships would not be justified in taking a different view in the present
case. From many cases I will take a few, selecting only those
in which the generality of the words has been held to exclude
an exclusively charitable connotation. In Farley v. Westminster
Bank Ltd. [1939] AC 430, the gift was to the respective vicars
and churchwardens of two named churches ” for parish work “. Vague
words indeed, but, if I had to write them out somewhat less vaguely, I could
not easily find more appropriate words than those with which the trust of
this deed begins and ends, adding perhaps something about the relief of
the poor which at any rate would not detract from their charitable content.
Yet this trust failed, because work (or activity) which conduces to the
welfare of the parishioners (or which promotes their religious, social and
physical well-being) is not confined to purposes legally charitable. So in
an earlier case, Dunne v. Byrne [1912] AC 407, a gift to the Roman Catholic
Archbishop of Brisbane to be used in the manner ” most conducive to the
” good of religion in this diocese ” as he might decide, was held to be
invalid, because, though it had a prima facie religious content, yet the
generality of the language admitted an application which the law would
not consider charitable. The words of Lord Macnaghten in delivering the
judgment of the Board may be recalled : ” The language of the bequest (to
” use Lord Langdale’s words) would be ‘ open to such latitude of construction
” as to raise no trust which a Court of Equity could carry into execution ‘”.
These words are directly applicable to the present case. and. being applied,
are fatal to the contention of the Respondents. I do not refer to Houston
v. Burns [1918] A.C. 337 or other cases in which the same principle has been
applied, and come to the recent case of Williams’ Trustees. which I have
already mentioned. There the House had to consider a deed by which a trust
was established for the benefit of Welsh people in London. Its object
was declared to be to establish and maintain an institute and meeting place
in London for the benefit of Welsh people resident in or near or visiting
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London with a view to creating a centre in London for promoting the moral,
social, spiritual and educational welfare of Welsh people, and of fostering
the study of the Welsh language, and so on. The means by which this was
to be achieved were, without prejudice to the generality of the object, set
out with some particularity. The noble and learned Lords who heard the
case (including my noble and learned friend, Lord Porter) were unanimous
in thinking that this was not a valid charitable trust. It is true that in the
present case religious instruction is, but in Williams’ Trustees was not, pre-
scribed, but this distinction is irrelevant as it is conceded that the trust is not
exclusively for religious purposes. But apart from this distinction, what
valid ground is there for distinguishing the two cases? I ignore at this stage
any difference in the class of beneficiaries: that raises another and more
difficult question. I look only at the nature of the benefits which are within
the scope of the two trusts, having regard in each case to the language of
the exordium, and in this aspect I am unable to find any material distinction.
I hope that I do no injustice to the judgments of the Court of Appeal in the
present case if I say that they appear to give a special meaning to the word
” social ” where it occurs in the present deed and, having done so, to give
too much significance to that meaning. It is to be observed that ” social ”
is a word that occurs in the Williams’ Trustees deed also, It is probably true
that, as Lord Justice Jenkins says, much turns on the construction of the
several deeds and it is perhaps because I have taken a different view of the
meaning of a particular word that I have come to a different conclusion
on the whole case. I am glad to think that in doing so I find myself in
complete agreement with the Court of Appeal of Northern Ireland who in
Londonderry Presbyterian Church House v. Commissioners of Inland
Revenue 27 Tax Cases 431 had to construe a deed which is essentially
comparable with that which your Lordships are considering and held that
the trust thereby established was not a valid charitable trust.
Other aspects of the trust established by the first deed were discussed and
it is right that I should make some observations upon them, but before
doing so I will turn to the second deed, by which an area of land at Ilford
in the county of Essex laid out as a playing field, upon parts of which
a pavilion and groundsman’s bungalow had been erected, was conveyed to
trustees upon trusts which were substantially the same as those of the first
deed except that (a) ” moral ” was substituted for ” religious ” in the opening
words of the trust. (b) no reference was made to the provision of facilities
for religious services and instruction, and (c) the benefits were unambiguously
conferred exclusively upon residents who satisfied the conditions of member-
ship or potential membership of the Methodist Church and insufficiency of
means to which I have already referred. The second deed also contained
certain ancillary provisions to which I need not refer and further, a declara-
tion of trust of the sum of £10,000 which had been paid to them and of any
other money or property which might be paid or transferred to them which
the trustees were directed to use or apply in such manner (I quote) “as the
” Trustees shall think most beneficial for promoting the objects of the charity
” hereby constituted “.
Once more I submit to your Lordships that this trust must fail by reason
of its vagueness and generality. The moral social and physical well-being
of the community or any part of it is a laudable object of benevolence and
philanthropy, but its ambit is far too wide to include only purposes which
the law regards as charitable. I need not repeat what I have said in regard
to the promotion of religious, social and physical well-being, except to
emphasise that to hold the one a valid and the other an invalid trust would
be to introduce the sort of refinement which I deplore.
In regard to this second trust I will only add that it does not follow that,
because a trust in the vague and general terms of the second deed cannot
be supported, therefore a gift by devise or conveyance of land for a recreation
ground must also fail. This was the particular concern of the learned
Attorney-General, and I think it right to say that, in my opinion, a gift of
land for use as a recreation ground by the community at large or by the
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inhabitants of a particular geographical area may well be supported as
a valid charity. But I would reserve my opinion in a case in which the
beneficiaries are a class determined, for instance, by adherence to a particular
religion or by employment in a particular industry or by particular employers.
This brings me to another aspect of the case, which was argued at great
length and to me at least presents the most difficult of the many difficult
problems in this branch of the law. Suppose that, contrary to the view that
I have expressed, the trust would be a valid charitable trust, if the
beneficiaries were the community at large or a section of the community
defined by some geographical limits, is it the less a valid trust if it is confined
to members or potential members of a particular Church within a limited
geographical area?
The starting point of the argument must be, that this charity (if it be a
charity) falls within the fourth class in Lord Macnaghten’s classification. It
must therefore be a trust which is, to use the words of Sir Samuel Romilly
in Morice v. Bishop of Durham, of ” general public utility “, and the question
is what these words mean. It is, indeed, an essential feature of all ” charity ”
in the legal sense that there must be in it some element of public benefit,
whether the purpose is educational, religious or eleemosynary: see the recent
case of Oppenheim v. Tobacco Securities Trust Co. Ltd. [1951] AC 297;
and, as I have said elsewhere, it is possible, particularly in view of the
so-called ” poor relations cases “, the scope of which may one day have
to be considered, that a different degree of public benefit is requisite
according to the class in which the charity is said to fall. But it is said
that, if a charity falls within the fourth class, it must be for the benefit
of the whole community or at least of all the inhabitants of a sufficient
area. And it has been urged with much force that, if, as Lord Greene
said in In re Strakosch [1949) Ch. 529), this fourth class is represented in the
preamble to the Statute of Elizabeth by the repair of bridges, etc., and
possibly by the maintenance of Houses of Correction, the class of
beneficiaries or potential beneficiaries cannot be further narrowed down.
