CHICHESTER DIOCESAN FUND AND BOARD OF
FINANCE (INCORPORATED)
v.
SIMPSON AND OTHERS
The Lord Chancellor
MY LORDS,
The Will with which we are concerned in this appeal is one
in which a public-spirited testator has directed his executors to
apply the very substantial residue of his property ” for such charit-
” able institution or institutions or other charitable or benevolent
” object or objects in England ” as they should select. The Court
of Appeal (Lord Greene M.R., Clauson and Goddard L.JJ.), over-
ruling Farwell J. has decided that this is not a valid testamentary
disposition.
Alter studying the powerful judgment of the Master of the Rolls
and weighing the arguments which have been presented to the
House, I cannot doubt that a gift expressed in the terms which I
have quoted, in the absence of context to vary its prima facie
meaning,, is void for uncertainty.
The fundamental principle is that the testator must by the terms
of his will himself dispose of the property with which the will
proposes to deal. With one single exception, he cannot by his will
direct executors or trustees to do the business for him. That ex-
ception arises when the testator is minded to make gifts for charit-
able purposes, and where he directs his executors or trustees, within
such limitations as he chooses to lay down, to make the selection
of charities to be benefited. This exception from the general
principle that the testator has to decide in his will the specific
destination of his property is allowed because of the special favour
which the English law shows to charities, and the conception of
what is charitable for such purposes has been elaborately worked
out so that the courts are able to determine whether a particular
gift is charitable or not. But when, as here, the expression is
” charitable or benevolent”, it is impossible to attribute to the
word ” benevolent” an equal precision, or to regard the courts as
able to decide with accuracy the ambit of that expression. It is
not disputed that the two words ” charitable ” and ” benevolent”
do not ordinarily mean the same thing; they overlap in the sense
that each of them, as a matter of legal interpretation, covers some
common ground, but also something which is not covered by the
ather. It appears to me that it inevitably follows that the phrase
‘ charitable or benevolent” occurring in a will must, in its ordinary
:ontext, be regarded as too vague to give the certainty necessary
before such a provision can be supported or enforced.
Then, is there any special context in this will which would
justify a different interpretation ? I have listened with much sym-
pathy to the efforts to find one, but it does not seem to me, notwith-
standing the late Mr. Justice Farwell’s opinion, that there is any
context which might give to the impeached phrase a special mean-
ng. The conjunction ” or ” may be sometimes used to join two
vords whose meaning is the same, but, as the conjunction appears
n this will, it seems to me to indicate a variation rather than an
dentity between the coupled conceptions. Its use is analogous in
he present instance to its use in a phrase like ” the House of Lords
‘ or the House of Commons “, rather than to its use in a phrase like
‘ the House of Lords or the Upper Chamber “.
I regret that we have to arrive at such a conclusion, but we
lave no right to set at nought an established principle such as
his in the construction of wills, and I therefore move the House
to dismiss the appeal.
Lord
Chancellor
Lord
Macmillan
Lord
Wright
Lord
Porter
Lord
Simonds
[2]
CHICHESTER DIOCESAN FUND AND BOARD OF
FINANCE (INCORPORATED)
v.
SIMPSON AND OTHERS
Lord Macmillan
MY LORDS,
The law, in according the right to dispose of property mortis
causa by will, is exacting in its requirement that the testator must
define with precision the persons or objects he intends to benefit.
This is the condition on which he is entitled to exclude the order
of succession which the law otherwise provides. The choice of
beneficiaries must be the testator’s own choice; he cannot leave
the disposal of his estate to others. The only latitude permitted
is that if he designates with sufficient precision a class of persons
or objects to be benefited he may delegate to his trustees the selec-
tion of individual persons or objects within the denned class. The
class must not be described in terms so vague and indeterminate
that the trustees are afforded no effective guidance as to the ambit
of their power of selection. (See Houston v. Burns [1918], A.C. 337,
per Viscount Haldane, at pp. 342-3.)
Unfortunately for the efficacy of their testamentary dispositions,
testators or their advisers, as the many reported cases show,
frequently fail to observe this rule and by the language which
they employ leave their trustees at large in the selection of the
persons or objects to be benefited, with the result that the bequest
is held void for uncertainty. Thus a bequest to such public pur-
poses as the testator’s trustees may select is not ” within the
” description of a particular class of individuals or objects ” (per
Lord Davey in Blair v. Duncan [1902], A.C. 37, at p. 44). Nor
is a bequest in favour of benevolent purposes to be selected by the
testator’s trustees sufficiently specific. (See, e.g. Attorney-General
for New Zealand v. Brown [1917], A.C. 393, and Attorney-General
of New Zealand v. New Zealand Insurance Co., Ltd., 1936, 3 All
Eng. Rep. 888.)
One class of objects, however, notwithstanding its generality
and comprehensiveness, namely charitable purposes, has always
been accepted as sufficiently definite to satisfy the rule, because
of the favour which the law extends to charity. Most of the cases
which have arisen have been due to a tendency on the part of
testators to associate with the word ” charitable ” other words of
vague import. The present is one of these. Here the bequest is
in favour of ” such charitable institution or institutions or other
” charitable or benevolent object or objects in England as my acting
” executors or executor may in their or his absolute discretion
” select”.
As the law of England stands it is impossible to sustain this
bequest as valid. The testator has empowered his executors to
distribute the residue of his estate inter alia among either charitable
objects or benevolent objects and has thereby empowered them to
devote the whole bequest, if they please, to benevolent objects, a
class of objects which has over and over again been held by the
Courts to be too uncertain. Alike on authority and on principle
the bequest is accordingly void.
In construing a will it is proper to read the instrument as a
whole. By doing so it may sometimes be found that a testator has
used a word or a phrase in a sense of his own, different from its
[3] 2
ordinary connotation. If a testator were to make a bequest in
favour of benevolent objects, adding ” by which I mean charitable
” objects”, the bequest might well be held to be valid. In the
present instance, however, I cannot find any context either in the
words of the bequest itself or elsewhere in the will which would
justify imparting to the testator’s use of the word ” benevolent”
any other than its ordinary wide signification. If the testator had
written “charitable and benevolent” instead of “charitable or
” benevolent” the bequest Would, on the authorities, have been
sustained, for it would then have been read as in favour of such
benevolent objects as are charitable or such charitable objects as
are benevolent, charity in either way predominating. But again
I rind no warrant for reading conjunctively two words which the
testator has expressly disjoined.
