Re LEITCH, deceased
[1965] VR 204(Judgment by: Adam, J.)
Re LEITCH, deceased -
Court:
Judge:
Adam, J
Subject References:
Will
Charitable trust
Educational purposes
Practicability of fulfilment
'Scholarship'
Free education
'Government control' of school.
Judgment date: 27 June 1963
Victoria
Judgment by:
Adam, J.
This is an originating summons taken out by the executors and trustees of the will and estate of Sir Walter Leitch, deceased, for a determination of questions whether certain dispositions of the residuary estate are valid and effective charitable gifts and for directions in relation thereto.
The deceased, who died on 7 July 1945, domiciled in Victoria, by his will dated 15 December 1944 directed that the residue of his estate be held in trust to pay the income to his wife for life, and upon her death to divide the same into 10 equal parts. As to the gift of some of these parts of residue, no question arises. Questions arise, however, as to the validity of the disposition of two of such parts under CL5(b)(1); two of such parts under CL5(b)(2); one of such parts under CL5(b)(3) and another one of such parts under CL5(b)(5).
The testator's widow survived him, but died on 10 November 1957. The plaintiffs are also the executors and trustees of her will. The testator's next of kin, whose interest it is to challenge the validity of the disputed gifts of residue are represented by the defendant, John Main.
Question 2 of the originating summons concerned the validity and effect of the dispositions in CL5(b)(1) and CL5(b)(2) of the will.
CL5(b)(1) directs that as to two parts of the residue, the same be held upon trust "in perpetuity for the establishment of a scholarship in the Morebattle School in the County of Roxburghshire in Scotland to be known as the 'James Henderson Memorial Scholarship', in memory of my old schoolmaster, James Henderson, and to be awarded in each year according to conditions to be laid down by the governing authority of the said school whom failing then by my trustees".
CL5(b)(2) directs that another two of such parts be held upon similar trusts for the establishment of another scholarship in the Morebattle School, to be known as the "Sir Walter Leitch Scholarship".
The first problem arising is whether the "Morebattle School" referred to in CL5(b)(1) and CL5(b)(2) of the will is the school at Morebattle now known as the "Morebattle Junior Secondary School".
The further question whether the gifts for the establishment of scholarships in this school are good and effective gifts was strenuously contested.
For the next of kin, Mr. Shaw did not dispute that a trust for the establishment of a scholarship at an education institution was a good charitable trust. Indeed, the contrary seems unarguable. It is a trust for the advancement of education, a well-recognized head of charity in the legal sense: see Halsbury, 3rd ed., vol. 4, p. 220. What Mr. Shaw contended, however, and what with equal vigour was denied by Mr. Griffith who appeared for the Roxburgh County Council, was that this charitable trust was impracticable and for that reason failed.
The proposition basic to Mr. Shaw's argument was that a particular charitable trust, i.e., a trust evincing no more general charitable intention, lapsed if, at the relevant time, it was impracticable of fulfilment: see Halsbury, 3rd ed., vol. 4, p. 285. The argument for impracticability was that, since the passing of the Education (Scotland) Act 1945, shortly prior to the death of the testator, the education provided at the Morebattle School, and indeed, in general, at all public schools in Scotland, was free to all pupils; and accordingly that, as from that time, any trust to provide scholarships in such school could not be given effect to. This argument assumed that "the establishment of a scholarship" within the meaning of the will denoted the granting of emoluments to scholars in the school for the purpose of assisting them financially to continue with their education, and that, under the relevant legislation, financial assistance for boys to continue their education had become impracticable. If Mr. Shaw's assumption as to the meaning of scholarship is correct, his submission finds strong support in the case of Re MacKenzie, [1962] 1 WLR 880; [1962] 2 All ER 890. In MacKenzie's Case a gift of money to a county council "in trust to apply the income thereof to assist boys who are pupils of the public school at Glamis, ...to continue their education at a secondary school and this by the provision of bursaries tenable at such secondary school in the said county as the council shall determine" was held to be wholly ineffective because since, by the Education (Scotland) Act, education at secondary schools was free and no assistance was required to obtain it.
I agree with Mr. Shaw's submission that the trusts for the establishment of scholarships in the Morebattle School disclose no general charitable intention wider than the establishment of such scholarships at that school: see Attorney-General for NSW v Perpetual Trustee Co (1940) 63 CLR 209, at pp. 225-7; [1940] ALR 209. Indeed, the contrary was not, I think, seriously contested. It follows then, that if such trusts were impracticable, the gifts would lapse for the benefit of the next of kin. Impracticability is to be determined in this case as at date of testator's death, when, notwithstanding the life interest given to testator's widow, the gifts are to be considered as vesting in charity: Halsbury, 3rd ed., vol. 4, pp. 321-2, and cases there stated.
