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(1944) JELR 87103 (HL)

House of Lords  •  21 Jun 1944  •  United Kingdom

Viscount Simon, L.C., Lord Macmillan, Lord Wright, Lord Porter and Lord Simonds


VISCOUNT SIMON, L.C.: My Lords, the will 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 charitable institution or institutions or other charitable or benevolent objects in England ......

as they should select. The Court of Appeal (LORD GREENE, M.R., CLAUSON and GODDARD, L.JJ.), overruling FARWELL, J., has decided that this is not valid testamentary disposition.

After studying the powerful judgment of LORD GREENE, M.R., 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 direct executors or trustees to do the business for him. That exception arises when the testator is minded to make gifts for charitable purposes, and where he directs his executors or trustees, within such limitations as he choose to lay down, to make the selection of charities to be benefitted. 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 the 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 court by the other. It appears to me that it inevitably follows that the phrase “charitable or benevolent” occurring in a will must, in its ordinary context; be regarded us 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 sympathy to the effort to find one, but it does not seem to me, notwithstanding the opinion of the late FARWELL, j., that there is any context which might give to the impeached phrase a special meaning. The conjunction “or” may be sometimes used to join two words whose meaning is the same, but, as the conjunction appears in this will, it seems to me to indicate a variation rather than an identity between the coupled conceptions. Its use is analogous in the 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 have no right to see at nought an established principle such as this in the construction of wills, and I, therefore, move the House to dismiss the appeal.

LORD MACMILLAN: My Lords, the law, in according the right to dispose of property mortis causa by will, is exacting in its requirements 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 selection of individual persons or objects within the defined 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: ace Houston v. Burns (1). per VISCOUNT HALDANK, at pp. 342, 343.

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 object to be benefited, with the result that the bequest is held void for uncertainly. Thus a bequest to such public purposes as the testator’s trustees may select is not “within the description of a particular class of individuals or objects” (per LORD DAVRY in Blair v. Duncan (2), 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., A.G. for New Zealand v. Brown (3). and A.G. for New Zealand v. Nee Zealand Insurance Co., Ltd. (4) ).

One class of objects, however, notwithstanding its generally 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 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 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 hold 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 road 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 find no warrant for reading conjunctively two words which the testator has expressly disjoined.

I confess it is somewhat disconnecting 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 consideration 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. Baillic (5): or among “charities or benevolent or beneficent institutions”, Paterson’s Trustees v. Paterson (6): or among “charitable or philanthropic institutions”, Mackinnon’s Trustees v. Mackinnon (7). The topic is very fully discussed in Reid’s Trustees v. Cattanch’s Trustees (8) 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 processes 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 synonym. The fact that in Scotland the term “charitable” has in law been 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 attractive. 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.

LORD WRIORT: My Lords, the testator in this case after various bequests, left the residue of his estate, to his executors to apply to:

........charitable institution or institutions or other charitable or benevolent object or objects in England.....

as in their absolute direction they should select. He died in 1936. The will having in due course been proved the executors distributed the residue, amounting in 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 charitable and benevolent. The word “or” it was said severed “charitable” 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 administering trusts to apportion the distribution between what was charitable and what was benevolent. The bequest it was said was void for uncertainly. 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 good 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 scrutinized 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 criticized for their construction of particular words of bequest or their limitation of what bequests are permissible as charitable. In Bourne v. Keane (9) 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 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. These is no differently in the latter construction. 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 construction simply as a matter of words. The difficulty arises from the want of definition which has always characterized 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 not charitable. That, indeed, has led to a host of decisions, often difficulty to reconcile or explain. LORD STERNDALE, M.R., dealt with both aspects of the difficulty in Re Telley (10). The question there was the meaning of the word patriotic. He lamented the absence of “any principle which would 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 MAKINO, 3rd Edin., 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 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 be to throw any light on its decision until I have attempted to understand 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 the Mortman and Charitable Uses Act, 1888, s. 13 (2), which after reciting that in “drivers enactments and documents reference is made to charities within the meaning purview and interpretation of the said Act”, enacted that references to such charities should be constructed 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 becomes obsolete when it was repealed 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 chat. This was observed by LORD MACNAGHTEN in Pemsel’s case (11), at p. 581. Charities had even before 1601 been subject to the equitable jurisdiction 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 addition to objects which would ordinarily be considered to be eleemosynary 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 it has a legal technical sense in English law. But in 1767 LORD CAMEN, L.C., in Jones v. Williams (12), defined it as a gift to a general public use which extends to the poor as well as the rich. In Goodman v. Mayor of Saltash (13), at p. 642, LORD SELBORNE, L.C., said:

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.....

He cited Wright v. Hobart (14), 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 comprehensive 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 cover 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 (11), at p. 583. The question in the case was whether the word charity as used in the Income Tax Acts bore the same meaning in its application to Scotland 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 education 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 extraordinarily 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 indefinite sense in which the word charitable is used in Courts of equity, adds in Re Macduff (15), at p. 464:

Probably not one man in a thousand understands what the sense is, and the sense itself is a very indefinite one.