Some confusion has arisen from the fact that a trust of general public
utility, however general and however public, cannot be of equal utility to
all and may be of immediate utility to few. A sea-wall, the prototype of
this class in the preamble, is of remote, if any, utility to those who live
in the heart of the Midlands. But there is no doubt that a trust for the
maintenance of sea-walls generally or along a particular stretch of coast
is a good charitable trust. Nor, as it appears to me, is the validity of a
trust affected by the fact that by its very nature only a limited number of
people are likely to avail themselves, or are perhaps even capable of availing
themselves, of its benefits. It is easy, for instance, to imagine a charity
which has for its object some form of child welfare, of which the immediate
beneficiaries could only be persons of tender age. Yet this would satisfy
any test of general public utility. It may be said that it would satisfy the
test because the indirect benefit of such a charity would extend far beyond
its direct beneficiaries, and that aspect of the matter has probably not been
out of sight. Indirect benefit is certainly an aspect which must have
influenced the decision of the ” cruelty to animal ” cases. But I doubt
whether this sort of rationalisation helps to explain a branch of the law
which has developed empirically and by analogy upon analogy.
It is, however, in my opinion, particularly important in cases falling within
the fourth category to keep firmly in mind the necessity of the element of
general public utility, and I would not relax this rule. For here is a slippery
slope. In the case under appeal the intended beneficiaries are a class within
a class ; they are those of the inhabitants of a particular area who are
members of a particular Church: the area is comparatively large and
populous and the members may be numerous. But. if this trust is charitable
for them, does it cease to be charitable as the area narrows down and the
numbers diminish? Suppose the area is confined to a single street and the
beneficiaries to those whose creed commands few adherents: or suppose
the class is one that is determined not by religious belief but by membership
30802 A3
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of a particular profession or by pursuit of a particular trade. These were
considerations which influenced the House in the recent case of Oppenheim.
That was a case of an educational trust, but I think that they have even
greater weight in the case of trusts which by their nominal classification
depend for their validity upon general public utility.
It is pertinent, then, to ask how far your Lordships might regard yourselves
bound by authority to hold the trusts now under review valid charitable
trusts, if the only question in issue was the sufficiency of the public element.
I do not repeat what I said in the case of Williams’ Trustees about Goodman
v. Saltash 7 A.C. 633 and the cases that closely followed it. Further considera-
tion of them does not change the view that I then expressed, which in effect
endorsed the opinion of the learned editor of the last edition of Tudor on
Charities. More relevant is the case of Verge v. Somerville [1924] AC 496.
In that case, in which the issue was as to the validity of a gift ” to the trustees
” … of the Repatriation Fund or other similar fund for the benefit of New
” South Wales returned soldiers”. Lord Wrenbury delivering the judgment
of the Judicial Committee said that, to be a charity, a trust must be ” for the
” benefit of the community or of an appreciably important class of the
” community “. ” The inhabitants ” he said, ” of a parish or town, or any
” particular class of such inhabitants, may … be the objects of such a gift, but
” private individuals, or a fluctuating body of private individuals, cannot “.
Here, my Lords, are two expressions ” an appreciably important class of
” the community ” and ” any particular class of such inhabitants “, to which
in any case it is not easy to give a precise quantitative or qualitative meaning.
But I think that in the consideration of them the difficulty has sometimes been
increased by failing to observe the distinction, at which I hinted earlier in
this Opinion, between a form of relief extended to the whole community
yet by its very nature advantageous only to the few and a form of relief
accorded to a selected few out of a larger number equally willing and able to
take advantage of it. Of the former type repatriated New South Wales soldiers
would serve as a clear example. To me it would not seem arguable that
they did not form an adequate class of the community for the purpose of
the particular charity that was being established. It was with this type of
case that Lord Wrenbury was dealing, and his words are apt to deal with
it. Somewhat, different considerations arise if the form, which the purporting
charity takes, is something of general utility which is nevertheless made
available not to the whole public but only to a selected body of the public-
an important class of the public it may be. For example, a bridge which
is available for all the public may undoubtedly be a charity and it is indifferent
how many people use it. But confine its use to a selected number of persons
however numerous and important: it is then clearly not a charity. It is
not of general public utility: for it does not serve the public purpose which
its nature qualifies it to serve.
Bearing this distinction in mind, though I am well aware that in its applica-
tion it may often be very difficult to draw the line between public and private
purposes, I should in the present case conclude that a trust cannot qualify
as a charity within the fourth class in Pemsel’s case if the beneficiaries
are a class of persons not only confined to a particular area but selected
from within it by reference to a particular creed. The learned Master of the
Rolls in his judgment cites a rhetorical question asked by Mr. Stamp in
argument. ” Who has ever heard of a bridge to be crossed only by impecu-
” nious Methodists? ” The reductio ad absurdum is sometimes a cogent form
of argument, and this illustration serves to show the danger of conceding the
quality of charity to a purpose which is not a public purpose. What is true
of a bridge for Methodists is equally true of any other public purpose falling
within the fourth class and of the adherents of any other creed.
The passage that I have cited from Verge v. Somerville refers also (not,
I think, for the first time) to ” private individuals ” or a ” fluctuating body
” of private individuals ” in contradistinction to a class of the community
or of the inhabitants of a locality. This is a difficult conception to grasp:
the distinction between a class of the community and the private individuals
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from time to time composing it is elusive. But, if it has any bearing on the
present case. I would suppose that the beneficiaries, a body of persons
arbitrarily chosen and impermanent, fall more easily into the latter than
the former category.
I conclude that on this ground also I should decide this case against the
Respondents even if I were otherwise in their favour, and will only add that
in coming to this conclusion I find myself in agreement with Lord Justice
Babington in the Londonderry case to which I have already referred.
I move that the appeals be allowed accordingly. The costs of all parties
will be paid by the Appellants in accordance with the undertaking previously
given.
Lord Porter
I concur with the Opinion of the noble Lord on the Woolsack in holding
that the trusts declared in the two matters now under appeal are not
charitable.
Like Lord Tucker, however, I desire to express no opinion as to whether
the beneficiaries constitute a sufficient class for the purposes of Class 4 of
Pemsel’s case.
Lord Reid
The first question to be determined is the proper interpretation of the
trust purposes set out in the conveyances of the mission hall and lecture
room and of the playing field. I shall take first the conveyance of the
playing field. The phraseology is in this deed more concise and somewhat
easier to follow. The essential part of it for the present purpose is as
follows: ” The Trustees shall permit the said property to be appropriated
” and used by the Leaders for the time being of the Stratford Newtown
” Methodist Mission under the name of ‘ The Newtown Trust”… for
” the promotion of the moral social and physical well-being of persons
” resident in the County Boroughs of West Ham and Leyton in the County
” of Essex who for the time being are in the opinion of such Leaders
” members or likely to become members of the Methodist Church and of
” insufficient means otherwise to enjoy the advantages provided by these
” presents by the provision of facilities for moral social and physical training
” and recreation and by promoting and encouraging all forms of such
” activities as are calculated to contribute to the health and well-being of
” such persons.”
This begins by setting out the object to be attained. ” the moral social
” and physical well-being of persons resident in the County Boroughs of
” West Ham and Leyton “. There follows a limitation to a section of those
persons. I must return to this, but as this limitation throws no light on
the nature of the trust purposes I need not deal with it now. Then there
follows the method, and the only permissible method, by which the object
is to be attained: first ” by the provision of facilities for moral social
” and physical training and recreation” and then ” by promoting and
” encouraging all forms of such activities ” (which must mean the activities
of moral, social and physical training and recreation) ” as are calculated to
” contribute to the health and well-being ” of the beneficiaries. I think
that ” facilities ” here means equipment and instruction or supervision suit-
able for the activities mentioned and it is, I think, plain that the playing
field can only be used for activities which are promoted or encouraged
8
by the Leaders. The real question is, what are the nature and scope of
the activities which the Leaders are required or permitted to promote or
encourage, and whether the conduct of any of those activities would go
beyond what can properly be regarded as the fulfilment of a charitable
purpose? The proviso, which I have not quoted, throws little independent
light on this question, and it must, in my opinion, be determined by
construing the words which I have quoted in light of the whole circumstances
disclosed in the deed.