I confess it is somewhat disconcerting to find that the Court of
Session in Scotland has in a number of instances taken a different
view in construing words very similar to those now under con-
sideration by this House. Thus it has been held competent for a
testator in Scotland to empower his trustees to make a selection
among ” societies or institutions of a benevolent or charitable
“nature” (Hay’s Trustees v. Baillie, 1908, S.C. 1224); or among
” charities or benevolent or beneficent institutions” (Paterson’s
Trustees v. Paterson, 1909, S.C. 485); or among “charitable or
” philanthropic institutions ” (Mackinnon’s Trustees v. Mackinnon,
1909, S.C. 1041). The topic is very fully discussed in Reid’s Trustees
v. Cattanach’s Trustees, 1929, S.C. 727, where the introduction of
” public institutions ” as an alternative was held fatal to the bequest.
Yet in Scots law the principle that a testator must himself designate
his beneficiaries and cannot delegate to others the selection of
beneficiaries from an indefinite class is equally well established;
and so too is the recognition of charitable objects as a sufficiently
definite class.
It would be out of place to discuss here the validity of the pro-
cesses of reasoning by which the Courts in Scotland reached the
decisions which I have just cited. I may remark that they seem
to have turned mainly on an interpretation of the monosyllable
” or “, interposed between the word ” charitable ” and the other
words in question, not as separating distinct and contrasted classes
of objects but rather as an exegetical link between convertible and
equivalent synonyms. The fact that in Scotland the term ” charit-
” able ” has in law a less rigidly technical and artificial meaning
than in England may also have had something to do with it. But
I must not allow myself to be enticed into a further exploration
of what for the present purpose is a foreign field, however attrac-
tive. This is an English case, and in my opinion the decision of
the Court of Appeal is in conformity with the law of England and
should be affirmed.
3
CHICHESTER DIOCESAN FUND AND BOARD OF
FINANCE INCORPORATED
[4]
Lord
Chancellor
Lord
Macmillan
Lord
Wright
Lord
Porter
Lord
Simonds
V.
SIMPSON AND OTHERS
Lord Wright
MY LORDS,
The testator in this case after various bequests, left the residue of
his estate to his executors to apply to ” such charitable institution
” or institutions or other charitable or benevolent object or objects
” in England ” as in their absolute discretion they should select.
He died in 1936. The will having in due course been
proved the executors distributed the residue, amounting to over a
quarter of a million sterling, among some 140 institutions or objects
which could properly be described as both charitable and
benevolent. But some time afterwards certain next of kin claimed
that the bequest of the residue was invalid and that the next of kin
were entitled to have it. The question, of course, has to be
determined on the language of the will. There was no suggestion
that the testator did not mean to leave the residue to charities. The
objection was that the bequest was invalid because the words ” or
” benevolent” introduced a different category from ” charitable ”
which preceded them. It was not questioned that if the words had
been ” charitable and benevolent” the bequest would have been
perfectly good. That would mean objects which were both charit-
able and benevolent. The word ” or “, it was said, severed ” charit-
” able ” from ” benevolent”, so that two different classes were
meant, and the executors were thus faced with a choice between
two different categories, and could have distributed the residue
among objects which were benevolent but not charitable, and
that it was beyond the powers of the Court when engaged in ad-
ministering trusts to apportion the distribution between what was
charitable and what was benevolent. The bequest, it was said,
was void for uncertainty. By using ” or ” instead of ” and ” the
testator had fallen into what was called a trap. The whole bequest
was thus void.
No one would deny that charitable bequests, which may
be made by general words for objects to be selected by the
Executors and which are free from certain restrictions such as the
rule against perpetuities, and have certain immunities under the
Income Tax Acts, should be scrutinised before their right to be
classed as charitable is admitted, but it is a different matter to make
the test depend on anything but matters of substance. Courts of
Equity have been criticised for their construction of particular
words of bequest or their limitation of what bequests are permissible
as charitable. In Bourne v. Keane, 1919 A.C. 815 the House of
Lords overruled a series of authorities extending from 1835 and
upheld the validity of a bequest of personal estate for masses for
the dead. There was no decision binding the House so as to prevent
them holding as they did. In the present case the question here
relates to the construction of the words of the particular will. These
have to be construed as they occur in their context. The decision
depends in my opinion on the meaning of the few relevant words.
The question is whether the words “or other charitable or
” benevolent object or objects ” mean in their setting two separate
classes, the one class charitable and the other benevolent, regarded
as distinct or separate, or whether they mean one class only, that
is, of objects which may be indifferently described as charitable
or benevolent. There is no difficulty in the latter construction.
[5] 2
There is no authority binding this House to exclude it in this
particular case: the two words run so closely into each other in
meaning and overlap so largely that it is a natural view: in
addition the preceding sentence seems to me to confirm this con-
struction simply as a matter of words. The difficulty arises from
the want of definition which has always characterised this branch
of law. If, in the case of a general bequest to charity, so much
depends on the mere word which is to govern the executor’s power
of selection, the least that could be expected would be a precise
definition of the meaning and scope of the dominant word, which
is charity. The difficulty in a case like the present is not quite the
same as the difficulty which has constantly faced the Court in
deciding whether a specific purpose named in a bequest is or is
not charitable. That indeed has led to a host of decisions, often
difficult to reconcile or explain. Lord Sterndale M.R., dealt with
both aspects of the difficulty in in re Tetley, 1923, 1 Ch. 258. The
question there was the meaning of the word patriotic. He lamented
the absence of ” any . principle which will guide one easily and
” safely through the tangle of cases as to what is and what is not a
” charitable gift…. The whole subject is in an artificial atmosphere
” altogether “. Dr. Allen, the learned author of Law in the Making
(3rd Ed., p. 343) has dwelt upon the same difficulty. I confess I am
convinced that the time has come when modern minds imbued with
modern ideas should attempt to achieve a clear, workable and
comprehensive definition of what is meant by charitable and its
cognate terms, such as benevolent, philanthropic and the like.
That is a task for the legislature.
