Re Endacott [1959] EWCA Civ 5 (12 October 1959)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL

Royal Courts of Justice,
12th October 1959

B e f o r e :

THE MASTER OF THE ROLLS (Lord Evershed), LORD JUSTICE SELLERS and LORD JUSTICE HARMAN.
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Between:

re ENDACOTT, dec
CORPE
 
-v-
 
ENDACOTT and Others.
 

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Transcript of the Shorthand Notes of the Association of Official Shorthandwriters, Ltd. Room 392, Royal Courts of Justice, and 2, New Square, Lincoln’s Inn, W.C.2.)

____________________Mr J.L. ARNOLD, Q.C. and Mr C.A. SETTLE (instructed by Messrs Biddle, Thorne, Welsford & Barnes, Agents for Messrs G.D. Cann & Hallett, Exeter) appeared on behalf of the Appellants (Third Defendants), North Tawton Parish Council.
Mr B.S. TATHAM (instructed by Messrs Peacock & Goddard) appeared on behalf of the Respondent Plaintiff.
Mr MICHAEL ALBERT, Q.C. and Mr OLIVER LODGE (instructed by Messrs Peacock & Goddard) appeared oh behalf 57 the Respondents (First and Second Defendants) Annie Endacott and James William Endacott.
The Hon. DENYS B. BUCKLEY (instructed by the Treasury Solicitor) appeared on behalf of the Respondent (Fourth Defendant) Her Majesty’s Attorney-General.

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THE MASTER OF THE ROLLS: By his will dated the 2nd January, 1952, the testator, Mr Albert George Endacott, who died in June 1958, first of all made an appointment of a firm of solicitors as executors and then gave to his son certain buildings and premises comprising a factory, subject to a mortgage, together with certain chattels. He concluded his will by the following residuary gift:

“Everything else I leave to North Tawton Devon Parish Council for the purpose of providing some useful memorial to myself, subject to the proviso that if my wife outlives me they must during the lifetime of my wife pay to my wife the interest which may accrue on the capital when properly invested by them”.

The question before the Court has been whether that residuary gift to the North Tawton Parish Council can take effect. Mr Justice Danckwerts answered that question negatively. He concluded his Judgment, according to the short note of it:

“It is argued that the words ‘for the purpose of providing some useful memorial to myself’ are ‘limiting words’. I think they are very wide words which may well include non-charitable purposes. The nature of the trustee would limit those wider purposes if the parish council’s argument prevailed. I declare that the gift fails for uncertainty”.

That short statement comprehends the various arguments that have been put forward, and the conclusion (let me say at once) is one with which I, for my part, entirely agree.

Mr Arnold, for the parish council, has put his case on two broad distinct grounds. He has first said that the words “for the purpose of providing some useful memorial to myself” merely indicated the reason why the testator had made this gift, but did not, and were not intended to, impose any obligation upon the parish council, with the result that the gift should be treated as a gift out and out to the parish council.

Alternatively, Mr Arnold has argued on the footing that the words (contrary to his first contention) do impose a trust or obligation of some kind, though it is to be noted that it has not been suggested that such a trust would offend the rule against perpetuities. But on this alternative basis the argument has diverged thus: First, if the trust be not (upon its true interpretation) a charitable trust, still it is said to be of a public nature and valid and effective, on the ground that it falls within a class of cases which have been referred to as “anomalous” and which were recited by Mr Justice Roxburgh conveniently in his recent decision in the case of Astor’s Settlement Trusts, reported in 1952 1 Chancery at page 534. The contention is that this case, falling within that so-called anomalous class, must be treated as effective, being (as I have said) of a public character and being also such that, by appropriate machinery, it can be properly controlled by the Court. It may perhaps be added that, since the gift was one of residue, then if the gift fails, an intestacy follows; and it is, of course, a fair comment to make that in a case of any kind where intestacy follows a particular result, the Court will at any rate think carefully before arriving at such a conclusion.