The Leaders are, in my view, required to bear in mind that the donor’s
objective is threefold—to promote the moral and social and physical well-
being of the beneficiaries: they must not pursue one of these purposes
in isolation. Of course, some activities will contribute more to one and
some more to another of these purposes, but they must not promote or
encourage any activity which may be detrimental to any of these three
purposes—indeed, they must prevent any such activity. They are expressly
required only to promote or encourage activities which are calculated to
contribute to health and well-being: it is not enough that a particular
activity should not be harmful to health or well-being; it must only be
promoted or encouraged if it is such as to contribute to health and well-
being, and of course it would only be possible to conduct activities of a
kind which the nature of the premises—a playing field—permits.
My Lords, it is said that the words which I have quoted afford so
vague a description of the permitted activities that a court could not
determine what is authorised and what is not, or alternatively that these
words are so wide as to authorise activities which could not come within
anything that the law regards as charitable, so I must now consider what
the law does regard as charitable. We were referred by the Attorney-
General to a number of Acts of Parliament extending over nearly a century
in which Parliament has regarded the provision of facilities for recreation
for adults as a charitable purpose. The first was the Recreation Grounds
Act, 1859, under which land conveyed for the “regulated recreation” of
adults or for playgrounds for children was, I think, clearly regarded as land
conveyed for a charitable purpose. It would appear that Parliament assumed
that this was the law, but if Parliament was wrong in so assuming then
it would be necessary, in order to give effect to the Act, that there should
be implied an enactment that land conveyed in terms of the Act should he
treated as land held for charitable purposes.
The most important Act is the Mortmain and Charitable Uses Act, 1888.
This Act. in my judgment, enacts that the dedication of any park, garden
or other land to ” the recreation of the public ” is a charitable purpose and
is within the meaning, purview and interpretation of the preamble to the
Act 43 Eliz. c. 4. The drafting of the Act of 1888 is somewhat unusual,
and it requires careful examination. Section 13 repeals the whole of the
Act of Elizabeth, including the preamble, and then enacts : ” (2) Whereas by
” the preamble to the Act of the forty third year of Elizabeth, chapter four
” (being one of the enactments hereby repealed), it is recited as follows”:
[then the preamble is set out in full]: ” and whereas in divers enactments
” and documents reference is made to charities within the meaning, purview,
” and interpretation of the said Act: Be it therefore enacted that references
” to such charities shall be construed as references to charities within the
” meaning, purview, and interpretation of the said preamble “. Part II of
the Act is headed ” Charitable Uses” and begins by enacting in section 4
that, subject to the savings and exceptions contained in the Act, every
assurance of land to or for the benefit of any charitable uses shall be
made in accordance with the requirements of the Act and unless so made
shall be void. Then in Part III, headed ” Exemptions “, section 6 enacts
that Parts I and II of the Act shall not apply (subject to a limitation which
is not material) to an assurance of land for the purposes only of (inter alia)
a public park, and by the definition in section 6 (4) “‘ public park ‘ includes
” any park, garden, or other land dedicated or to be dedicated to the recrea-
” tion of the public.” It is possible that before 1888 a conveyance of a park
to trustees for the express purpose that it should be held and maintained In
perpetuity for the recreation of the public might not have been held to be
9
a conveyance for a charitable purpose: the gift would benefit rich and
poor alike, and that whether or not they are subject to any disability, and
recreation must here include the use of the land by members of the public
for mere relaxation and pleasure. But the whole of the provisions of the
Act must be read together and, unless the ordinary principles of statutory
construction are to be disregarded, the words taken from the preamble of
the statute of Elizabeth and enacted in section 13 as the measure of charitable
purpose must be construed in light of the earlier provisions of the Act
which make the express purpose of holding ” any park, garden, or other
” land ” for the recreation of the public a charitable purpose. I would
agree that any ” other land” must be ejusdem generis with parks and
gardens. ” Recreation ” is a very wide term, but only certain types of recrea-
tion can be pursued or enjoyed in a park or garden. It may be that as
regards other types of land or buildings, where a greater variety of types
of recreation could be pursued merely requiring that they should be held
for the recreation of the public would not be a charitable purpose. But,
in my judgment, the Act of 1888 clearly establishes that a gift for the
purpose of public recreation of subjects on which the only possible types
of recreation are those which could be enjoyed in the open air in a park
or garden is a gift for a charitable purpose. And if that be so I cannot
see how it could be denied that a gift of money to be used to promote
or facilitate the enjoyment of public recreation on such land is also a
gift for a charitable purpose. I therefore agree with the decision in In re
Hadden [1932] 1 Ch. 133. It was followed in two unreported cases to
which we were referred: in In re Foakes in 1933 Luxmoore J. held that a
bequest of certain fields and a barn (together with a sum for their upkeep)
for use as a recreation ground was a valid charitable gift, and in In re
Chesters in 1934 Bennett J. held that a bequest of money to provide public
recreation or playgrounds for the children was a valid charitable gift.
In re Nottage [1895] 2 Ch. 649 is clearly distinguishable: money was
bequeathed to provide annually a cup for yacht racing, so the only possible
beneficiaries were yacht owners who would be somewhat strange objects
of charity. But what the Appellants found on is the reasoning in the Court
of Appeal to the effect that encouragement of a mere sport or game is
not charitable though the sport or game may be beneficial to the public.
No doubt that is true in the main, but it cannot apply to the provision
or support of playing fields: yacht racing is far removed from the kind of
recreation which Parliament has declared to be charitable. And a charitable
purpose such as education may well be achieved in part at least by promoting
sport or games. The emphasis is on mere sport or games, and I cannot
suppose that any of the learned Judges had in mind the Acts of Parliament
dealing with recreation or would have denied that the encouragement of
games as a means to achieve a charitable purpose for those who took part
in them was quite a different matter.
As regards recreation the only other Act to which I need refer is the
Open Spaces Act, 1906. Section 3 provides for land held by trustees on
trust for the purposes of public recreation being transferred to a local
authority and for the conditions of the trust being varied with the approval
of the Charity Commissioners. And section 5 (1) provides that in certain
circumstances the owner of an open space may convey his estate or interest
in it to a local authority ” in trust for the enjoyment of the public ” and
such a conveyance must be for a charitable purpose if it is to be valid.
I am therefore of opinion that the purpose set out in the present deed
for the provision of facilities for recreation and for its promotion and
encouragement is a valid charitable purpose unless the class of beneficiaries
is too narrow—a matter to which I shall return. I can find no distinction
between a playing field and a park or garden for it is, I think, common
knowledge that certain games are habitually played in public parks and
the dedication to the recreation of the public authorised by the Act of 1888
must, in my view, have permitted the playing of games such as are played
on a playing field.
But I think that the matter can be dealt with on broader lines. I would
refer to the passage from Tyssen on Charitable Bequests at p. 5, quoted
30802 A5
10
with approval by my noble and learned friend, Lord Simonds, in National
Anti-Vivisection Society v. Inland Revenue [1948] AC 31 at p. 64: “One
” by one, the question of the validity of such trusts was brought before
” the Court of Chancery … It considered only this. Having regard to
” all legislative enactments and general legal principles is it or is it not
” for the public benefit that property should be devoted for ever to fulfilling
” the purpose named? If the Court considered that it was not for the public
” benefit, it held the trust altogether void.” It appears to me that the Court,
in determining what is for the public benefit, must be guided by the
views of Parliament as embodied in Acts of Parliament, and, unless any
general legal principle prevents it, courts should recognise as charitable
purposes not only the precise purposes mentioned in the statutes but others
so closely resembling them that they cannot reasonably be distinguished.