In deference to the decision in Re MacKenzie, I would assume that, had the trusts been expressed to be for the purpose of assisting boys in the Morebattle School to continue their education, they would have failed, because such a purpose could not be fulfilled consistently with the free education at such school afforded by legislation passed shortly prior to the death of testator.
But should the trusts to establish scholarships at this school be treated as trusts of this character? Much point was made by Mr. Shaw of a distinction drawn in the will between scholarships and prizes. Whereas both by CL5(b)(1) and CL5(b)(2) the establishment of a scholarship is directed, in CL5(b)(4) the income of a part of the residue is given for the purposes of "a prize fund" for the Toorak College and by CL5(b)(6) the income of part of residue is given "for the purpose of providing prizes for students at the Mothercraft Home and Infant Welfare Training School of the Victorian Baby Health Centre Association".
From the distinction thus drawn by testator between scholarship and prizes, Mr. Shaw contended that it should be assumed as a matter of construction that testator, when he used the word "scholarship", necessarily meant something other than "a prize". I do not consider that there is substance in this contention.
The use of the expression "prize fund" in connexion with the gift to Toorak College rather than "scholarship fund" is readily enough understood without throwing any light on the meaning of "a scholarship" in paragraphs (1) and (2) of CL5(b). Likewise, the direction to apply income for the purposes of providing "prizes" rather than scholarships at the Mothercraft Home Infant Welfare School seems more appropriate if, as one would suppose, prizes in kind such as books were in contemplation rather than monetary emoluments. Although, no doubt, particular scholarships are frequently established for special purposes--scholarships for research; travelling scholarships; scholarships entitling scholars to free places, at schools, etc., or at a University --I am not prepared to hold that according to common usages of speech, or by reason of any authoritative definition, the word "scholarship", in the absence of expressed purposes or conditions attached to it, connotes anything more than the grant of an emolument, normally in a sum of money, to a scholar selected on merit or upon some other rational criterion.
That the word in itself means no more, and, in particular, does not involve, as the necessary element in the concept, financial assistance to a scholar to enable him to continue his education--as Mr. Shaw was constrained to contend--is, I think, exemplified by the usage of the words "prize" and "scholarship" respectively in various endowments in the University of Melbourne where frequently the word "prize" and the word "scholarship" are used indifferently to describe an emolument possessing identical characteristics. Examples of "scholarships" being emoluments to students but to be enjoyed by the scholars without restrictions as to purposes of its application to be found in the University of Melbourne Calendar are Shakespeare Scholarship; the Argus Scholarships in Civil Engineering and in Geology; the Dixon Scholarships in Chemistry and Physics and Mathematics; H G Higgins' Scholarship; George Lansell Scholarships; Jessie Leggatt Scholarships; Fulton Scholarship in Obstetrics and Gynaecology; Harbison Higinbotham Research Scholarship; Keith Law Memorial Scholarship; R E Wilson Scholarships; Alwyn Steward Memorial Scholarship; F W Homewood Memorial Scholarship; and David Grant Scholarships.
It is of significance in arriving at the commonly accepted meaning of the word "scholarship" that the regulations governing many of these scholarships were made in pursuance of trusts in wills or other instruments for the establishment of scholarships with power to the University authorities to prescribe conditions therefor. No difficulty appears to have been felt in treating a trust for the establishment of a scholarship as sufficiently complied with by University regulations providing for what may be termed monetary prizes without any conditions as to the use to be made of the emoluments of the scholarship. In other cases, particularly of research scholarships where certain conditions are required to be fulfilled by the scholar during his tenure of the scholarship, normally no fetter is imposed on the scholar regarding the use to which he puts the emoluments of the scholarship. The need for financial assistance in continuing any course of study in research is, in general, not regarded in the conditions for the award of the "scholarship" as distinct from a "bursary".
Giving, as I think I should, a wide meaning to the trusts of the will for the establishment of scholarship in the Morebattle School and declining, as I do, to treat those trusts as equivalent or similar to trusts to "assist boys to continue their education and this by the provision of bursaries", I consider the decision in Re MacKenzie is of no real assistance in resolving the question whether these trusts are impracticable.