Then, alternatively, it is said the trusts are in truth charitable, and the argument on this alternative again diverges. First of all it has been submitted that a parish council (and, of course, this particular parish council) is, according to its statutory constitution, limited, at any rate quoad any gifts of this kind which it receives, to charitable functions and activities. If that is right, then it is said that the gift to such a body stamps (and, if necessary, qualifies) the nature of the trusts which are declared and that they should accordingly be taken as being and intended to be within the scope of the (charitable) statutory activities or powers. Secondly (and this was a point particularly put to us by Mr Buckley for the Attorney-General) it is said that, whether the parish council be or be not a body confined in activity to charitable purposes, the true view of the meaning of these vital words “for the purpose of providing some useful memorial to myself” is that they are, as a matter of language, equivalent to a trust for the benefit of the local inhabitants of North Tawton Parish and therefore, according to authority, charitable.

Those, broadly, are the contentions; and I will deal at once and briefly with the first point, namely: Was the language which I have quoted intended to impose an obligation, or was it merely expository? That matter I can deal with briefly because it is, after all, a matter of mere construction. It will therefore be convenient if I state at once what my view is of the meaning of these words, which once more I repeat, “for the purpose of providing some useful memorial to myself”: and I say, like Mr Justice Danckwerts, that I do not think that these words were merely expository. In my judgment, they were intended to impose an obligation in the nature of a trust. Although I am anticipating what I shall say about Mr Buckley’s argument hereafter, I will at once state that, in my judgment, the object of these words, the trust, the obligation, which the testator intended them to impose was this: that the council were, with his money (and subject, of course, to the obligation about the widow) to create a memorial to himself. I think that his first idea was (and I am not saying that it was either foolish or ignoble) that there should thereafter be in North Tawton, Devon, a memorial to himself; but that the memorial was to have this quality, that it was to be useful; and that I take to mean that it was intended that it should have the quality of utility rather than ornament. Though I do not think aesthetic or ornamental considerations were excluded, still (as I have said) I think his purpose was that the memorial, whatever form it took and whether material or not, should be useful; and, by way again of anticipation of my answer to Mr Buckley, I cannot see that it was necessarily to be useful only to the inhabitants of North Tawton, Devonshire.

I have stated my view of the construction and that view, of course, answers the first point. It follows that this was not a gift out and out to the North Tawton Parish Council, but I think and hope that my view of the intention of those words also carries with it the answer to many of the other points that have arisen. I go further and say that in the end of all, as I think, this case should be decided on the grounds that (as I understand) Mr Justice Danckwerts decided it, namely, that here was a specific obligation sought to be imposed, specific in this sense, that it was to be for the purpose of providing a memorial for this testator having the quality of utility, something obviously that could not be confined to charitable purposes, but no doubt having the quality also that it served a public purpose of some kind. I think that that view of the words does carry with it the result, with all respect to the learning which has been put before us, that to hold it valid would be for this Court to go beyond (and appreciably beyond) the tenor of the decided cases on these difficult subjects.

I come then to Mr Arnold’s alternative ground; and it is plain that once you get involved in the considerations which have been put before us, you are in much more troubled waters than In dealing with the first point which I have disposed of. Mr Arnold has quite rightly drawn our attention to much learning in the form of case law that has grown up round these somewhat involved questions. All those who practise in this branch of the law know how infinite is the variety of the decided cases, how extreme sometimes are the refinements, and how apparent on occasions the contradictions which those cases demonstrate; and that is certainly not the least true about those cases dealing with the law of charity. But I wish to acknowledge my indebtedness to Mr Arnold for putting these matters before us as a premise perhaps to my statement that I do not propose in this Judgment, by my reference to cases or indeed otherwise, to add to the future burden of citation. I am able I think fairly to say that and without, I hope, shirking any judicial duty, because, in the end of all and on the view I take, the real question in this case does depend upon the meaning of the words this testator has used according to their ordinary sense, a meaning which I have already tried to state.