If that be right, then recreation on a playing field is, to my mind, not
distinguishable from recreation in a public park. And if the promotion of
recreation on a playing field is a charitable purpose, a fortiori I would think
the promotion of moral, social and physical training there to be a charitable
purpose.
But as this latter purpose is said to be too vague I must examine it in
more detail. The phrase ” social and physical training ” was not the inven-
tion of the donor in this case. It occurs in section 86 of the Education Act,
1921, which provides that: “For the purpose of supplementing and rein-
” forcing the instruction and social and physical training provided by the
” public system of education ” an education authority may make arrangements
to supply or maintain or aid the supply or maintenance of inter alia ” other
” facilities for social and physical training in the day or evening.” This
was extended by section 6 of the Physical Training and Recreation Act,
1937, so as to permit this to be done for persons of whatever age, whether
attending any educational institution or not. And in the Education Act,
1944, it is provided by section 53 that it shall be the duty of every local
education authority to secure that the facilities for primary secondary and
further education provided for their area include adequate facilities for
recreation and social and physical training, and ” further education ” includes
(section 41 (b)) ” leisure-time occupation, in such organised cultural training
” and recreative activities as are suited to their requirements, for any persons
” over compulsory school age who are able and willing to profit by the
” facilities provided for that purpose “
My Lords, with these examples of its use before him the donor in the
present case might well suppose that the phrase ” social and physical
” training ” has an ascertainable meaning, and, if it has, the addition of the
word ” moral ” could not vitiate the gift. I do not say that because a phrase
is habitually used in Acts of Parliament it necessarily follows that it must
have a precise meaning, but I would not readily hold that it is beyond the
capacity of a court to determine the meaning of such a phrase with sufficient
precision to enable it to determine whether any particular case falls within
or outside its scope.
It is, of course, necessary that the trust purposes should be sufficiently
precise to enable a court to determine, if a question should arise, whether
a particular activity is authorised by them or not and “If the property, as
” Sir William Grant said in James v. Allen 3 Mer. 17, ‘ might consistently
“” with the will be applied to other than strictly charitable purposes, the trust
“‘ is too indefinite for the Court to execute'” (per Lord Macnaghten in
Dunne v. Byrne [1912] AC 407 at p. 411). But the best way to show
that the purposes are too vague is to find a hypothetical case where it
could not be determined with reasonable certainty whether the case is
within the purposes or not, and the best way to show that the purposes are
too wide to be charitable is to find a hypothetical case which would be
within the purposes but beyond the scope of charity. Nevertheless, Counsel
for the Appellants refrained, no doubt for good reason, from submitting any
such case; none was suggested in argument, and I can find none myself.
It may be that the phrase ” social training ” apart from any context would be
too vague, but in this context I see no great difficulty. The word ” social ”
taken alone has acquired a variety of meanings, but to my mind ” social
11
” training ” in this context plainly means training calculated to make a person
more fit to associate with his fellows in society or the community in a God-
fearing, civilised and law abiding way, and that surely is one of the chief aims
of all education. In In re Compton [1945] Ch. 123, the money bequeathed
was ” to be used to fit the children to be servants of God serving the
Nation “. The bequest failed because the beneficiaries were only a fluctuating
body of private individuals, but there was no suggestion that these words
were too vague if the class of beneficiaries had been sufficient. Lord
Greene, M.R., said : ” The words are most apt to describe the ideals of such
” an education as that for which Dr. Arnold stood, and which, at any rate
” since his time, have always been regarded as the dominant purpose of a
” public school education “. In my opinion, the words in the present case
are no more vague than, and not essentially different from, those to which
Lord Greene referred. It is true that in that case the words referred to
pupils and in the present case they refer to persons of any age who can
take advantage of a playing field. But education does not stop at any
age. Recreation by itself may not be an educational purpose, but moral,
social and physical training is. At least, I cannot think of any activity
which would come within those words but would not be educational in
character, and I adopt the words of Lord Greene, M.R. in In re Strakosch
[1949] Ch. 529 at p. 539: ” If the object and the means indicated are clearly
” charitable then the Court is not astute to look for possible but subsidiary
” non-charitable means which might be within the words used “. I note
that in a recent case, In re Webber [1954] 1 W.L.R. 1500, Vaisey J. had no
doubt that furthering the Boy Scouts Movement was an educational and
therefore charitable purpose.
In some contexts social training might mean training in those arts and
graces which are sometimes supposed to facilitate admittance to certain
more exclusive circles of society, but that is not the meaning here. On a
playing field a person can learn the value of endurance and perseverance,
of assiduous practice, of unselfish association in a team, and of winning
with modesty and losing with a good grace, and, to my mind, that is the
kind of moral and social training which the donor’s words mean in this
deed and in the Acts from which they were taken. I did not understand
it to be argued that ” physical training ” was too vague a phrase, and if Par-
liament has enacted that providing for recreation in a public park is charitable
it would indeed be remarkable that the law should hold that provision for
outdoor training is not a charitable purpose. With all respect to your
Lordships who think otherwise, I cannot feel any substantial doubt that
the purposes of this deed are charitable and are sufficiently clearly stated
to be enforceable.
But I find the case of the Mission Hall more difficult. The trust
purposes here are almost identical with those for the playing field, the
only material difference being the substitution of the word ” religious”
for ” moral ” and the insertion of an additional purpose for the provision
of facilities for religious services and instruction, which is clearly charitable.
But my doubt arises with regard to recreation. The possible forms of
recreation in a hall are very different from those on a playing field, and
it does not appear that Parliament has ever declared indoor recreation to
be a charitable purpose. It is well settled that the provision of entertainment
or amusement is not by itself a charitable purpose: but if the dominant
purpose of the trust is charitable in character the fact that recreation is
provided as an adjunct to that purpose does not destroy the charitable
character of the trust. That appears to me to have been recognised in
Inland Revenue Commissioners v. City of Glasgow Police Athletic Associa-
tion [1953] AC 380, and I may also cite In re Mariette [1915] 2 Ch. 284,
where providing fives courts for a school was held to be charitable.
In the present case I have already pointed out that the Leaders must
endeavour to promote the religious and social and physical well-being of
the beneficiaries and only permit such activities as are calculated to con-
tribute to their health and well-being, and the only reference to recreation
is in the passage ” by the provision of facilities for religious services and
” instruction and for the social and physical training and recreation of”
12
the beneficiaries. It was argued that this case is indistinguishable from
Williams’ Trustees v. Commissioners of Inland Revenue [1947] AC 447. In
that case the decision of the Commissioners was that ” While certain features
” of the institute conform to the idea of charity, we have come to the conclu-
” sion that these features are not so dominating nor is the general character
” of the institute, such as effectively to distinguish it from an ordinary social
” club “. In his speech, with which the other noble and learned Lords con-
curred, my noble and learned friend, Lord Simonds, set out the activities
of the institute, which included maintaining a billiard room and tea and
games rooms, badminton and table tennis clubs and promoting dances, whist
and bridge drives, a weekly social and dance and an annual dinner and
garden party: on the other hand there were lectures and debates, literary
and educational classes and a library, and the office served as an information
bureau for Welsh people. It is true that the first object of the institute
was to create a centre in London for promoting the moral, social, spiritual
and educational welfare of Welsh people and fostering the study of the
Welsh language and of Welsh history, literature, music and art, but there
followed provision for using the institute for providing a meeting place for
Welsh people in London and their friends where they could obtain facilities
for social intercourse, study, reading, rest, recreation and refreshment, and
for meetings, concerts, lectures and other forms of instruction, discussion
or entertainment. My noble and learned friend said after examining the
authorities (at p. 458): ” It is clear, as I have already said, that they” (the
trustees) ” have not applied the income for charitable purposes only, and I
” do not doubt that they have applied them strictly in accordance with their
” trust.”
