Re Raine (deceased)
[1956] 1 All ER 355(Judgment by: Vaisey J)
Walton v
Attorney General and Another
Judge:
Vaisey J
Subject References:
Charity
Cy-pres doctrine
Gift of residue
Particular charitable purpose
Surplus after satisfying prescribed purpose
Direction of scheme
Case References:
Re Connolly (1914) - 110 LT 688; 8 Digest (Repl) 421, 1115
Re Stanford - [1924] 1 Ch 73; 93 LJCh 109; 130 LT 309; 8 Digest (Repl) 468, 1701
Re King - [1923] 1 Ch 243; 92 LJCh 292; 128 LT 790; 8 Digest (Repl) 315, 10
Re Royce - [1940] 2 All ER 291; [1940] Ch 514; 109 LJCh 327; 163 LT 172; 8 Digest (Repl) 341, 232
Judgment date: 17 January 1956
Judgment by:
Vaisey J
By her will the testatrix gave her real and personal property on trust for sale, and subject to a life interest, gave specific and pecuniary legacies including a legacy of £400 for a "stained glass window to be inserted in [R.] church". She directed that the remainder of her property "be sold and the proceeds taken for the continuation of the seating of the church" at R. After the seating in the church had been completed, so that it could not be extended further without impairing the beauty of the church, there would be a surplus of the residuary estate. On the question whether such surplus should be applied cy-pres or developed as on intestacy,
Held - The will showed an intention that the whole of the residue should be applied to a particular charitable purpose, viz, the provision of seating in the church, and as the gift of residue was a gift of more than was required for that purpose, the surplus would be applied cy-pres.
Re King ([1923] 1 Ch 243) and Re Royce ([1940] 2 All ER 291) followed.
Re Connolly (1914) (110 LT 688) and Re Stanford ([1924] 1 Ch 73) distinguished.
Notes
As to cy-pres doctrine and its application where a surplus remains after satisfying the particular and immediate object, see 4 Halsbury's Laws (3rd Edn) 323, para 661; and for cases on the subject, see 8 Digest (Repl) 467, 1673-1685.
Adjourned Summons
The plaintiff, Robert Walton, as the executor and trustee of the will of Sarah Raine deceased, applied to the court by originating summons for the determination of the question whether the residuary estate of the testatrix remaining after expending thereout the sum of £411 in the continuation of the seating of the church at Romaldkirk, and any costs incurred with such expenditure, ought to be applied cy-pres, or devolved as on the partial intestacy of the testatrix.
H A Rose for the plaintiff, the executor and trustee.
N C H Browne-Wilkinson for the first defendant, HM Attorney General.
J A Brightman for the second defendant, representing next of kin.
24 January 1956. The following judgment was delivered.
VAISEY J . This summons raises a question of construction on the will of Miss Sarah Raine. [His Lordship referred to the question in the summons and continued:] The will is dated 7 June 1944, and the testatrix died on 28 January 1953. The will is short and simple. The testatrix appoints two executors, one of whom survives, and is the plaintiff on this summons. She gives the whole of her property, whether real or personal, to her executors as trustees on trust for sale. The first trust was a trust to pay the income during his life to her brother who died in her lifetime. By the next trust, which is expressed to take effect on the brother's death and which, in the result, took effect on her death, she bequeathed certain legacies specific and pecuniary. One of the pecuniary legacies is a bequest of £400 for a stained glass window "to be inserted in Romaldkirk Church in memory of" her brother and herself. Finally, she directed that the remainder of her property should be sold and the proceeds "taken for the continuation of the seating of the church at Romaldkirk". There was a codicil which throws no further light on this question.
The will was proved on 14 April 1953, at Durham by the plaintiff, Mr Robert Walton, of Romaldkirk, the other executor having renounced probate. The defendants are, first, the Attorney General, and, secondly, Mrs Walton, who is one of the testatrix's net of kin. Romaldkirk is a village in Teesdale, and the church is one of great interest and beauty. At the date of the death of the testatrix the seating in the church had been fairly recently installed and consisted of oak pews of good design and workmanship; but there were about fifty chairs, so that the seating was only partly of a permanent character. That explains the expression in the will that the residuary proceeds of the testatrix's estate were to be taken for the "continuation of the seating ... "
The £400 which was given for the purposes of the stained glass window is obviously not enough to provide a suitable window, but, after having set aside that sum to abide the result of these proceedings and paying £411 for completing the seating of the church, about £2,000 remains.
The evidence shows that the seating in the church as it existed at the death of the testatrix, and as it has now been completed and enlarged, is not only sufficient for the ordinary congregation assembled in the church, but also could not be added to without encroaching on the nave and the aisles and so detracting from the beauty and dignity of the building. The rector of Romaldkirk and the churchwardens and the parochial church council would like to have this £2,000, and they suggest that part of it should be put towards augmenting the sum bequeathed for the window, and that the bulk of it should be used for the future maintenance of the seating and of the church itself. If what is called the cy-pres doctrine applies in this case, the money will have to be devoted to charity. If that doctrine is not applicable, then the surplus money, the sum of approximately £2,000, goes as on an intestacy to a class of next of kin represented by the second defendant.