It is convenient and perhaps logical to take first the point that the parish council being, it is said, confined to charitable activities so far as is relevant, then this gift must take its character by reflection of that fact. I am unable to accept that argument. The cases, of which re Rumball (1956 1 Chancery, 105, in this Court) is I think the most recent, illustrate at any rate this proposition, that gifts to persons holding a particular office, and particularly an ecclesiastical office, if they are not to be treated as gifts to the holder of that office in his personal capacity, are taken to be gifts to be applied for the purposes for which the office is held. The vicar or the cardinal archbishop (to take references from two cases) receives the gift and disposes of it (as it is said) virtute officii, and the nature of the officium is such that the duties, the trusts, must be ecclesiastical and therefore charitable. If that is accepted, then general words which follow may be regarded either as merely emphasising the fact that the gift is to the ecclesiastical officer virtute officii or possibly not only to do that but also to limit to some extent the scope of his possible disposition, within the scope of his office, of those funds. No decided case, so far as we are aware, has applied that principle to such a body as a parish council. If it were shown perfectly clearly that every activity of a parish council, at any rate so far as gifts were concerned, must be of a charitable character, it might follow that a similar reasoning would apply; but I am not satisfied that it is true to say of a parish council that it is confined in its activities to charitable activities or that it is so confined as regards any gifts it may receive. I do not forget the argument that you might give something to a vicar not personally but having attached to it an obligation to apply it for purposes which were outside his ecclesiastical duties, but I cannot find in this case any true analogy to that kind of illustration. There is here a gift to this parish council for the purpose which I have stated, and the relevance of the matter must be (the purpose being a very wide one and not on the face of it charitable) – Is the nature of a parish council’s activities so clearly defined as being of a charitable character as to impose an essential limitation on the words which I have already tried to construe?

We were referred to Section 268 of the Local Government Act of 1933. That deals with acceptance of gifts by local authorities and (so far as relevant) provides:

“Subject to the provisions of this section, a local authority may accept, hold and administer any gift … for any local public purpose, or for the benefit of the inhabitants of the area”,

etc. I have no doubt (and I do not think Mr Arnold really contended to the contrary) that the words “for any local public purpose” cannot be confined in that context to charitable purposes. It is only necessary to refer in passing to the language of Lord Haldane in the case of Houston v. Bums, to which Mr Albery drew our attention. It is reported at page 342 of 1918 Appeal Cases. The words “local public purposes” are not, according to our law, regarded as being exclusively charitable; and, even against the background of the 1894 Local Government Act, I think it is plain that local public purposes in Section 268 of the 1933 Act are not only charitable purposes. But I do not forget the point that this section deals with acceptance of gifts and would not necessarily colour the general activities of a parish council, though I venture for my part to think that if in the case of gifts it is made plain that a parish council can apply them to non-charitable as well as charitable purposes, it is a severe obstacle in Mr Arnold’s way.

We were further referred to a more recent Act, the Physical Training and Recreation Act of 1937, which extended the powers of local authorities, by Section 4, sub-section (1), in (among others) the following way:

“A local authority may acquire, and provide with suitable buildings, lands for the purpose of gymnasiums, playing fields, holiday camps or camping sites, or for the purpose of centres for the use of clubs, societies or organisations having athletic, social or educational objects, and may manage those lands and buildings themselves”,

etc. It is, I would have thought, plain enough that the activities there contemplated go far beyond merely charitable activities; but Mr Arnold has said that any indulgence of the powers by that section by parish councils was rendered retrospectively charitable by Section 1 of the Recreational Charities Act of 1958:

“Subject to the provisions of this Act, it shall be deemed always to have been charitable to provide facilities for recreation or other leisure-time occupation if the facilities are provided in the interests of social welfare”.

Sub-section (2) imposes a qualification upon that:

“The requirement of the foregoing sub-section that the facilities are provided in the interests of social welfare shall not be treated as satisfied unless (a) the facilities are provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended, and (b) either (i) those persons have need of such facilities as aforesaid by reason of their youth, age, infirmity or disablement, poverty or social and economic circumstances, or”

— and then follows a phrase which in a sense slightly startles the reader —

“the facilities are to be available to the members or female members of the public at large”.

I am not satisfied (and I put it quite briefly) that the effect of the section which I have last read is to limit the powers of a parish council under Section 4 of the Act of 1937 to activities in the form of providing such things as holiday camps, clubs and so forth, which would be deemed or would be retrospectively made by the 1958 Act charitable only. I therefore have not been persuaded, as Mr Justice Danckwerts was not persuaded, that the colour or character of the gift here made is to be determined by considering that the donee, the parish council, is one whose official activities or whose constitutional functions were limited to charitable activities or functions.

