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Trusts - From: 1930 To: 1959

This page lists 48 cases, and was prepared on 02 April 2018.

 
Patton v The Toronto General Trusts Corporation and Others [1930] UKPC 61; [1930] AC 629
30 Jun 1930
PC
Viscount Dunedin, Blanesburgh, Darling, Atkin, MacMillan LL
Commonwealth, Trusts
(Ontario) The court considered the validity of gifts of annuities made subject to a condition precedent that the beneficiary proves himself to be “of the Lutheran religion". Held: The claim to the annuity was made out. Evidence might be given of the tenets of that religion or faith so as to see if the person is or is not an adherent of it.
1 Citers

[ Bailii ]
 
Re Hadden [1932] Ch 133
1932

Clauson J
Charity, Trusts
A trust of land for its use for the purposes of public recreation is charitable.
Mortmain and Charitable Users Act 1888
1 Citers



 
 Hourigan v Trustees Executors and Agency Co Ltd; 1934 - (1934) 51 CLR 619
 
Gravesend Corporation v Kent County Council [1935] 1KB 339
1935
KBD
Lord Wright
Trusts, Insurance
A school vested in the Corporation had been built with the assistance of financial contributions from the County Council. As a result of various legislative changes the County Council replaced the Corporation as the education authority and as the user of the school. The main questions were whether the County Council had to pay the Corporation rent for their use of the school and whether the County Council, by its contributions to the costs of building and maintaining the school, had acquired an equitable interest in the premises. Held: “... though the legal estate in the school is vested in the Gravesend council, the county council have an equitable estate or interest in it in the proportion that the total sums contributed by the county council bear to the total cost on the principles very simply and clearly stated by Farwell L.J. in The Venture ” and "On this basis the full rent must be reduced in favour of the county council to the extent of this equitable interest or resulting trust pro tanto”.
1 Cites

1 Citers



 
 Re Pfrimmer; 1936 - [1936] 2 DLR 460
 
Re Halstead's Will Trusts [1937] 2 All ER 570
1937
ChD
Farwell J
Trusts
The term “benefit” in a trust instrument is to be construed widely. To exercise a power of advancement by settling on an object of the power and his wife and children, property in which he has otherwise only a life interest was an "application".
1 Citers


 
Birmingham v Renfrew (1937) 57 CLR 666; [1937] HCA 52
11 Jun 1937

Dixon J, Latham CJ
Wills and Probate, Contract, Trusts, Equity
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as "a trust which is declared by the law to affect the conscience of [the survivor's] executor and of the volunteers who are devisees or legatees under his will." and "Those who undertake to establish such an agreement [ie of mutual wills] assume a heavy burden of proof".
Dixon J set down the principles for mutual wills: "It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . . The purpose of an arrangement for corresponding wills must often be, as in this case, to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying. That is to say, the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership so that, for instance, he may convert it and expend the proceeds if he choose. But when he dies he is to bequeath what is left in the manner agreed upon. It is only by the special doctrines of equity that such a floating obligation, suspended, so to speak, during the lifetime of the survivor can descend upon the assets at his death and crystallize into a trust. No doubt gifts and settlements, inter vivos, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is, therefore, not unqualified. But, substantially, the purpose of the arrangement will often be to allow full enjoyment for the survivor’s own benefit and advantage upon condition that at his death the residue shall pass as arranged.”
1 Cites

1 Citers

[ Austlii ]
 
Sifton v Sifton [1938] AC 656; [1939] 1 All ER 109
1938
PC
Lord Romer
Trusts, Commonwealth
(Canada) The court considered the validity of a gift in a will challenged for uncertainty, in this case a condition as to residency within a country. Held: Lord Romer said that the meaning of such words as reside or residence, "obviously depends upon the context in which the words are used" and "Where it is doubtful whether a condition be precedent or subsequent the Court prima facie treats it as being subsequent. For there is a presumption in favour of early vesting."
1 Cites


 
In re Buchanan - Wollaston's Covenant [1939] Ch 738
1939


Trusts
When considering the need to order the sale of property against the wishes of a joint owner, "the Court has a complete discretion to do what is right and proper, and will not allow the voice of the man who is in breach of his obligation to persist"
1 Citers



 
 Lomax v Peter Dixon and Son Ltd; CA 1942 - [1943] 2 All ER 255; [1943] KB 671; [1942] 25 TC 353
 
Muir's Trustees v Williams 1943 SC (HL) 47
1943
HL
Lord Thankerton
Trusts, Scotland
The law against perpetuities in Scotland is entirely of statutory origin.
1 Citers



 
 In re Mayo; ChD 1943 - [1943] Ch 302
 
In re Hooper's Settlement, Phillips v Lake [1943] Ch 116
1943
CA

Wills and Probate, Trusts
A 1912 settlement created a trust 'for such person or persons as would have become entitled to the settled fund under the statutes for the distribution of the personal estate of intestates at the death of the settlor had he died possessed thereof intestate and without having married'. It was argued that this meant the persons at the death of the settlor who were entitled under the statutes in force at the same time. Held: The argument failed. Under section 50(2) of the 1925 Act 1925, it meant the persons at the death of the settlor (in 1941) who were entitled under the statutes in force immediately before the commencement of the 1925 Act.
Administration of Estates Act 1925 50(2)
1 Citers