These reflections, however, will not help in deciding what is the
true construction of this will. But I find to my regret, that I cannot
approach this question or examine authorities which seem to me
to throw any light on its decision until I have attempted to under-
stand from the Reports what ” charitable ” and other kindred words
have been taken to mean. I do not think that I have found
any accepted or satisfactory definitions. I may start with the Statute
of 43 Eliz. (1601). That Statute, or more correctly its preamble,
together with analogies drawn from it, is still even now, it seems,
taken as authoritative. The preamble will be found conveniently
set out in section 13 (2) of the Mortmain and Charitable Uses Act,
1888, which after reciting that in ” divers enactments and docu-
” ments reference is made to charities within the meaning purview
” and interpretation of the said Act”, enacted that references to
such charities should be construed as references to charities within
the meaning purview and interpretation of the said preamble. In
other respects the Act of 1888 repealed the Act of Elizabeth. That
Act had provided a special proceeding under the Chancellor for
the reform of deceits and breaches of trust, touching land given
to charitable uses. It had long become obsolete, when it was re-
pealed in 1888, subject to the limited saving of the Preamble quoted
above. That, however, did not contain any definition of the charities
it referred to: what it contained was a list of charities so varied
and comprehensive that it became the practice of the Court of
Chancery to refer to it as a sort of index or chart. This was observed
by Lord Macnaghten in Pemsel’s case, 1891, A.C. 531, at p. 581.
Charities had even before 1601 been subject to the equitable juris-
diction of the Court of Chancery. But the Act of 1601 did not give
a definition of charities, but merely a collection of instances of a
somewhat miscellaneous character. The collection included, in addi-
tion to objects which would ordinarily be considered to be elee-
mosynary objects, other objects, such as school of learning, repair
of bridges, ports, havens and churches and other objects of general
utility. It is difficult to find definitions of charity, though as Lord
Macnaghten explained (loc. cit.), it has a legal technical sense in
English Law. But in 1767 Lord Camden L.C., in Jones v. Williams,
36364 A 3
3 [6]
Amb. 651, defined it as a gift to a general public use which extends
to the poor as well as the rich. In Goodman v. Mayor Saltash
7 AC 633, at p. 642, Lord Selborne L.C. said that ” a gift subject
” to a condition or trust for the benefit of the inhabitants of a parish
” or town or of any particular class of such inhabitants is (as I
” understand the law) a charitable trust”; and he cited Wright v.
Hobart, Q Mod. 64, in which Lord Macclesfield established as a
charitable trust an ancient grant of land for the pasture during three
months of the year of the cows of as many of the inhabitants of a
certain village as were able to buy three cows. These inhabitants
might perhaps have been counted on the fingers of one hand. Not
only by the original list in the Act of Elizabeth, but by the mass
of decisions which have been given by the free use of analogies
extending the original items between that date and the present, it is
made clear that “charitable trust ” in England is a very comprehen-
sive term, including ” purposes beneficial to the community”, which
Lord Macnaghten stated as the fourth and most general of the
four principal divisions in his definition of charity in its legal sense.
This division was to coyer purposes not falling under any of his
other three divisions, which are trusts for the relief of poverty, trusts
for the advancement of education, trusts for the advancement of
religion. That was in Pemsel’s case, 1891, A.C. 531, at p. 583. The
question in the case was whether the word ” charity,” us used in the
Income Tax Acts, bore the same meaning in its application to Scot-
land as it did when applied in England and Ireland. The House of
Lords held that it did, even though the technical meaning of the
word, that is its comprehensive meaning, which includes educa-
tion or religious or other general charities, as well as charities for
the relief of the poor, did not completely prevail in Scotland, but
Lord Macnaghten concluded that he could not discover any great
dissimilarity between the law of Scotland and the law of England
with respect to charities. His definition has been subjected to certain
criticisms, particularly the fourth division, but shows the extra-
ordinarily wide and indeterminate range covered by the word
” charity ” in England whenever it is to be construed in its technical
legal sense. Lindley L. J. after referring to the very wide and in-
definite sense in which the word ” charitable ” is used in Courts of
Equity, adds ” Probably not one man in a thousand understands
” what that sense is, and the sense itself is a very indefinite one ”
(in re Macduff, 1896, 2 Ch. 451, at p. 464). This breadth is con-
firmed by the decisions upon charities. I shall be content to refer
merely to two lists of instances; the first is that contained in Tothill’s
Cases in the High Court of Chancery, List 27, which contains deci-
sions on Charitable Uses between 1598 and 1639; the second is the
very full collection of decisions up to 1932 as to what are or are not
charities in Hailsham’s Laws of England, Vol. IV, pp. 107 to 138. The
wide range and variety are bewildering, and show how generously
the Court has availed itself of the licence to extend the Act of Eliza-
beth by analogy. But, all the same, it is impossible not to feel some-
times how difficult particular decisions are to reconcile with others,
or to understand why one charity is taken and another left, or not
to feel that over-subtle or fine distinctions have been drawn. The
absence of a modern and scientific definition cannot fail to intro-
duce uncertainty, as the great mass of contested litigation shows.
But what I am concerned with at the moment is that though “char-
ity ” is a very wide and comprehensive term, as shown in its partic-
ular applications, distinctions have at times been drawn between
charitable ” as a general term, and other similar general terms as
occasionally used where there is a disposition in favour of general
objects. But the Court of Chancery have adopted “charity” or “cha-
ritable as a sufficient general description in cases where testators
have left bequests to such charitable objects as their executors may
select. This has been held to be a sufficient definition to enable the
Court to administer the trust. But if a second description is added
[7] 4
and that second description is used disjunctively, not conjunctively,
the Court washes its hands of the administration and holds the en-
tire bequest invalid. The whole gift fails for uncertainty. There is,
it is said, no general trust for charity binding the whole fund. The
Court will not disregard the invalid part of the bequest and ad-
minister the valid. Such is the rule of the Court. Whether it is a
wise or sensible rule is not here material to consider. By way of
contrast though the cases are not quite parallel, it may be noted
that the common law ever since Pigot’s case, 11 Co. Rep. 26 (b),
has held that when in the same instrument there are both legal and
illegal conditions, the legal conditions may prima facie be enforced
whereas the part which is illegal cannot. Courts of Equity have
been more rigid and have refused to apply anything like their
cy-pres doctrine to such cases, or to make any apportionment.
They have most nearly approached an apportionment in cases like
in re Douglas, 35 Ch. D. 472, but that is regarded as a special and
different type. Lord Davey discusses these distinctions in Hunter
v. Attorney General, 1899, A.C. 309, at p. 324. But the strict rule
only applies if it is sought to give the executors a real choice
between two separate objects only one of which is charitable, that
is, if the two substantives or adjectives are to be read disjunctively.
If they are to be read conjunctively, then there is only one class
or area of selection, and if that is charitable, the bequest is good.