If that view is right, then I am absolved from further considering the kind of case illustrated by the decision which I have earlier mentioned of re Rumball, and I am not therefore going to take time by considering those cases and answering the hypothetical question – assuming the premise that a parish council is to be treated for this purpose as having charitable functions only, whether you should confine the scope of the relevant language so as not to impose obligations outside the charity. I will, however, venture to add this, that if I am wrong in the view I have taken as to the nature of the parish council’s activities, I am not satisfied as a matter of construction (and I have already stated what I think the meaning is) that these words can amount to no more than a general direction, with or without limitation, that a parish council is not to take absolutely and beneficially but to apply the fund according to its statutory (and I will now assume charitable) duties. I have stated already my view of the meaning of the words used here, and I hope that in so doing I have justified the conclusion just stated; but, putting it in other words, if the principle illustrated by such cases as re Garrard (1907 1 Chancery, 382), re Flinn (1948 Chancery, 241) and re Rumball, already mentioned, to take three of them, is applicable to such a case as this — that is, to a non-ecclesiastical body or a body like a parish council, and I say no more on the matter whether it would be so applicable at all — the result is that this case, as I think, falls on a side of the line different from that on which fell the decisions in such cases as Garrard, Flinn and Rumball.

I now turn to Mr Arnold’s alternative argument based on the view that there is here a trust and a trust of a public character, but not a charitable trust. What he says is that the trust is in line with the trusts which were rendered effective in those cases which I have called “anomalous” and many of which are referred to in Mr Justice Roxburgh’s decision, beginning with Pettingall. I include in that list cases such as the three to which we have had our attention particularly drawn to-day. The argument (re-stating it briefly) is, as I follow it, that assuming the non-charitable but public nature of this trust, still it is of a character which the Court can efficiently, and will, enforce. It must be said, I think, that these cases which I have indicated are of a somewhat anomalous kind. They are classified in the recent book written by Mr Morris and Professor Barton Leach, “The Rule against Perpetuities”, and the classification will be found at page 298. “We proceed”, say the learned authors, “to examine these ‘anomalous’ exceptions. It will be found that they fall into the following groups: (1) Trusts for the erection or maintenance of monuments or graves; (2) Trusts for the saying of masses, in jurisdictions where such trusts are not regarded as charitable; (3) Trusts for the maintenance of particular animals; (4) Trusts for the benefit of unincorporated associations (though this group is more doubtful); (5) Miscellaneous cases”. I am prepared to accept, for the purposes of the argument, that it does not matter that the trusts here are attached to residue and not to a legacy; that is to say, it does not matter that the persons who would come to the Court and either complain if the trusts were not being carried out or claim the money on the footing that they had not been carried out are next-of-kin rather than residuary legatees. Still, in my judgment, the scope of these cases (and I can call them anomalous because they have been so called both in the book which I have read and in the course of the argument) ought not to be extended. So to do I think would be to validate almost limitless heads of non-charitable trusts, even though they were not (strictly speaking) public trusts, so long only as the question of perpetuities did not arise; and, in my judgment, that result would be out of harmony with the principles of our law. No principle perhaps has greater sanction or authority behind it than the general proposition that a trust by English law, not being a charitable trust, in order to be effective, must have ascertained or ascertainable beneficiaries. These cases constitute an exception to that general rule. The general rule, having such authority as Lord Eldon, Lord Parker and my predecessor Lord Greene as authority behind it, was most recently referred to in a case which we had mentioned to us to-day, in the Privy Council, of Leahy v. Attorney-General for New South Wales, 1959 2 Weekly Law Reports, page 722. I add also that, in my judgment, the proposition stated at page 308 in Mr Morris and Professor Barton Leach’s book that if these trusts should fail as trusts they may survive as powers, is not one which I think can be treated as accepted in English law.