It has been said as a general proposition that, unless there is a general charitable intent, the cy-pres doctrine cannot be applied, or ought not to be applied. As a general proposition, that is well-founded and well-established. It is well exemplified by such cases as Re Connolly (1914) (110 LT 688) and Re Stanford ([1924] 1 Ch 73). It is to be observed that in both those cases the court was dealing with a pecuniary legacy. In each of those cases the surplus was claimed by those who were interested under a residuary gift. Different considerations arise where the gift itself is residuary. In Tyssen's Charitable Bequests (2nd Edn), at p 184, the author gives as one of the cases in which the doctrine of cy-pres is applicable the case in which there is a general intention to devote the whole of the subject of the gift to charity, and there is more than is required for the purposes of the defined charity, with the result that there is a surplus. In the present case, I think, there is not a general charitable intent in the wider and vaguer significance of that expression, but there is a general and comprehensive intention expressed by the testatrix that the whole subject of her gift, ie, the whole of her residuary money, is to be devoted to a charitable purpose. Inasmuch as here there is a surplus, I think that the matter has to be approached in a very different way from that appropriate where there is a pecuniary legacy, because the general intention is that the whole of the residuary estate should go and be applied for a charitable purpose. The gift is itself residuary, and the whole of the residue is in the testatrix's contemplation to be devoted to a charitable purpose. There is more money available than is required for the limited charitable purpose within the particulars mentioned in the will, ie, the seating of the church. It is obvious that the testatrix wanted everything that she had, apart from the subject-matter of the legacies, to be devoted to Romaldkirk Church, and I think that there is shown an intention to part with the whole of her residuary property in favour of charity, from which one can spell out a charitable intention which can only be carried out by the application of the cy-pres doctrine.
For that proposition there are two cases which are of assistance. The first is a decision by Romer J in Re King ([1923] 1 Ch 243) in which the headnote is this:
"A bequest of residue to provide for the erection of a stained-glass window in a parish church to the memory of the testatrix and certain of her relations is a good charitable gift, and if the residue is more than sufficient to meet the cost of a window of the best possible character, the surplus remaining in the hands of the trustees must be applied cy-pres."
I do not think the judgment in that case is very helpful, particularly because I think, with great respect to the learned judge, he has quoted the wrong passage from Tyssen's Charitable Bequests. I think that the relevant passage in that book is that to which I have referred (p 184). The passage which Romer J quoted is at p 202, but I think the passage which I have quoted is that which gives the key to the solution of the present question. If the decision in Re King is right, I think it is indistinguishable from this case, and if I am not bound technically to follow it, I certainly think I ought to follow it. I am further fortified in my view by the second case which I wish to mention, Re Royce ([1940] 2 All ER 291). In that case both a share of residue and a pecuniary legacy were given to the vicar and churchwardens of the parish church of Oakham "for the benefit of the choir". There was a great deal of discussion as to what the words "for the benefit of the choir" meant. The decision was that it was the intention of the testator to provide a fund for the maintenance and improvement of the musical services of the church, and that being a bequest for the advancement of religion, it was a valid charitable bequest. Simonds J in deciding the case said that a general charitable intention was shown by the will, but the amount being greater than could be used for the choir, a scheme was directed for the application of the surplus income. I read that case as indicating that where the testatrix has shown an intention to use the whole of the residue, or the remaining portion of the residue, for a charitable purpose, it is not necessary to do more than to find that intention, viz, an intention to part with the whole subject-matter of the residuary gift for a charitable purpose. It is not necessary to find a general charitable intention in the wider sense in which those words are sometimes, and perhaps more frequently, used.
I think that the testatrix has shown on the face of her will an intention to give the whole of the residue of her estate for charitable purposes. She did not mean to keep anything back. She gave no further directions. True it is she did not leave any part of the residue to the vicar or churchwardens or the parochial church council or to anybody else, but merely indicated the purpose for which this money was to be applied. But I think that she showed no intention whatever of leaving anything out of what she designed as an application of her residuary estate to charity.
I think that it is very necessary in these cases to remember that the application of the doctrine differs very much according to whether or not it is applied to residue or a share of residue or merely to a legacy. I think that where there is a residuary gift out and out for a charitable purpose, and there is a surplus over and above what is required for that particular purpose, the overriding intention of a charitable disposition should prevail, with the result that the surplus must be applied cy-pres.
Order accordingly.
Solicitors: Champion & Co agents for Dawson, Arnott & Pickering, Barnard Castle, Durham (for the plaintiff and the second defendant); Treasury Solicitor.