Such a case is illustrated by in re Best, 1904, 2 Ch. 354, where the
two adjectives “charitable” and ” benevolent,” coupled it is true by
” and “, but ” and ” and ” or ” may be interchangeable, were held
to describe a single class, the members of which combine the quali-
ties of charitable and benevolent. This is possible because of the
wide and vague range of the word charitable and its close kinship
with benevolent. Whether the words are used in any particular
will as conjunctive or disjunctive must be a question of construc-
tion of the particular will. ” Benevolent,” which is the other
material term here, is also a word of wide connotation, and almost
interchangeable with charitable. That the two words overlap to
a very great extent is clear. Lord Herschel, in Pemsel’s case (supra),
is careful to equate charity and benevolence even as the words
are popularly used. He sums up, at p. 572, that ” the popular con-
” ception of a charitable purpose covers the relief of any form of
” necessity, destitution, or helplessness which excites the compassion
“or sympathy of men and so appeals to their benevolence for
relief “. He went on to include in this conception of charity the
relief of what is often called spiritual destitution or need, and treats
that as a form of ” benevolent assistance “. In these senses it seems
to me that the word ” benevolence ” is used of the spiritual impulse,
while charity is its embodiment in practice. Lord Herschell would,
I think, have used the same language in reference to the purposes,
religious or educational or other purposes beneficial to the com-
munity, to which Lord Macnaghten referred. The provision of good
water, or any scheme of social amelioration, involves benevolent
motives and their practical operation. It may indeed be that the
benevolent motive is less apparent or in a sense is non-existent in
such instances as the repair of sea banks or the furtherance of
scientific research, which would fall outside the popular idea of
charity. It might thus be said that some charitable purposes, in the
sense adopted by English law, are not benevolent, and conversely
that some benevolent acts are not charitable. Lord Bramwell, dis-
senting in Pemsel’s case (supra), gave as instances of purposes
which he regarded as benevolent but not charitable in the legal
sense, a fund for providing oysters at one of the Inns of Court or
a trust to provide music on the village green. As to the latter,
modern ideas would be disposed to treat the gift as both benevolent
arid charitable, as it would a fund for the provision of music in a
London park: the fund for the oysters I should not be disposed to
regard as either benevolent or charitable in any ordinary or
36364 A4
5 [8]
technical sense. The leading case, Morice v, Bishop of Durham,
10 Ves. 522, is relied on as showing that the word benevolent ,
used by itself or coupled as it was in that case with “liberal” , is
insufficient to evince a charitable purpose. Lord Eldon put the
question whether, according to the ordinary sense, this testatrix
meant by these words to confine the Defendant to such acts of
charity or charitable purposes as this Court would have enforced
by decree and reference to a Master. He decided in the negative
and held that the intention was too indefinite to create a trust.
There the words were not bound up with words or a context show-
ing a charitable intention, but, on the contrary, showed the opposite.
Lord Eldon said that upon such words the Court could not have
charged the executor with maladministration if he had applied
the whole to purposes which, according to the meaning of the
testator, were benevolent and liberal, though not acts of that species
of benevolence and liberality which this Court in the construction
of a will calls charitable acts. Lord Eldon said that there was
no magic in words, and if the real meaning of the words used had
been charity or charitable purposes according to its technical use
in the Court, the appropriate consequences would follow. This
qualification should be noted.
It may be that the word ” liberal” gave a special colour to the
word ” benevolent “, and took its scope outside charitable purposes.
It might, for instance, have covered the case of the fund for pro-
viding oysters or other lavish entertainment. But in James v.
Allen, 3 Mer. 17, the bequest was simply for benevolent purposes,
at the discretion of the trustees. The Master of the Rolls was of
opinion that the trust might have been applied to other than strictly
charitable purposes and was too indefinite for the Court to execute
and failed altogether. This was the decision where the word
” benevolent” stood by itself without any context showing or ex-
cluding a charitable intent. But later cases have shown that the word
” benevolent” is not fatal to a finding of a charitable trust. It
becomes a question of the construction of the particular will,
whether its language sufficiently evinces a charitable trust. As Lord
Cottenham L.C. said in Ellis v. Selby, i My. & Cr. 286, ” the present,
“like other cases of construction, depends upon the particular
” language which the testator has used, and very slight expressions
” may make a most material difference “. He held in that case
that the expressions ” to and for such charitable or other purposes ”
were too wide and held the bequest void. He said he was following
an earlier decision of his own, when Master of the Rolls, in Williams
v. Kershaw, 5 Cl. & F. hi, where the residue was to be applied ” to
” and for such benevolent, charitable and religious purposes ” as
the executors should think most advantageous and beneficial. He
read the three purposes as not conjointly used, but as describing
three classes, benevolent, or charitable or religious. The two latter
purposes would also be charitable in the legal sense, but that was not
the case with benevolent. He held the disposition too uncertain to
receive effect. It is to be noted there that he read ” and ” as ” or “,
and as having the same effect as ” or ” in the previous case. In
each of these cases separate categories were held to be intended;
thus according to the decisions ” and ” and ” or ” were held to b«
interchangeable. That depended on the context and the lay-out of
the sentences.
In Dolan v. Macdermot, L.R., 3 Ch. 676, Lord Cairns L.C. held
valid a bequest of personalty for ” such charities and other public
purposes as lawfully might be ” in a named parish. The Lord
Chancellor said that the reasonable and fair construction of the
will— remembering always that in construing a will of this kind
“ the Court must not lean to the side of avoiding the will in order to
“ gam money for the family, nor, on the other hand, strain to
” support the will to gain money for the charity “—was
[9] 6
that the testator directed his residue ” to be paid out for
” the benefit of the Parish of Tadmartin’ in public charities’, using
” the term in the popular sense, and in ‘ other public purposes’
” ejusdem generis, using those latter words as supplying and filling
” up a description of the purposes which, although within the
” Statute of Elizabeth and the technical doctrine of the Court with
” regard to charities, are not within the popular meaning of the
” word ‘ charities’ “. I regard this decision as an object lesson in
realistic construction. The local limitation does not, of course, affect
the essential question. (Houston v. Burns, 1918, A.C. 337.) That last-
named case was an appeal from Scotland, where it was held that
a bequest ” for such public, benevolent or charitable purposes ”
was invalid, on the ground that the three categories were to be read
disjunctively. This decision was largely determined by considering
the punctuation. It had been contended that the clause should
not be read as applying to public or benevolent or charitable pur-
poses, but that on its true reading it was for the benefit of benevo-
lent or charitable purposes of a public nature in connection with
the parish, and that so construed it was good, as benevolent or
charitable purposes could be held to be charitable purposes. As
to that contention, Lord Finlay L.C. said: ” It appears to me that
” without the punctuation which appears in the will as printed in the
“appendix this is quite a possible construction, and where words are
” ambiguous a construction should be adopted which will not make
” the bequest void.” Lord Finlay then went on to discuss the punctua-
tion, and on that ground held that the clause was to be read dis-
junctively. Though the appeal was from Scotland, the Lord Chan-
cellor states a general principle which seems often to be lost sight
of, namely, the principle that the issue depends on the construction
of the particular will. In addition the word ” public ” introduces
a category different in character from either charitable or benevo-
lent (Blair v. Duncan, 1902, A.C. 37), which makes it much more
difficult in any case to read the words as dealing with anything but
separate categories. In the same way this House in A.G. v. National
Provincial Bank, 1924, A.C. 262, held that the words ” patriotic ”
purposes and ” charitable ” institutions and objects must be read
disjunctively; they describe disparate and separate classes. On the
other hand, in in re White, 1893, 2 Ch. 41, the testator left his
residue “to the following religious Societies, viz.”: there followed
a blank. The word charity was not mentioned. The Court of
Appeal, while recognising the possibility that a religious Society
was not necessarily charitable, came to the conclusion that they
could not, ” without splitting hairs “, distinguish earlier cases which
had held that a religious purpose was a charitable purpose, and
that they ought to hold that the gift was for charitable purposes
and was not void for uncertainty. They approved Wilkinson v.