I therefore, so far as this case is concerned, conclude (having already stated my view of the meaning of the words) that, though it is specific in the sense that it indicates a purpose capable of expression, yet it is of far too wide and uncertain a nature to qualify within the class of cases cited. I think it would go far beyond any fair analogy to any of those decisions. I do not wish to take time by much example, particularly because I am not unmindful of having already said that I do not wish to add to the future burden of citation; but, merely by way of example, if you get to memorials, I refer to the citation of re Hooper by Mr Justice Roxburgh at page 544 of 1952 1 Chancery. That was a case where the purpose of the bequest was to provide for the care and upkeep of certain graves, a vault and monuments. Mr Justice Maugham said:

“This point is one to my mind of doubt, and I should have felt some difficulty in deciding it if it were not for Pirbright v. Salwey. That was a decision arrived at by Mr Justice Stirling, after argument by very eminent counsel. The case does not appear to have attracted much attention in textbooks, but it does not appear to have been commented upon adversely, and I shall follow it”;

and I think it may be said that other cases in regard to monuments, which were closely on the facts in line, might similarly follow the decision of Mr Justice Stirling; but this case, as I construe the purposes of the gift, is very different from re Hooper.

re Drummond is the only other case under this head to which I think I need refer. That was a case, as will be recalled, where Mr Justice Eve held valid a gift by will and codicil for the Old Bradfordians Club. He said, in a. short Judgment, that “there was, in his opinion, a trust, but there was abundant authority for holding that it was not such a trust as would render the legacy void as tending to a perpetuity; it was not subject to any trust which would prevent the committee of the club from spending it in any manner they might decide for the benefit of the class intended”. The case of re Drummond was referred to at some little length by Lord Simonds in giving the Judgment of the Privy Council in the Leahy case which I have already mentioned; and, if I do not misread Lord Simonds’ Judgment, he thought that Mr Justice Eve, in treating the Old Bradfordians Club case as he did, had somewhat overlooked the ground of the earlier decision to which alone he referred in his Judgment in re Clarke. He said at page 733 of 1959 2 Weekly Law Reports:

“He (Mr Justice Eve) cited only In re Clarke, though other cases had been referred to in argument, and he ignored that Mr Justice Byrne had been able to reach his conclusion in that case just because he regarded the gift as a gift to the individual members of the corps who could together dispose of its assets as they thought fit”.

I do not propose to say more about re Drummond save this, that it seems on its facts to be a very widely different case from the present, and I am certainly not prepared to say that re Drummond is an authority which we should use as justifying an acceptance of the validity of this trust, making it (so to speak) a further addition to the anomalous number of cases classified in the way I have stated in Morris and Professor Barton Leach’s book. I should perhaps, as it was referred to, not pass from this point without a mention of a recent case (not, I think, reported) of Catherall deceased, decided by Mr Justice Roxburgh. It was a case in which the testator had made the following disposition, according to the citation in the affidavit of which we have a copy:

“(1) Unto the Vicar and Wardens of St. John’s Church, Great Harwood, £2,500 for a peal of bells and a clock for the tower in memory of my dear parents and devoted sister; (2) Unto the Vicar and Wardens of Great Harwood Parish Church £1,000 for a suitable memorial, at their discretion, in memory of my dear parents and devoted sister; (3) Unto the Vicar and Wardens of Great Harwood Parish Church £500 for the upkeep and attention to the family grave”.

The question arose as to the second of those gifts, £1,000 for a suitable memorial. According to the note with which Mr Buckley-has provided us, Mr Justice Roxburgh thought that was valid. He said, according to the note:

“It was argued whether this is a charitable disposition. I have reached no concluded opinion on that”.

Then he says

“Distinctions are very fine”,

an observation which may fairly find its place in every Judgment on this type of issue.

“I could construe the words as meaning such purposes (of a religious character) as they may think fit, being suitable as a memorial; that is, charitable; or I could construe the words as meaning any purpose suitable as a memorial; that is, non-charitable. But there is another ground on which this trust can be upheld. It is not perpetuitous. I went into these cases in re Astor. Such a trust as this is valid whether charitable or not. Purpose must embody a definite concept, and means to attain it must be described with sufficient certainty. In this case I should have no difficulty in deciding what would be a suitable memorial”.

Of course, we do not know much of the facts of that case, but the memorial was to be a “suitable” memorial in memory of the testator’s parents and devoted sister, of whom we know nothing at all. I am not therefore saying that this decision was in any way decided on wrong grounds; but it does seem to me, in its context, that in any event the decision could be justified on the ground that, as I say, in its context the purposes were limited to religious (that is, charitable) purposes.