This breadth is confirmed by the decisions upon charities. I shall be content to refer merely to two lists of instances; the first is that contained in TOLHILL’S CASES IN THE HIGH COURT OF CHANCERY, List 27, which contains decisions 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 HALSBURY’S LAWS OF ENGLAND, Hailsham Edn., Vol. 4, 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 Elizabeth by analogy. But, all the same, it is impossible not to feel sometimes 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 draw. The absence of a modern and scientific definitions cannot fail to introduce uncertainty, as the great mass of contested litigation shows. But what I am concerned with at the moment is that though charity is a very wide and comprehensive term, as shown in its particular 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 has adopted charity or charitable 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 and that second description is used disjunctively, not conjunctively, the court washes its hands of the administration and holds the entire 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 administer 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 (6) 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 cypres doctrine to such cases, or to make any apportionment. They have most nearly approached an apportionment in cases like Re Douglas (17), but that is regarded as a special and different type. LORD DAVEY discusses these distinctions in Hunter v. A.G. (18), 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 Re Best (19), 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 qualities 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 construction 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 (11) is careful to equate charity and benevolence even as the words are popularly used. He sums up, at p. 572, that:

..... the popular conception of a charitable purpose covers 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 “benevolence 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 HERSCHEL would, I think, have used the same language in references to the purposes, religious or educational or other purposes beneficial to the community 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, motives is loss apparent or in a sense is non-existent in such instances as the repair of use 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, dissenting in Pemsel’s case (11), gave as instances of purposes which he regarded as benevolent but nor charitable in the legal sense, a fund for providing oysters at one of the Inns of Court or a trust to provide music the village green. As to the latter, modern ideas would be disposed to treat the gift as both benevolent and 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 technical sense. The leading case, Morice v. Bishop of Durham (20), 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 showing 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 benevolent 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 providing oysters or other lavish entertainment. But in James v. Allen (21) the bequest was simply for benevolent purposes at the discretion of the trustees. SIR W. GRANT, M.R., 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 excluding 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 (22), at p. 297:

.......the present, like other cases of construction, depends on 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 (23), 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” a “or”, and as having the same effect as “or” in the intended; thus according to the decisions “and” and “or” were held to be interchangeable. That depended on the context and the lay-out of the sentences.

In Dolan v. Macdermot (24), 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 gain money for the family, nor, on the other hand, stain to support the will to gain money for the charity--- was 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 purpose” ejusdem generis as supplying and filling up a description of the purposes which, although within the Statute of Elizabeth and the technical doctrine of the court in 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 (1). 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 purposes, but that on its true reading it was for the benefit of benevolent 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, at pp. 341, 342:

It appears to me that without the punctuation which appears in the will as printed in the appendix, this is quite a possible construction where the words are ambiguous a construction should be adopted which will make the bequest void.

He then went on to discuss the punctuation, and on that ground held that the clause was to be read disjunctively. Though the appeal was from Scotland, the Lord Chancellor 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 benevolent, Blair v. Duncan (2), 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 (10) 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 Re White (25), 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 recognizing the possibility that a religious society was not necessarily charitable, came to the conclusion that they could not, “without splitting hairs,” distinguishing 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 (26), 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 institutions, which the court held were in part religious, or “to any other religious institutions” 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 (3), a decision of the Privy Council, which showed that “and” could and should 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 explained 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 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 importance of the decision, which does not bind this House, is that, though the decision in Re Jarman’s Estate (27), 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 (3) ), enunciated shortly afterwards in the form of the proposition that a gift for charitable or benevolent purposes is void for uncertainty: Bowman v. Secular Society (28), at p. 441. This would no doubt be so provided that on the true construction of the gift the purpose 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 observation have no coercive value as precedents.

Re Jarman (27) may or may not have been right in the language of the particular gift. HALL, v. C., there held that a bequest to any charitable or benevolent purpose which the executor 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 Re Sutton (29), and Re Best (19), have been decision. Their effect was that a gift for such charitable or benevolent institutions as the trustees should determine is not void for uncertainty, but is a good charitable gift. It was held the testator meant that the object 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 Re Best (19), the testator may have wished that the two qualities should coincide 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 characteristics, 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 building 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 characterized 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 indeterminate, 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 disposition in favour of dishonest or unprincipled men would not present a true alternative, though it might on other grounds be 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 Scottish judges, LORDS DUNEDIN, KINNEAR, MACLAREN and DUNDAS, who have held that certain dispositions 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 (5), and Paterson’s Trustees v. Paterson (6). The Scots law has not been argued before your Lordships, but I think that these decision involve the application of rules of construction common both to England and Scottish law.

For myself, I would allow the appeal and restore the judgment of FARWELL., J.