Lindgren, L.R., 5 Ch. 570, which may be referred to for the use
which Lord Hatherley L.C. made of the ejusdem generis rule. The
bequest was for the benefit of certain named institutions, which the
Court held were in fact religious, or ” to any other religious institu-
” tions ” as the executors might think proper. The Lord Chancellor
said that he did not see ” how you can carry on the word ‘ other’
” without carrying on ‘ religious ‘ also “. The gift was held valid.
I have referred to these cases as showing that the construction
of a will cannot be reduced to the mere application of a fixed
general formula. I think this is also illustrated by A.G. for New
Zealand v. Brown, 1917, A.C. 393, a decision of the Privy Council,
which showed that ” and ” could and should there be read as ” or “.
The bequest was in trust for such charitable, benevolent, religious
and educational institutions ” as the trustees should select”. It was
contended that the word “charitable” governed or at least ex-
plained the following words, so that “benevolent” objects must
be read as though the words meant such benevolent objects as
were in their nature the proper subject of a charitable gift. Lord
7 [10]
Buckmaster rejected this contention, but he did not do so without
examining other parts of the will, particularly the investment
clause, in order to ascertain the testator’s intention. The import-
ance of the decision, which does not bind this House, is that though
the decision in in re Jarman’s Estate, 8 Ch.D. 584, to which I refer
later, was cited, the question was not solved by a single absolute
formula, such as Lord Parker (who was a member of the Board
in the New Zealand case (supra)), enunciated shortly afterwards
in the form of the proposition that a gift for charitable or benevo-
lent purposes is void for uncertainty. Bowman v. Secular Society,
1917, A.C. 406, at p. 441. This would no doubt be so provided that
on the true construction of the gift the purposes were to be read
disjunctively. That must depend on the language of the gift. But
the point had not been argued and was not necessary for the
decision of that case. Such general observations have no coercive
value as precedents.
In re Jarman (supra) may or may not have been right in the
language of the particular gift. The Vice-Chancellor there held
that a bequest to any charitable or benevolent purpose which the
executors should agree upon was indefinite and inoperative, so that
the gift failed. But it cannot, in my opinion, be construed as
stating a general proposition of law that a gift for charitable or
benevolent objects must be alternative or refer to two classes of
objects. If it did, it cannot, in my opinion, be justified. Since
that decision the cases of in re Sutton, 28 Ch.D. 464, and in re
Best, 1904, 2 Ch. 354, have been decided. Their effect was that
a gift for such charitable and benevolent institutions as the trustees
should determine is not void for uncertainty, but is a good charit-
able gift. It was held that the testator meant that the objects of
the gift should be both charitable and benevolent. That is a natural
construction, because not only are the two words, being both vague,
practically indistinguishable, though perhaps in theory capable of
some distinction, but, as Farwell J. said in in re Best (supra), the
testator may have wished that the two qualities should coincide
in all the objects of the gift. Hence only one class is intended,
combining both attributes. I think the same conclusion can be
reached where the two adjectives are coupled by ” or ” instead of
” and “. These two particles are often to be read interchangeably
as I have shown. The testator in the present case is not likely to
have thought of charitable and benevolent as describing two
different classes of objects. He would prima facie mean a class of
object which could be indifferently described as charitable or
benevolent, that is, one class having the same two-fold character-
istics, if indeed he thought of them as more than two epithets having
the same meaning. Such tautology is not uncommon. Perhaps also
he may have desired that his money should not be devoted to build-
ing bridges or the like. This construction, which seems prima facie
not only probable but sensible, is. I think, confirmed by the frame of
the sentence. The word ” other ” (” other charitable or benevolent
” object or objects in England “) seems to me to carry over the word
charitable from the previous sentence. If the words had been ” or
” other benevolent objects “, I do not think that anyone would
seriously contest that what was meant was ” other charitable objects
” capable also of being characterised as benevolent “. The repetition
of “charitable ” strengthens that construction. So does the context.
If ” charitable ” and ” benevolent ” had been completely different
descriptions, instead of two descriptions, both vague and indeter-
minate, overlapping, and capable of being applied to the same
objects, the result might be different. Thus a gift of pigs or cows
would clearly present an alternative: the two descriptions could
not be applied indifferently to the same animals. But a dis-
position in favour of dishonest or unprincipled men would not
present a true alternative, though it might on other grounds be
[11] 8
void for uncertainty. Only the adjectival description is alternative,
and both adjectives are to be applied indifferently to the same
objects; there is then only one class and not two. If the testator
had expressly stated that only one class was meant, that statement
would have received effect. But the same result may be reached
by considering the context. This way of looking at the question has
been adopted by the eminent Scotch judges, Lords Dunedin,
Kinnear, Maclaren and Dundas, who have held that certain dis-
positions in favour of charitable or benevolent objects or the like
referred as a matter of construction to one class and not two classes.
I refer in particular to the decisions in Hay’s Trustees v. Baillie,
1908, S.C. 1224, and Paterson’s Trustees v. Paterson, 1909, S.C.
485. The Scots Law has not been argued before your Lordships,
but I think that these decisions involve the application of rules
of construction common both to English and Scottish law.