My Lords, not only do I fully accept that decision, but I do not see
how on the facts any other was possible. Recreation and entertainment
were so prominent both in the objects and in the activities of the institute
that I do not see how they could have been regarded as mere adjuncts of
other and charitable purposes. But surely it must be a question of degree
whether in any particular case this is so or not, and I find difficulty in
reading the trust purposes in this case as permitting the Mission Hall to
be used for anything at all resembling a social club. The hall is to be
used primarily for religious services and instruction and social and physical
training, which are, in my opinion, charitable purposes. It is open not only
to Methodists but to persons likely to become members of the Methodist
Church and attendance is of course voluntary. It may well be that
some of the beneficiaries would not attend if the activities were severely
limited to those which are strictly religious and educational. Any recrea-
tion must, under the deed, be such as is calculated to contribute to the
health and well-being of those who attend and must be sanctioned by the
Leaders, and, in my view, recreation is only to be promoted or permitted
in conjunction with and as ancillary to the other purposes, and therefore
it is not such as to destroy the charitable nature of the trust. If I had
thought that the hall could be freely used for mere recreation, entertainment
or amusement by persons who take no part in the other activities I would
have reached a different conclusion.
On this part of the case the Appellants relied also on several other
authorities and I must now deal with them. In Dunne v. Byrne [1912] A.C.
407, a bequest to the Roman Catholic Archbishop of Brisbane to be used
as he might judge most conducive to the good of religion was held not
charitable. I think that this decision was inevitable because the whole
of the money might well have been used for a non-charitable purpose,
” In Cocks v. Manners, L.R. 12 Eq. 574, there is the well-known instance
” of the dedication of a fund to a purpose which a devout Roman Catholic
” would no doubt consider ‘ conducive to the good of religion’ but which
” is certainly not charitable” (per Lord Macnaghten at p. 410). But if
I have rightly construed the deed of gift of the hall, this property could
not be used for any non-charitable purpose because any purpose or use
not strictly charitable in itself is purely ancillary to purposes which are
charitable. In Farley v. Westminster Bank [1939] AC 430, the bequest was
to the Vicar and Churchwardens ” for parish work “. If these words had
13
not been added the bequest would have been charitable because the law
would have implied that the money must be used in the performance of
their spiritual duties for strictly religious purposes. But it was held as a
matter of construction that the words ” for parish work ” were enlarging
words. Lord Atkin (at p. 435) quoted with approval from the judgment of
Lord Greene M.R. in the Court of Appeal ” It appears to me that, taking
” them as words of ordinary English, they cover any activity in the parish
“… which trustees of that character may be expected to perform, whether
” that work be strictly a religious purpose or strictly a charitable purpose,
” or whether it be a work considered to be conducive to the good of
” religion, or considered to be benevolent or generally useful to the in-
” habitants of the parish or the congregation of the Church “. Once it
had been decided that the words were enlarging words and had that
meaning, it was clear that the whole of the money could have been devoted
to non-charitable purposes, and again that appears to me to be quite different
from the present case.
Then the Appellants relied on the well known series of cases where
expressions such as charitable or philanthropic, charitable or public and
charitable or benevolent have been considered. In In re Macduff [1896] 2 Ch.
451, the bequest was “for some one or more purposes, charitable, philan-
” thropic or “. The blank was held to be immaterial, but the word
” philanthropic ” was held to be wider than charitable and vague and the
bequest was held invalid. Lindley L.J. said (at p. 463) ” We must get at
” something sufficiently definite to guide the Court as to the kind of trust
” which it has to execute, and that trust must be of the kind called
” technically a charitable trust”. And Lopes L.J. said (at p. 468) ” Looking
” at those words, I ask myself whether or not this property might not con-
” sistently with the will, having regard to the word ‘ philanthropic ‘. be applied
” to other than strictly charitable purposes, and I feel compelled to answer
” that question in the affirmative. It has been said that nothing can be
” suggested no purpose and no object can be suggested which would come
” within the meaning of the word ‘ philanthropic ‘ which is not also a charity.
” If that were so, I think the argument of the Attorney-General could be
” maintained; but that is not a view that I am able to adopt. I think
” I could suggest many objects which would come within the word
” ‘ philanthropic ‘ and to which the trustees would be entitled to apply the
” money, which are not charitable. I will not again allude to recreation
” grounds and grounds devoted to sport which are not for the poorer classes,
” but are generally for rich and poor alike. I think that would he a case “.
And then he gives another illustration. The Appellants found on this
reference to recreation grounds and it is certainly a dictum of some weight.
It appears on p. 460 that Lopes L.J. in the course of the argument asked:
” Would a gift for the establishment of cricket and recreation grounds be
” charitable? ” But the question does not seem to have been pursued and the
statutes to which we have been referred were not brought to the notice of
the Court. I wholly accept the rest of the quotation and particularly the
method of approach which it sets out.
Cases of bequests for charitable or public purposes are even further
removed from the present case because it is clear that public purposes
include purposes which are not charitable. I need not cite authority for
the proposition that, if the object is predominantly political, the gift is not
charitable, and I think that it would be generally agreed that in a democratic
country political purposes are among the most important and perhaps the
most important of all public purposes.
I can at this point deal briefly with an argument for the Respondents
that even if these trusts are not otherwise charitable they are for the relief
of poverty and are charitable for that reason. I agree that poverty does
not mean destitution, and that the relief of poverty can go a good deal
further than supplying the bare necessaries of life, but it cannot extend to
supplying everything that one would like people to have for their own good.
It is true that under these deeds the benefits are only to be available to
those ” of insufficient means otherwise to enjoy the advantages provided “,
but if the true meaning of the trust purposes is that something like social
14
and athletic clubs can be set up to provide mere sport, games, entertainment
and amenities for those who do not wish to take part in the other activities,
then I think that providing those advantages for those who could not other-
wise afford them goes some way beyond the relief of poverty. There are
many people well above the poverty line who cannot afford to pay for
such advantages. But if I am right in my reading of the trust purposes
and in my view of the law, then the element of poverty is not necessary
to make them valid charitable purposes.
But holding that the trust purposes are charitable does not mean that
the Respondents necessarily succeed. Not only must the purposes be chari-
table but the beneficiaries must be such a class as will bring in that public
element which is essential. The beneficiaries here are the members of the
Methodist Church who reside in two large county boroughs, and also
residents there who, in the opinion of the Leaders, are likely to become
members of that Church. I do not think that this latter extension of the
class of beneficiaries improves the Respondents’ case: if members of the
Church are not a sufficient class the addition of an indeterminate number
of individuals cannot remedy the defect. But, on the other hand, this
extension of the class cannot, in my view, create any difficulty, it does not
create any uncertainty about who the beneficiaries are. The donor has
made the Leaders the judges of whether any particular person has the
requisite qualification: no doubt the question which they have to determine
depends largely on opinion, but the Leaders are in a position to form an
opinion on the question. The selection of candidates or applicants frequently
depends largely on opinion, but that has never, so far as I am aware, been
put forward as a reason against the validity of a charitable bequest for
assistance to individuals, and I see no reason why it should be an obstacle
here. And if the members of the Methodist Church constitute a sufficient
class it was not argued that the limitation to those members who reside in
a particular large and populous area or to those members of insufficient
means to provide the benefits for themselves would make the class insufficient.