From the plaintiffs' affidavit in support of this originating summons it appears that the educational officer in the County of Roxburgh considers that it is a matter of difficulty to suggest how the terms of the trust to establish scholarships in the Morebattle School can be observed. But no grounds for this are stated. In a replying affidavit Lord Stratheden, the convenor of the education committee of the Roxburgh Council has said the views thus expressed represent the personal view of the director of education made by him in the light of information then available regarding the provisions contained in the will of the late Sir Walter Leitch and not the considered views of the county council which is the educational authority. The official view of the county council is that the Morebattle School is the property of the county council and is administered by them through their education committee, and as the council administers other funds providing scholarships and grants in the County of Roxburgh, similar to the scholarships proposed in Sir Walter Leitch's will, the county council is the trustee entitled to receive and administer the legacies referred to in CL5(b)(1) and CL5(b)(2). As each of the scholarships to be established pursuant to the will is to be awarded each year according to conditions to be laid down by the governing authority of the said school (that, according to the evidence, is the county council) "whom failing then by his trustees", I agree in substance with the views expressed by Lord Stratheden, for it appears from his affidavit that scholarships administered by the county are administered in terms of the County of Roxburgh, Educational Trust Scheme 1958, and by s8 thereof, that the county council is empowered to receive, by way of legacies and other gifts, "additional donations" which it is obliged to apply in accordance with the directions of the respective trustees and donors.
In the result then it has not been established to my satisfaction-- and the burden of doing so is clearly on those who attack a charitable gift on such grounds--that the charitable trusts for establishing scholarships in the Morebattle School are impracticable in any relevant sense.
A further question arising in relation to such gifts for scholarships is whether, since the making of the will the Morebattle School has come under "Government control" within the meaning of CL6. That clause provides: "In the event of any one or more of the institutions referred to in the last preceding clause ceasing to exist or to function or come under Government control, I direct that my trustees shall thereafter supply the income of the relative part or parts of my residuary estate for such other charitable or educational purposes as they, in their absolute discretion, may deem fit."
One of the institutions referred to is the Morebattle School. Having regard to the history of the school at Morebattle which, after the passing of the Education Act 1872, functioned as a parish school under a school board until the passing of the Local Government (Scotland) Act 1929, from which time it came under the control of the county council as the educational authority, I have found some difficulty in giving any precise meaning to the expression "coming under Government control in relation to that institution". This rather suggests that, as applied to this institution, this divesting condition, in the nature of a condition subsequent, may be void for uncertainty on principles enunciated in such cases as Clavering v Ellison (1859) 7 HL Cas 707, and Clayton v Ramsden [1943] AC 320; [1943] 1 All ER 16. I prefer, however, to rest my decision on the narrower ground that any changes which have occurred in the control of the school since the making of the will have not resulted in the school "coming under Government control" within the meaning of the clause. Government control must, in this context, mean control by the central Government: see Re Buzzacott, [1953] 1 CH 28; [1952] 2 All ER 1011. The argument to the contrary is based on the provisions of the Education (Scotland) Acts 1945 and 1946. I accept the submissions of Mr. Griffith that this legislation, although it has increased the degree of participation by the central Government in the affairs of the Morebattle School, has not resulted in that school coming under the control of the Government within the meaning of the will. As before testator's death, the local county council remains the education authority responsible for the teaching of children at the school and the day-to-day administration including the appointments and dismissal of the teaching staff. True it is that the legislation has provided for education schemes under which schools such as the Morebattle School are to function, and these schemes, although prepared by the education authorities, require to be approved by the central Government authority, but this feature I do not regard as involving "control" of the school by central Government. Once the scheme is approved, the control of the local education authority, acting in conformity with the scheme proposed by it and approved, is for all practical purposes unfettered.
As Mr. Griffith said, the only material changes in what can be related to the "control" after the Act of 1929 appear to be an increasing measure of standardization of educational method and responsibility.
Accordingly, I am not prepared, on the evidence, to hold that the trusts to take effect, should the school come under Government control, have at this stage arisen.
JD Merralls, for the plaintiffs.
NM Stephen, for the defendant, Old Colonists' Association.
BJ Shaw, for the defendant, John Main.
FM Bradshaw, for the defendant, the Attorney-General for Victoria.
RG DeB Griffith, for the defendant, the County Council of the County of Roxburgh.
KJ Jenkinson, for the defendant, Thomas Mowat.
Solicitors for the plaintiffs: Whiting and Byrne.
Solicitors for the Old Colonists' Association: Gair and Brahe.
Solicitors for the defendant, John Main: McCracken and McCracken.
Solicitor for the Attorney-General: Thomas F Mornane, Crown Solicitor.
Solicitors for the defendant, the County Council of the County of Roxburgh: Hedderwick, Fookes and Alston.
Solicitors for the defendant, Thomas Mowat: Moule, Hamilton and Derham.
JEREMY DARVALL