For myself, I would allow the appeal and restore the judgment
of Farwell J.
[I2
CH1CHESTER DIOCESAN FUND AND BOARD OF
FINANCE (INCORPORATED)
v.
SIMPSON AND OTHERS
Lord Porter
Lord
Chancellor
Lord
Macmillan
Lord
Wright
Lord
Porter
Lord
Simonds
MY LORDS,
It is common ground and undoubted law that in construing a will
the object of the Court is to try to ascertain the intention of the
testator. But it is the expressed intention which must govern. The
principle is succinctly expressed by Lindley, L.J., as he then was,
in re Morgan [1893] 3 Ch. 222 at p. 227: ” Now I do not see why,
” if we can tell what a man intends and can give effect to his inten-
” tion as expressed, we should be driven out of it by other cases or
” decisions in other cases “; the italics are mine.
In construing what the testator has said it is permissible to con-
sider that he did not intend to die intestate; see per Lord St.
Leonards in Grey v. Pearson 6 h.l.c. 99.
But technical words must be interpreted in their technical sense
and ” charity ” or ” charitable ” are technical words in English
law, and must be so construed unless it can be seen from the word-
ing of the will as a whole that they are used in some other than
their technical sense. For this purpose and in order to discover the
testator’s intention it is the duty of the Court to take into considera-
tion the whole of the terms of the will and not to confine itself to
the disputed words or their immediate context.
In the present case the words whose interpretation is contested
are ” charitable or benevolent”. It is admitted on behalf of the
Appellants that if the word ” benevolent” stood alone, it would
be too vague a term and the gift would be void; see James v. Allen
[1817] 3 Mer 17; but it is said that when coupled with the word
” charitable “, even by the disjunctive ” or”, it either takes its
colour from its associate or is merely exegetical, and the phrase is
used as implying either that ” charitable ” and ” benevolent ” are
the same thing or that ” benevolent ” qualifies ” charitable ” so as
to limit the gift to objects which are both charitable and benevolent.
In my view the words so coupled dp not naturally bear any of
the meanings suggested. The addition of “benevolent” to
” charitable ” on the face of it suggests an alternative purpose, and
I do not see why in this collocation ” benevolent” should be read
as ” charitable benevolent”. Nor do I think that it can be said to
be merely exegetical. Primd facie these are alternative objects, and
even if they were not the word ” charitable “, to be exegetical of
” benevolent”, should follow and not precede it. The wording
should be ” benevolent or charitable ” meaning ” benevolent i.e.
” charitable “—not ” charitable or benevolent ” meaning ” charit-
” able i.e. benevolent”. In the latter case the gift might still be
said to be given to too wide a class, viz. to benevolent objects and
not to charitable ones.
But in truth, however anxious one may be to strain the language
used so as to benefit charities only, the weight of authority is too
great to be readily overthrown.
Two matters of principle in the interpretation of wills are firmly
established:
(1) The testator must make his own will and not leave his
executors to make their choice of the objects of his bounty, subject
to this, that a general gift to charity will be upheld. (2) It is not,
[13] 2
however, enough that he should leave property under a disposition
in pursuance of which his assets may be disposed of to charities or
for some other purpose, not even though his executors in fact
apply them only to charitable purposes. ‘ The question is “, said
Sir W. Grant in James v. Allen 3 Mer. 17 at p. 19, ” what authority
” would this Court have to say that the property must not be
” applied to purposes however benevolent unless they also come
” within the technical denomination of charitable purposes ? If it
” might, consistently with the will, be applied to other than strictly
” charitable purposes, the trust is too indefinite for the Court to
” execute “.
The same principle is enunciated in Hunter v. A.G. [1899]
A.C. 309 where Lord Davey at p. 323, in saying that the charitable
purposes must not be mixed up with other purposes of such an
indefinite nature that the Court cannot execute them, gives as
illustrations of such mixing the conjunction of ” charitable or
” benevolent”, or ” charitable or philanthropic “, or ” charitable or
” pious “
The various tribunals in England which have expressed their
views as to this combination have all tended the same way.
So long ago as 1836 Lord Cottenham L.C. expressed the opinion
in Ellis v. Selby I My. and Cr. 286 at p. 299 that a gift to ” charit-
” able or other purposes ” was void.
Similar opinions are to be found in Attorney-General for New
Zealand v. Brown [1917] AC 393, in Houston v. Burns [1918]
A.C. 337, and A.G. for New Zealand v. New Zealand Insurance
Coy. [1936] 53 T.L.R. 37, to quote but three from amongst those
discussed in your Lordships’ House or in the Privy Council.
Indeed, in Williams v. Kershaw 5 Cl. and F. in, a bequest of
property for benevolent charitable and religious purposes was held
void because it was considered that the testator could not have
intended the recipient purposes to be benevolent and charitable
and religious all at the same time, and therefore that ” and ” must
be read disjunctively. I need not refer to the numerous cases
decided in Courts of first instance and in the Court of Appeal ex-
pressing a view similar to that contained in those quoted.
If the authorities be extended beyond those decided in a final
Court of Appeal, the exact combination ” charitable or benevolent ”
is to be found and was held void in re Jarman’s Estate, 8 Ch. D.
584-
Nor is the force of these and the many other authorities to the
same effect weakened by the fact that a bequest for benevolent
and charitable purposes has been held a valid gift (see re Best
[1904] 2 Ch. 354), since the conjunction in that case is effected
by using “and”, not “or”. Nor by the decisions in Attorney-
General for New Zealand v. Brown [1917] AC 393, where the
wording was ” charitable, benevolent, religious and educational in-
” stitutions, societies, associations and objects “, and in re Bennett
[1920] 1 Ch. 305, where the wording was ” for the benefit of the
” schools, and charitable institutions, and poor, and other objects
” of charity, or any other public objects “. In each of these last
two cases it was held the complex phrases used must properly be
construed so that ” benevolent” or ” public “, as the case might be,
took its colour from ” charitable ” and must be read as ejusdem
generis with it. In so complex a form of words the ejusdem generis
rule might well be prayed in aid, whereas in a simpler form it might
be inapplicable.
But in truth the terms in which other wills are framed are but
a loose guide to the construction of that in question. Each will
must be interpreted in the light of its own wording.
3 [14]
No doubt the testator in the present case wished his estates to
go to objects of a benevolent character or, as Goddard L.J. has it,
to ” charity ” in the popular sense; but ” charity ” in that sense is
not coterminous with “charity” in the technical sense, and I can
find nothing in the wording of the will to lead to a different result.