The argument was boldly advanced that, even if the purposes of these
trusts were charitable so that they would be valid trusts if the benefits were
open to all the limitation to Methodists vitiates their charitable character.
This House recently had occasion to consider this matter in connection
with an educational trust in Oppenheim v. Tobacco Securities Trust [1951]
A.C. 297, and my noble and learned friend, Lord Simonds, then stated the
law thus: ” It is a clearly established principle of the law of charity that a
” trust is not charitable unless it is directed to the public benefit. This
” is sometimes stated in the proposition that it must benefit the community
” or a section of the community. Negatively it is said that a trust is not
” charitable if it confers only private benefits . . . These words ‘ section
” ‘ of the community ‘ have no special sanctity, but they conveniently indicate
” first, that the possible (I emphasise the word ‘possible’) beneficiaries
” must not be numerically negligible, and secondly, that the quality which
” distinguishes them from other members of the community, so that they
” form by themselves a section of it, must be a quality which does not
” depend on their relationship to a particular individual. It is for this
” reason that a trust for the education of members of a family or, as in
” In re Compton. of a number of families cannot be regarded as charitable.
” A group of persons may be numerous but, if the nexus between them
” is their personal relationship to a single propositus or to several propositi,
” they are neither the community nor a section of the community for chari-
” table purposes.” I shall also quote, for a reason which will appear later,
from the judgment of the Privy Council delivered by Lord Wrenbury in
Verge v. Somerville [1924] AC 496: ” To ascertain whether a gift constitutes
” a valid charitable trust so as to escape being void on the ground of
” perpetuity, a first enquiry must be whether it is public—whether it is for
” the benefit of the community or of an appreciably important class of the
” community. The inhabitants of a parish or town, or any particular class
” of such inhabitants, may, for instance, be the objects of such a gift, but
” private individuals, or a fluctuating body of private individuals, cannot.”
The contrast between a section of the community and a fluctuating body of
private individuals has been used as the proper test in several cases
15
without any suggestion that it is an inadequate test, and it appears to
have its origin in the speech of Lord Cairns in Goodman v. Mayor of Saltash
7 App. Cas. at p. 650.
If these are the criteria to be applied in this case then it was not disputed
that members of the Methodist Church are a section of the community and
an appreciably important class of the community and are a particular class
of the inhabitants of West Ham and Leyton. I would not embark on any
theological enquiry, but it appears to me to be beyond doubt that member-
ship of any branch of the Christian Church is a quality which does not
depend on the members’ relationship to any individual or propositus. There
may be small sects which are not sufficiently numerous to form an
appreciably important class of a community, but no one would suggest that
that is true of the Methodist Church. Indeed, I understood Counsel for the
Appellants to admit that the beneficiaries in this case would be a sufficient
class to be proper objects for a charitable gift for educational or religious
purposes or for the relief of any kind of disability or distress, and that it
would not matter in such cases that the benefits were not confined to those
who could be said to be in poverty. But the beneficiaries in this case are
ordinary people not necessarily suffering from any disability and some at
least of the purposes may be neither religious nor educational, and it was
argued that in such a case a trust cannot be charitable in the eye of the Jaw
unless the benefits are open to the whole community or at least to all the
inhabitants of an area. The argument was that while there could be a valid
charitable trust of the fourth class in favour of a section of the community
consisting of the inhabitants of a particular area it would not be valid if in
favour of a section of the community denned in any other way. I can see no
justification in reason for this distinction, but it has often been pointed out
that the law of charity is full of anomalies and I must, therefore, examine
the argument.
The Appellants found this argument on Lord Macnaghten’s well-known
classification in Income Tax Commissioners v. Pemsel [1891] AC 531 at
p. 583 : ” ‘ 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.”
They say that ” beneficial to the community ” means beneficial to the whole
community. But then they are immediately faced with this difficulty: they
admit that a trust for the relief of sick or disabled Methodists could be a valid
charitable trust although its benefits were open to all Methodists rich and
poor alike but to no one else. But they get over the difficulty by saying that
any such trust falls within Lord Macnaghten’s first class and that when he
said ” trusts for the relief of poverty ” he meant to include trusts for the relief
of disability or distress whether financial or not. I find it difficult to believe
that Lord Macnaghten was ever guilty of such inaccurate use of language,
and I feel sure that this was not his intention here, because on the next page
in the Law Reports he refers to the first three classes in these words : ” the
” advancement of religion, or the advancement of education, or the relief of
” the poor “. The word ” poverty ” is sometimes loosely or metaphorically
used to mean lack of some thing other than money, but no one could say
” relief of the poor ” if he meant to include relief of disabled people irrespec-
tive of their means. But it is said that Lord Macnaghten took his classifica-
tion from the argument of Sir S. Romilly in Morice v. Bishop of Durham 10
Ves. 522 (which can be found quoted by Lindley L.J. in In re Macduff [1896]
2 Ch. at p. 466). ” First, relief of the indigent; in various ways: money:
” provisions: education: medical assistance etc.; secondly, the advancement
” of learning ; thirdly, the advancement of religion ; and fourthly, which is the
” most difficult, the advancement of objects of general public utility “. And it
is said that ” general public utility ” cannot include a case where the bene-
ciaries are only a class of the community. But the same difficulty arises here
again : in which class are we to put a trust for the benefit of disabled
Methodists? The Appellants again say in the first class, but the word
” indigent” appears to me to be as inappropriate as ” poor” to
include disabled people of ample means. It may be that Sir S.
16
Romilly did not have in mind cases of this kind: I have not
made a search to see whether any had come before the Court at
that time. But Lord Macnaghten did not merely copy the words of Sir S.
Romilly. He made at least one significant alteration, substituting ” education ”
for ” learning “: for education is now regarded as wider in scope than learn-
ing in the sense in which I think Sir S. Romilly used the word. And he
omitted the word ” general ” in the description of the fourth class. I cannot
believe that this was due to inadvertence; it seems to me much more likely
that he was not satisfied that it should be included.
But a meticulous examination of words used by judges, however eminent,
cannot be decisive if these words were used in cases where the present question
was in no sense in issue, so I turn to consider the authorities. In Verge v.