That brings me then back to the question of construction in relation to the point raised by Mr Buckley; and I have, I think, already largely anticipated my answer to it. It is true, as Mr Buckley pointed out, that there are several instances in the books of trusts expressed to be for the benefit of the inhabitants of a place or parish which have been held to be valid charitable trusts. They are somewhat discussed in a recent case of Williams by Lord Simonds (1947 Appeal Cases, page 495); and as regards these cases also, as Lord Simonds observed, there is some ground for saying that they are anomalous. Whether some owe an origin to the strict language of Lord Macnaghten’s famous fourth category of charities or not, it is no doubt true to say that that particular formula, “for the benefit of the inhabitants of A”, has been taken on several occasions to be one which inherently has the quality that it is within the intendment of the Statute of Elizabeth, that the benefit indicated is the sort of benefit which would make it a charitable disposition. But the formula is not the same as that here used. It may well be, as Mr Buckley observed, that purposes which are useful to a community will also benefit the community; but that, I think, is not the point. The formula is different, and I have stated already my conclusion that what the testator meant was that this council should provide a memorial to himself having the quality that it should be useful, which, as I said at the beginning of my Judgment, I take to mean useful rather than (though not necessarily exclusive of) being ornamental. I only add this, that I cannot myself see that the utility is confined to the inhabitants of North Tawton. In the course of the argument a car park was suggested. Whether that is a good illustration, it is not for me to say; but if it were a suitable memorial in other respects, its utility certainly would not be confined, I should say, to the inhabitants of North Tawton. That being so, I think once more it would be wrong to treat this formula as being merely synonymous with “for the benefit of the inhabitants of North Tawton” and therefore, so construing it (but, as I think, illogicality), giving to this formula the inherent quality which the other has been held to have and holding it to be a charitable gift. Once more I think it would be contrary to the tenor of the law, more particularly as it has been recently expounded, and it would be carrying this case beyond (as I think) any limits which authority justifies.

Those, then, are my reasons for the conclusion which I stated at the beginning of this Judgment, that in my view Mr Justice Danckwerts rightly decided the case, and I therefore would dismiss the appeal.

LORD JUSTICE SELLERS: I agree with my Lord’s Judgment and find nothing I wish to add.

LORD JUSTICE HARMAN: I agree. At first sight, my mind recoiled from the possibility of this gift being held valid, and I have not seen any cause in the course of the hearing to resile from that view. One must first construe the will; and my view of that is that this testator, as my Lord has said, intended by his will to provide himself with a memorial in his native town. He added that the memorial to himself should also be useful. In other words, it must not consist of a statue of Mr Endacott in his trousers as he lived, unless that would serve some useful purpose; but it was not primarily of the benefit to the inhabitants of North Tawton that he thought, but of perpetuation of his own memory. So read, it seems to me apparent that the law cannot uphold the will, unless connected with the fabric of a church, without throwing over every kind of authority on this subject. A gift for public purposes in the parish of North Tawton, a gift for patriotic purposes, a gift for benevolent purposes, are all, as we all know, universally now held to be bad. How then shall it be held that a gift for useful purposes is good without upsetting the whole structure so elaborately built up and, one had hoped after Diplock’s case, so firmly established? I cannot think that charity has anything to do with this bequest. As for establishing it without the crutch of charity, I applaud the orthodox sentiments expressed by Mr Justice Roxburgh in the Astor case and I think, as I think he did, that though one knows there have been decisions at times which are not to be satisfactorily classified really, but are perhaps merely occasions when Homer has nodded, at any rate these cases stand by themselves and ought not to be increased in number, nor indeed followed, except where the one is exactly like another. Whether it would be better that some authority now should say those cases were wrong, this perhaps is not the moment to consider. At any rate, I cannot think a case of this kind, the case of providing outside a church an unspecified and unidentified memorial, is the kind of instance which should be allowed to add to those troublesome anomalous and aberrant cases. In my judgment, Mr Justice Danckwerts came to the right conclusion, and this appeal ought to be dismissed.

Order: Appeal dismissed with party and party costs of the parties other than the Attorney-General.

 

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