The fact that in another clause of this will he gave certain specific
legacies leads nowhere, and a gift in the case of institutions limited
to charitable ones, followed by a gift to ” other charitable or
” benevolent objects “, to my mind suggest a widening of his bene-
ficence in the latter case rather than a general charitable intent, if
” charity ” be used in its technical sense.
The Appellants, however, gain their strongest support from the
Scotch decisions. In those cases ” societies or institutions of a
” benevolent or charitable nature ” (Hay’s Trustees v. Baillie 1908
S.C. 1224), ” such charities or benevolent or beneficent institutions ”
(Paterson’s Trustees v. Paterson 1909 S.C. 485), and ” charitable or
” philanthropic institutions ” (MacKinnon’s Trustees v. MacKinnon
1909 S.C. 1041), have all been held valid charitable trusts, whilst
in Reid’s Trustees 1929 S.C. 727, a bequest in the form ” poor
” persons in Eskdale or such charitable, educational, or benevolent
” societies or public institutions in Scotland ” failed only, it appears,
because of the addition of ” public institutions “.
In all the cases where the gift was held good, the ratio decidendi
appears to have been that the testator was designating one class of
recipients, i.e. charities, not two or more separate classes of
beneficiary.
But Scotch law differs from English law on this point, probably
because it approaches the subject from a different angle. In the
first place the statute of Elizabeth, 43 Eliz. C. 4, the benevolently
interpreted preamble of which forms the basis for determining
what are charities in English law, never applied to Scotland, and
in the second, charities, speaking generally, are not controlled by
the Scots Courts.
The ambit of ” charity ” in Scotland may be narrower than it
is in England; at any rate Lord Moncreiff thought so, as appears
from his dissenting Judgment in Grimond v. Grimond, reported
in [1905] A.C., at p. 605, and afterwards approved in your Lord-
ships’ House at p. 124 of the same volume. Whether it be narrower
or not it differs, and I do not think your Lordships can obtain
any satisfactory guidance from the decisions in the Scotch Courts
in a case where the validity of a gift in an English will depends
upon its charitable nature.
I find myself in accord with the Judgment of the Master of the
Rolls and agree that the appeal should be dismissed.
Lord
Chancellor
Lord
Macmillan
Lord
Wright
Lord
Porter
Lord
Simonds
[15]
CHICHESIER DIOCESAN FUND AND BOARD OF
FINANCE (INCORPORATED)
v.
SIMPSON AND OTHERS
Lord Simonds
MY LORDS,
The question raised in this appeal turns upon the meaning and
effect of the will of Caleb Diplock, who died on the 2nd March,
1938. By his will, which was dated the 3rd November, 1919, the
Testator, after appointing executors and making certain bequests
and devises, to which I do not think it necessary to refer, gave
the residue of his estate to his executors upon trust for sale and
conversion, and subject to certain payments thereout, directed them
to apply the residue ” for such charitable institution or institutions
” or other charitable or benevolent object or objects in England
” as my acting executor or executors may in their or his absolute
“discretion select, and to be paid to or for such institutions and
” objects, if more than one, in such proportions as my executors
” or executor may think proper”. The Testator added certain
administrative directions which do not assist in the construction of
the words that I have cited.
The will was duly proved on the 16th May, 1938, and the
executors forthwith proceeded to a distribution of the Testator’s
large estate among a number of institutions, one of which was the
Appellant, the Chichester Diocesan Fund and Board of Finance
(Incorporated). After the estate had been distributed the validity
of the residuary bequest and the propriety of the distribution were
challenged by certain persons who claimed to be some of the next-
of-kin of the Testator and accordingly to be entitled to a share of
his residuary estate as upon his intestacy. On the 10th June,
1940, the Originating Summons, out of which this appeal arises,
was issued by the executors in the Chancery Division for the deter-
mination of the single question whether the trust of residue con-
tained in the will, which I have already stated, was a valid charit-
able trust or was void for uncertainty or otherwise. To this summons
the appellant institution, the claimant next-of-kin and the Attorney-
General were made defendants. My Lords, I mention these facts not
because they can in any way affect the construction of the will
which your Lordships have to construe, but because they explain
why it was necessary, or at least desirable, that any other party
than the Attorney-General should be heard to argue the present
case. In the ordinary case it is the Attorney-General alone,
representing the Crown as parens patriae, who is heard upon
the question of validity or invalidity of such a bequest as
that now under consideration. In the present case the
actual distribution of the Testator’s estate and the pendency
of proceedings by the next-of-kin for its recovery, in which this
very question of validity would be vital, made it necessary to take
the unusual course of adding the appellant institution as a
defendant as representative of all the institutions which had received
a share of the estate. But this fact is, as I have said, irrelevant to
the construction of the will: equally irrelevant are the facts which
are brought to your Lordships attention that the estate is a large
one, that the next-of-kin are not near relatives, that the discovery
of a possible flaw in the will was fortuitous, and that the proceedings
were belated. The construction of this will is the same, whether
its invalidity brings an unexpected windfall to distant relations or
its validity disappoints the reasonable hopes of a dependent family.
2 [16]
My Lords, in stating the question for your Lordships’ considera-
tion I have said that it turns upon the meaning and effect of the
Testator’s will. Advisedly I have put meaning before effect, For
I approach this will, as I approach any other will, with the resolve
to find the Testator’s intention from the language that he has used.
When I have found it, I consider its effect. If there is an ambiguity,
it may be that I am at liberty to choose that construction which
will give legal effect to the instrument rather than that which will
invalidate it. Where the Testator’s words would, if no question of
invalidity arose, leave no doubt in my mind, I am not at liberty to
create an ambiguity in order then to place what is sometimes called
a benignant construction upon the will.
My Lords, the words for your consideration are these, ” charit-
” able or benevolent”: the question is whether, in the context in
which they are found in this will, these words give to the executors
a choice of objects extending beyond that which the law recognises
as charitable. If they do not, that is the end of the matter: the
trust is a good charitable trust. If they do, it appears to be con-
ceded by counsel for the appellant institution that the trust is
invalid, but in deference to the argument of the Attorney-General,
who invited your Lordships to take a different view, I must say a
few words at a later stage.
My Lords, of those three words your Lordships will have no
doubt what the first, ” charitable “, means. It is a term of art with
a technical meaning and that is the meaning which the Testator
must be assumed to have intended. If it were not so, if in this will
” charitable ” were to be given not its legal but some popular mean-
ing, it would not be possible to establish the validity of the bequest.