Somerville [1924] AC 496, the bequest was ” unto the trustees for the time
” being of the ‘ Repatriation Fund ‘ or other similar fund for the benefit of
” New South Wales returned soldiers “. There was no such fund in existence
bin it was held that this was a valid charitable trust and that a scheme should
be settled. The judgment of the Board was delivered by Lord Wrenbury. He
made it plain, particularly on p. 503. that this case fell within the fourth of
Lord Macnaghten’s divisions of charity, and he stated the test to be applied
in the words which I have already quoted, and I repeal the crucial words :
” the inhabitants of a parish or town, or any particular class of such inhabi-
” tants ” (the italics are mine) ” may, for instance, be the objects of such a
” gift “. He then posed the question whether if this lest is satisfied poverty is a
necessary element and continued : ” In argument it was scarcely pressed that
” it is necessary, and after the decision in Goodman v. Mayor of Saltash 7
” App. Cas. 633 it was not possible to maintain the general proposition that it
” is. A trust or condition in favour of the free inhabitants of ancient tene-
” ments in the borough of Saltash, in accordance with a usage whereunder
” they had the privilege of dredging for oysters, was there held to be a valid
” charitable trust, and. obviously, some of the inhabitants might not have been
” poor “. Then on p. 506 he said : ” It is a public trust and is to benefit a class
” of the community–namely, men from New South Wales who served in the
” war and were returned or to be returned to their native land . . . Their Lord-
” ships have no doubt that this is a charitable purpose. If it were (which in
” their opinion it is not) necessary to find that need of assistance is to be a
” qualification for benefit . . . and if it were necessary to find a reference to
” poverty, their Lordships have no difficulty in finding it “. Accordingly, the
ratio decidendi was that without poverty being a qualification there was a valid
charitable trust within Lord Macnaghten’s fourth division in favour of a class
of the community defined otherwise than by reference to all the inhabitants
of any particular area. It is true that there was no discussion of the argument
now submitted by the Appellants, but that was because it had not then
occurred to anyone to raise the question ; and if this case stood alone it would
not be fatal to the Appellants’ argument because your Lordships are not
bound by decisions in the Privy Council.
But your Lordships are bound by a previous decision in this House, and
it appears to me to be unquestionable that in Goodman v. Mayor of Saltash
this House decided that there was a valid charitable trust where there was no
question of poverty or disability or of education or religion, and where the
beneficiaries were not by any means all the inhabitants of any .particular
area. Lord Selborne, L.C. said (at p. 646) that the usage was ” confined to
” a particular class of persons, viz., the ‘ inhabitants of ancient messuages
“‘ within the borough ‘ (whose number would not be capable of indefinite
” increase)”. Lord Blackburn based his dissent on the fact that he thought
it quite clear that they were not the public at large (p. 654), and Lord
Fitzgerald regarded them as a recognised class within the borough (p. 668).
It is quite true that some parts of the ratio decidendi in Goodman’s case have
been so modified by subsequent decisions of this House that it would appear
that those noble and learned Lords who took part in these decisions did not
accept as an inflexible rule that this House is bound by every part of every
ratio decidendi in every previous case. But no one has ever suggested that
the rule that we are bound by actual decisions of the House is other than
absolute and inflexible, and, apart altogether from the ratio decidendi in
17
Goodman’s case, it appears to me that the actual decision in that case is
inconsistent with the Appellants’ argument. Moreover, if there has been a
modification of that ratio decidendi, it has only been with regard to the
question whether the trust purposes must be not only public purposes but
also of such a nature as to be charitable in character, and on other matters,
including that now in question, the case appears to me to be fully
authoritative.
I may add that I have found no support for the Appellants’ submission that
Lord Macnaghten’s first class can include cases for relief of distress or dis-
ability where poverty is not a necessary qualification for receiving benefits. But,
besides the authorities I have dealt with, there are a number of expressions
or indications of opinion that such cases fall within the fourth class. For
example, I think that it clearly appears in In re Hobouon Aero Components
[1946] Ch. 194 at pp. 202, 203, that Lord Greene, M.R. thought that the relief
of air raid distress would be a good charitable object within the fourth class,
and in Oppenheim’s case at p. 311 Lord Normand referred to this and other
cases as being within that class. I shall not trouble your Lordships with
further examples.
I must now examine the case of Trustees of the Londonderry Presbyterian
Church House v. Commissioners of Inland Revenue, 27 T.C.431 : 1946
N.I. 178. The Appellants relied on it for two purposes: first as an authority
on the question whether the trust purposes in this case are charitable in their
nature, and secondly in support of the argument which I am now consider-
ing. On the former question much depends on the construction of the
particular deed, and on that matter I shall be as brief as I can but the second
is a pure question of law and, as this case contains in the judgment of
Babington, L.J. the only authority which the Appellants were able to cite
in support of their argument, I must deal with it in more detail.
The trust purposes so far as relevant were ” to permit the same or any
” part thereof to be used as a Hall for meetings or for Social or Recreation
” purposes in connection with the various Presbyterian Churches in the City
” of Londonderry and the surrounding district or as a Hostel or Boarding
” House or as a Library or for such other purpose or purposes as the Board
” of Governors . . . shall from time to time think fit, it being the true
” intention and meaning of these presents that said premises shall be used
” for the purposes of assisting and helping in the religious moral social and
” recreative life of those connected with the Presbyterian Church . . .
” . . . in such manner as the said Board of Governors . . . shall
” from time to time think right.” These purposes appear to me to be con-
siderably wider than those set out in the Conveyance of the hall in the present
case. I have already said that I would not have held that trust in this case
to be charitable if I had thought that the recreation permitted was not merely
ancillary to the other purposes and that the hall could be freely used for
recreation and entertainment by those who took no part in the other activi-
ties. I think that both the Londonderry case and the present case are near
the border line. If I could construe the trust provisions in the way in which
Lord MacDermott (then MacDermott, J.) construed them I would reach the
result which he reached but, on the whole, I prefer the construction put on
these provisions in the Court of Appeal and on that construction the premises
could be used for non-charitable purposes in ways not purely ancillary to the
charitable purposes set out in the deed, and it appears that they were in fact
so used. I do not find in this case any sufficient answer to the special con-
sideration which I have stated with regard to the hall in the present case.
And it appears to me to have no bearing on the present case with regard
to the playing field.
On the second question, what is a sufficient class of the community. Lord
MacDermott and Andrews, L. C.J. rejected the argument for the present
Appellants for reasons with which I am in substantial agreement, but
Babington, L.J. took a different view. He said (at 27 TC pp.451 and 452)
—” The Presbyterian Church is not a section of the public. Its members, or
” those of its members to be benefited under this trust, are no doubt members
” of the public, but they are not a section of it any more than were the work-
” people in In re Drummond [1914] 2 Ch.90. and the trust is therefore not a
18
” trust for general public purposes but for a fluctuating body of private
” individuals . . . Considerable confusion has, I think, arisen from a failure
” to distinguish between the public element in cases under the first three of
” Lord Macnaghten’s categories and the fourth. Under the first three the
” charitable intention must be established, i.e., for the relief of poverty, the
” advancement of religion, or the advancement of education. The objects
” must be of a public nature, as FitzGibbon, L.J. says, but it is immaterial
” under these categories how the class is delineated provided it is adequate
” in numbers or importance. In cases falling within category number four,
” however, there can be no charity until it is shewn that the gift is to or for
” the benefit of the public or a section of the public … If this trust
” had been for the advancement of religion the class would clearly be suffi-
” cient in numbers and importance to sustain it as a good charitable trust,
” though it only benefits a particular faith, the members of which do not
” constitute a section of the public.”
My Lords, the reasoning in the passage which I have quoted appears to me
to be in direct conflict with the decision of this House in Oppenheim’s case,
and it is right to say that that case had not been reported when Babington,
L.J. gave his judgment. In Oppenheim’s case the trust was for the advance-
ment of education, but the decision of this House was that it is not enough
that the class of beneficiaries is numerous, it must also be a section of the
community and the ratio decidendi applies equally to a trust for the advance-
ment of religion. So if the reasoning of Babington, L.J. is correct and the
members of a religious denomination do not constitute a section of the public
(or the community) then a trust solely for the advancement of religion or of
education would not he a charitable trust if limited to members of a par-
ticular Church. Of course, the Appellants do not contend that that is right:
they could not but admit the members of a Church are a section of the com-
munity for the purpose of such trusts. But they maintain that they cease
to be a section of the community when ii comes to trusts within the fourth
class. Babington. L.J. gives no support to that contention, but the Appel-
lants cannot succeed on this argument unless that contention is sound.