LORD PORTER: 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 expressed intention which must govern. The principle is succinctly expressed by LINDLEY, L. J., as he then was, in Re Morgan (30), at p. 227:

Now I do not see why, if we can tell what a man intends, and can give effect to his intention 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 consider that he did not intend to die intestate, see per LORD ST. LEONARD, in GREY v. PEARSON (31).

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 seem from the wording 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 consideration 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 (21), 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 do 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. Prima 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 charitable, 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 charitable only, the weight of authority is too great to be readily overthrown. Two matters of principle in the interpretation of wills are firmly established:

(i) 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. It is not however enough that he should leave property under a disposition in pursuance of which his assets may be disposed of the 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, M.R., in James v. Allen (21), at p. 19:

..... what authority would this court have o say that the property must not be applied to purposes however so benevolent, unless they also come within the technical denomination of charitable purposes? If it might, consistently with the will, he applied to other than strictly purposes, the truth is too indefinite for the court to execute.

The same principle is enunciated in Hunter v. A.G., (18), 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 (22), at p. 299, that a gift to “charitable or other purposes “was void. Similar opinions are to be found in A.G., v. Brown (3), in Houston v. Burns (1), and A.G. for New Zealand v. New Zealand Insurance, Co. (4), to quote but three from amongst those discussed in your Lordships’ House or in the Privy Council. Indeed in Williams v. Kershaw (23) 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 purpose 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 expressing 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 (27).

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 (19), since the conjunction in that case is effected by using “and”, not “or”. Nor by the decisions in A.G. v. Brown (3), where the wording was “charitable, benevolent, religious and educational institutors, societies, associations and objects”, and in Re Baron Ludlow (32), 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 phrase 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 simple 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.

No doubt the testator in the present case wished his estate 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 if institutions limited to charitable ones, followed by a gift to “other charitable or benevolent objects”, to my mind suggests a widening of his beneficence 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 Scottish decisions. In those cases “societies or institutions of a benevolent or charitable nature”, Hay’s Trustees v. Baillie (5), “such charitable or benevolent institution”, Paterson’s Trutees v. Paterson (6), and “charitable or philanthropic institutions”, Mackinnon’s Trustees v. Mackinnon (7), have all been held valid charitable trusts, whilst in Reid’s Trustees (8) 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 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 beneficiaries.

But Scots 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 form the basis for determining what are charities in England law, never applied to Scotland, and in the second charities, speaking generally, are not controlled by the Seots courts.

The ambit of “charity” in Scotland may be narrower than it is in England; at any rate LORD MONGRIEFF thought so, as appears from his dissenting judgment in Grimond v. Grimond (33), and afterwards approved in your Lordships’ House. 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 Scottish courts in a where the validity of a gift in an English will depends upon its charitable nature.

I find myself in entire agreement with the judgment of LORD GREENE, M.R., and agree that the appeal should be dismissed.

LORD SIMONDS: My Lords, the question raised in this appeal turns upon the meaning and effect of the will of Celab Diplock, who died on Mar. 23, 1938. By his will, which was dated Nov. 3, 1919, the testator, after appointing executors and making certain bequests and devises, to which I do 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 dully proved on May 16, 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 according to be entitled to a share of his residuary estate as upon his intestacy. On June 10, 1940, the originating summons, out of which this appeal arises, was issued by the executors in the Chancery Division for the determination of the single question whether the trust of residue contained in the will, which I have already stated, was a valid charitable 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 Lordship’s 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.

My Lords, in stating the question for your Lordships’ consideration I have said that it turns upon the meaning and effect of the testator’s will. Advisedly 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, “charitable or benevolent”: the question is whether in the context in which they are found in his will these words give to the executors a choice of objects extending beyond that which the law recognizes as charitable trust. 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 conceded 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 meaning, 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 “benevolent”, 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 retain 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 possible if the words or phrases which it joins connote the same thing and are interchangeable the one with other. In this case the testator is assumed to use the word “charitable” in its legal sense: 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 construed as equivalent to “provided such objects are also of a benevolent 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 context 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 benevolent object or objects” and to this the appellants attached some importance, suggesting that since “other” looked back to “charitable institution or institutions” so all that followed must be 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”. Part from this slender point it seemed that the appellants relied upon what is called a general, a dominant, an overruling charitable intention, giving charitable content to a word or phrase which might otherwise 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 Lordship. But here again I look in vain for any such context. Upon the plain reading of this will I could only come to the conclusion that the testator intended exclusively to benefit charitable objects if I exercise 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 Lordship to hold that a bequest for charitable or benevolent objects simpliciter is in English law a good and effective bequest, and urged that Re Jarman (27), which decided the contrary should be overruled. 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 introduction 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 benevolent 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 mere formidable task than the overruling of Re Jarman (27) 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 (20). I refer only to the first that in recent times LORD DAVIES in Hunter v. A.G. (18), and LORD PARKER in Bowman v. Secular Society (28), have selected such words as “charitable or benevolent” as the very type of gift which 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 rude, 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 ascertainable 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 Elizabeth, 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.

Appeal dismissed.

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