The last of the three words ” benevolent” is not a term of art:
in its ordinary meaning it has a range in some respects far less
wide than legal charity, in others somewhat wider. It is at least clear
that the two words, the one here used in its technical meaning,
the other having only, and accordingly here used in, a popular
meaning, are by no means coterminous. These two words are joined
or separated by the word ” or “, a particle, of which the primary
function is to co-ordinate two or more words between which there
is an alternative. It is, I think, the only word in our language apt
to have this effect: its primary and ordinary meaning is the same,
whether or not the first alternative is preceded by the word
“either”.
My Lords, averting my mind from the possible ill effects of an
alternative choice between objects ” charitable ” and objects ” bene-
” volent”, I cannot doubt that the plain meaning of the Testator’s
words is that he has given this choice and that, if he intended to
give it, he could have used no words more apt to do so. Is there
then anything in the context which narrows the area of choice
by giving to the words ” or benevolent” some other meaning than
that which they primarily and naturally have ? And, if so, what
is the other meaning which is to be given to them ? Let me examine
the second question first. Since the test of validity depends on the
area of choice not being extended beyond the bounds of legal
charity, a meaning must be given to the words ” or benevolent”
which retains them within these bounds. This result, it has been
contended, may be reached by giving to the word ” or ” not its
primary disjunctive meaning but a secondary meaning which may
perhaps be called exegetical or explanatory. Undoubtedly ” or ”
is capable of this meaning: so used, it is equivalent to ” alias ” or
” otherwise called ” : the dictionary examples of this use will
generally be; found to be topographical, as “Papua or New
Guinea . But, my Lords, this use of the word ” or ” is only pos-
sible if the words or phrases which it joins connote the same thing
and are interchangeable the one with the other. In this case the
Testator is assumed to use the word ” charitable ” in its legal sense :
[17] 3
I see no possible ground for supposing that he proceeds to explain
it by another word which has another meaning and by no means
can have that meaning. I must reject the exegetical ‘ or “. Then
it was suggested that the words ” or benevolent” should be con-
strued as equivalent to ” provided such objects are also of a bene-
” volent character “, that is to say, the objects must be charitable
but of that order of charity which is commonly called benevolent.
I think that this is only a roundabout way of saying that ” or’
should be read as ” and “, that the objects of choice must have
the two characteristics of charitable and benevolent. It is possible
that a context may justify so drastic a change as that involved
in reading the disjunctive as conjunctive. I turn then to the con-
text to see what justification it affords for reading the relevant
words in any but their natural meaning. Reading and re-reading
them, as your Lordships have so often done in the course of this
case, I can find nothing which justifies such a departure. It is true
that the word ” other ” introduces the phrase ” charitable or bene-
” volent object or objects ” and to this the Appellants attached some
importance, suggesting that since ” other ” looked back to ” charit-
” able institution or institutions “, so all that followed must be of the
genus charitable. There can be no substance in this, for in the
phrase so introduced the word ” charitable ” is itself repeated and
is followed by the alternative ” or benevolent”. Apart from this
slender point it seemed that the Appellants relied upon what is
called a general, a dominant, an over-riding charitable intention,
giving charitable content to a word or phrase which might other-
wise not have that quality. That such a result is possible there
are cases in the books to show: some of them have been cited to
your Lordships. But here again I look in vain for any such con-
text. Upon the plain reading of this will I could only come to the
conclusion that the Testator intended exclusively to benefit charit-
able objects if I excised the words ” or benevolent” which he
has used. That I cannot do.
Coming to the conclusion that upon the true construction of this
will the executors may if they think fit distribute the Testator’s
estate among objects which are benevolent but not charitable,
I then ask what is in law the effect of such a disposition. My Lords,
it may not have come as so rude a shock to some of your Lordships
as it did to me to hear it suggested that there could be any doubt but
that it is utterly invalid. But in fact the learned Attorney-General, if
I understood his argument, categorically invited your Lordships to
hold that a bequest for charitable or benevolent objects simpliciter
is in English law a good and effective bequest, and urged
that the case of re Jar-man which decided the contrary should
be over-ruled. In other words, his contention was that to enlarge
the executors’ area of choice so as to include benevolent objects
which are not charitable with objects which are charitable does
not make the whole gift fail for uncertainty. I do not see how,
if his proposition is a sound one, it could be limited to the intro-
duction of benevolent objects: philanthropic objects, liberal
objects, perhaps patriotic or public objects, must come within the
scope of this new doctrine. Nor, if a gift for charitable or bene-
volent objects is valid, could it be any longer contended with any
show of logic that a gift for benevolent objects alone is invalid.
My Lords, I suggest that this proposition runs counter to authority
and principle. Were it necessary to examine the authorities, your
Lordships would find that a more formidable task than the over-
ruling of re Jarman lay before you. I say nothing of a chain
of cases which goes back to Sir William Grant and Lord Eldon.
who themselves rested on ancient precedent, see Morice v. Bishop
of Durham, 10 Ves. 522. I refer only to the fact that in recent times
Lord Davey in Hunter v. A.G. (1899) A.C. 309, and Lord Parker
in Bowman v. Secular Society (1907) A.C. 406, have selected such
words as ” charitable or benevolent ” as the very type of gift which
4 [18]
fails by reason of the admixture of charitable with non-charitable
objects. There is good reason why this should be so. It is a
cardinal rule, common to English and to Scots law, that a man
may not delegate his testamentary power: to him the law gives
the right to dispose of his estate in favour of ascertained or ascer-
tainable persons. He does not exercise that right if in effect he
empowers his executors to say what persons or objects are to be
his beneficiaries. To this salutary rule there is a single exception:
a testator may validly leave it to his executors to determine what
charitable objects shall benefit, so long as charitable and no other
objects may benefit. To explain or to justify this exception is
unnecessary. It conveniently and securely rests to-day upon the
theory that a charitable trust can be executed by the Court, but
a so-called benevolent trust cannot. For the Court knows what is
charitable by reference to the preamble to the Statute of Eliza-
beth, to the objects there enumerated and all others which ” by
” analogies are deemed within its spirit and intendment “, but what
is benevolent the Court knows not. It is possible that the exception
was originally established on some broader ground of favour to
charity. But into this I need not enter. It is sufficient to say that,
this exception in favour of charity having been long established,
there is no ground for extending it in favour of objects which are
not charitable.
My Lords, I concur in the motion that the Appeal should be
dismissed.
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