Poverty may be in a special position, but otherwise I can see no justification
in principle or authority for holding that when dealing with one deed for
one charitable purpose the members of the Methodist or any other church
are a section of the community, but when dealing with another deed for
a different charitable purpose they are only a fluctuating body of private
individuals. I therefore reject this argument and on the whole matter I am
of opinion that this appeal ought to be dismissed.
Lord Tucker
MY LORDS,
Lord Justice Jenkins’ analysis of the two conveyances in question led
him to the conclusion that the object of the first trust was the promotion
of the religious, social and physical well-being of persons resident in the
County Boroughs of West Ham and Leyton, and of the second trust the
promotion of the moral, social and physical well-being of persons so resident
who are considered by the leaders of the Stratford Newtown Methodist
Mission to be likely to become members of the Methodist Church and
to be of insufficient means otherwise to enjoy the advantages provided by
the deed, and that the remaining provisions merely prescribe the means
whereby these objects were to be attained.
My Lords, I agree with this construction of the deeds and I am also in
agreement with all the members of the Courts below in holding that these
trusts cannot be regarded as trusts for the relief of poverty.
In considering whether they fall within the fourth class of Pemsel’s case,
as the Court of Appeal have held, or within Class 2—trusts for the advance-
ment of education—as was submitted in the alternative for the first time
before your Lordships, the words which, in my view, create the difficulty
19
are ” the promotion of social well-being”. This is an extremely vague
phrase which may have different meanings to different minds and may
include things considered by some, but not by others, to be advantageous.
It would appear to cover many of the activities of the so-called ” welfare
” state ” and to include material benefits and advantages which have little
or no relation to social ethics or good citizenship, concepts which are them-
selves not easily definable. I find it impossible to construe these trusts in
such a way as to restrict the operation of this language to ” promoting or
” inculcating those standards of secular conduct or behaviour expected of
” a good neighbour and a good citizen ” as the Court of Appeal have done.
It would, I feel, be a considerable extension of any previous decision to
allow language of this vague nature to qualify a trust for inclusion as
charitable within the spirit and intendment of the preamble to the Statute
of Elizabeth.
The present case is not unlike that of Londonderry Presbyterian Church
House v. Commissioners of Inland Revenue 27 Tax Cases 431. The language
is not, of course, identical. In the Irish case the relevant words were: —
” Upon trust to permit the same or any part thereof to be used as a
” Hall for meetings or for Social or Recreation purposes in connection
” with the various Presbyterian Churches in the City of Londonderry
” and the surrounding district or as a Hostel or Boarding House or as
” a Library or for such other purpose or purposes as the Board of
” Governors . . . shall from time to time think fit, it being the true
” intention and meaning of these presents that said premises shall be
” used for the purposes of assisting and helping the religious moral
” social and recreative life of those connected with the Presbyterian
” Church in the City of Londonderry and surrounding district in such
” manner as the said Board of Governors . . . shall from time to time
“think right”.
Lord Chief Justice Andrews in the course of his judgment hi the Court of
Appeal said: –
” Judicial minds have operated not always consistently on facts
” admittedly different; and the result can only be described as in a
” measure chaotic. I shall simply content myself with saying that I
” find nothing in the statutes referred to which would assist me in holding
” that the trusts in the present case for religious, moral, social and
” recreative purposes, excluded as I have held them to be from Lord
” Macnaghten’s third class, fall within the fourth class as a valid
” charitable trust. The test is not whether the objects or purposes aimed
” at are beneficial to or receive the general acceptance of the community.
” It is simply whether they conform or not to the requirements and
” essentials of a legal charily “.
My Lords, I would respectfully adopt this language and apply it to the
present case.
For this reason, which. I think, also in conformity with the decision of
this House in Williams’ Trustees v. Inland Revenue Commissioners [1947]
A.C. 447. I would allow this appeal without expressing any view on the
question whether the beneficiaries form a sufficient class for the purposes
of Class 4 of Pemsel’s case.
MY LORDS,
I am unable to accept the construction put on these deeds by the Court
of Appeal. Before addressing myself to the words I will make one or two
general observations. I agree with the Court of Appeal in rejecting the
argument that as a matter of law a trust to qualify under Lord Macnaghten’s
fourth class must be analogous to the repair of ” bridges portes havens
” causwaies churches seabankes and highewaies ” being the examples given
20
in the preamble outside the three main categories of poverty, religion and
education. The words used by the Court of Appeal in In re Strakosch
deceased [1949] Ch. 529, do not afford any basis for this argument as
Jenkins, L.J., demonstrated. The reference was to show that the repair
of a bridge is charitable notwithstanding its use by rich as well as poor.
The submission is inconsistent, in my opinion, with some of the cases decided
under the fourth head. I think, however, that a trust to be valid under this
head would normally be for the public or all members of the public who
needed the help or facilities which the trust was to provide. The present
trust is not for the public.
I cannot accept the principle submitted by the Respondents that a section
of the public sufficient to support a valid trust in one category must as a
matter of law be sufficient to support a trust in any other category. I think
that difficulties are apt to arise if one seeks to consider the class apart
from the particular nature of the charitable purpose. They are, in my
opinion, interdependent. There might well be a valid trust for the promo-
tion of religion benefiting a very small class. It would not at all follow
that a recreation ground for the exclusive use of the same class would be a
valid charity though it is clear from the Mortmain and Charitable Uses Act,
1888. that a recreation ground for the public is a charitable purpose.
This trust not being for the public, the necessary element of public benefit
if present must be found in the purposes. I will deal with the first deed
the wording of which is more favourable to the Respondents’ argument
in that it contains an express reference to religious services and instruction.
It is not, however, suggested that the trust as a whole can be treated as
one for the promotion of religion, the other purposes being merely ancillary.
I agree with the Courts below that the ” means ” clause has no application
to the facilities for religious services and instruction. The clause is im-
portant in that it implies that the advantages, social, physical and recrea-
tional are a question of means. The more pecunious members can get
them elsewhere. The leaders would no doubt organise (he social and
recreational activities, but if it was intended that their spiritual and moral
influence should play an important part the advantages would not have been
referred to as a question of means. The word ” well-being ” though qualified
by ” religious ” as well as ” social and physical ” means primarily, in my
opinion, a happy or contented state. Social well-being would be promoted
when people were happy together—an important factor in institutional life.
Physical well-being is promoted by exercise or recreation and the health
and contentment which normally follow. ” Social training ” is an ambiguous
expression and may well be too vague. Its meaning to me is training in
social behaviour, in manners. I think, therefore, these words entitle the
Trustees to run a social centre in the ordinary sense for the Methodists
and prospective Methodists as set out in the deed. On this view the trust,
limited as it is, is plainly not a charity, and the Court of Appeal would,
as I read their judgments, have so held.
Had I been able to agree with the more charitable construction placed
on the deeds by the Court of Appeal I should have felt great difficulty in
reconciling their conclusion with the decision of this House in Williams’
Trustees v. Inland Revenue Commissioners (1947) A.C. 427. I am aware
of the differences that could be emphasised, but on the whole I think the
deed in Williams’ case was nearer the borderline than the present deeds.
The Attorney-General as amicus curiae made certain submissions as to
recreation grounds for the public and village halls. Nothing that I have
said is to be taken as throwing any doubt or light on these matters. Where
a ground or hall is for the public different considerations clearly arise.
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