 
Waterson's Trustees v St Giles Boys' Club 1943 SC 369
1943
IHCS

Scotland, Trusts
The House considered a testamentary direction by the testatrix to give effect to any "informal writing under my hand". At her death she left holograph directions, but they were not subscribed with a signature. Held: This document was not "under hand". The Lord Justice-Clerk said: "According to the normal acceptation of the words, a document "under my hand" means a document signed (i.e., subscribed) by me; and an informal document "under my hand" means a document signed by me which is defective either in form or expression, or in solemnities of authentication, or in both. For the purpose of determining whether a document is "under the hand" of the granter, the signature is more than a mere formality or solemnity, and its unique significance as the recognised and indispensable token of deliberate authorisation of a written document, whether formal or informal, has long been accepted by common usage. In this context the word "hand" is a synonym for "signature," as in the once familiar phrases of the older testing clause "As witness my hand," or "I have hereto set my hand," and the term is still found in modern statutory phraseology in the references in the Stamp Acts to instruments and agreements "under hand only." It is, of course, possible for a testator to make it plain that he is using this, or any other, expression in a special sense, and in such a case the settlement will provide its own vocabulary, and the special sense will prevail. But in the ordinary case the words used must receive their ordinary significance."
1 Citers


 
Duke of Marlborough v Attorney General [1945] Ch 78
1945


Trusts
The proper law of a marriage settlement "can only be the law by reference to which the settlement as made and which was intended by the parties to govern their rights and liabilities". Though the governing law may be changed with the concurrence of the beneficiaries, it is not changed merely by a change in circumstances such as a change in the trusteeship.
1 Citers



 
 Picken v Lord Balfour of Burleigh; CA 1945 - [1945] Ch 90
 
Re Roberts [1946] 1 Ch 1
1946


Trusts

1 Citers


 
Re Ames' Settlement; Dinwiddy v Ames [1946] 1 All ER 689; [1946] Ch 217; 115 LJ Ch 344; 175 LT 222; 62 TLR 300; 90 Sol Jo 188
1946


Trusts, Family
The intended husband's father in 1908 settled a sum payable within one year after the marriage on standard marriage settlement trusts. The marriage took pace, but was several years lter annulled. On the wife's petition. After the settlor's later death, the husband continued to receive the sums under the settlement. Held; The marriage having been annulled, there had been a total failure of consideration, the trusts were void ab intio, and all the sums were held un trust for the settlor's executors.

 
In Re Brockbank [1948] Ch 206; [1948] 1 All ER 287
1948

Vaisey J
Trusts
A new trustee was to be appointed. The beneficiaries, all of full age and capacity wanted the remaining trustee to appoint someone they nominated. The trustee purported to exercise the discretion given to him in the trust deed and appointed someone else. Held: The court would not interfere in the exercise of a discretion properly exercised by a trustee. "It is said that where all the beneficiaries concur, they may force a trustee to retire, compel his removal and direct the trustees, having the power to nominate their successors, to appoint as such successors such persons or person corporate as may be indicated by the beneficiaries, and it is suggested that the trustees have no option but to comply. I do not follow this. The power of nominating a new trustee is a discretionary power, and in my opinion is no longer exercisable and indeed can no longer exist if it has become one of which the exercise can be dictated by others."
Trustee Act 1925
1 Citers


 
In re Rogers' Question [1948] 1 All ER 328
1948


Trusts

1 Citers


 
Bannister v Bannister [1948] 2 ALL ER 137
1948


Landlord and Tenant, Trusts
A claim that the owner had agreed to let the occupier live in a cottage rent free for as long as she wished was treated as a claim based on constructive trust, on the basis that the purchaser fraudulently set up "the absolute character of the conveyance . . for the purpose of defeating the beneficial interest"
Settled Land Act 1925
1 Citers


 
Buttle v Saunders [1950] 2 All ER 193
1950
ChD
Wynn-Parry J
Trusts
Trustees for sale had struck a bargain for the sale of trust property but had not bound themselves by a legally enforceable contract. Held: They had a duty to consider and explore a better offer that they received, and not to carry through the bargain to which they felt in honour bound.
Wynn-Parry J said: "It is true that persons who are not in the position of trustees are entitled, if they so desire, to accept a lesser price than that which they might obtain on the sale of property, and not infrequently a vendor, who has gone some lengths in negotiating with a prospective purchaser, decides to close the deal with that purchaser, notwithstanding that he is presented with a higher offer. It redounds to the credit of a man who acts like that in such circumstances. Trustees, however, are not vested with such complete freedom. They have an overriding duty to obtain the best price which they can for their beneficiaries. It would, however, be an unfortunate simplification of the problem if one were to take the view that the mere production of an increased offer at any stage, however late in the negotiations, should throw on the trustees a duty to accept the higher offer and resile from the existing offer. For myself, I think that trustees have such a discretion in the matter as will allow them to act with proper prudence. I can see no reason why trustees should not pray in aid the common-sense rule underlying the old proverb: 'A bird in the hand is worth two in the bush.' I can imagine cases where trustees could properly refuse a higher offer and proceed with a lower offer. Each case must, of necessity, depend on its own facts."
1 Citers


 
Newgrosh v Newgrosh Unreported, June 28, 1950
28 Jun 1950


Trusts

1 Citers


 
In Re Vestey's Settlement [1951] Ch 209
1951
ChD
Harman J
Trusts
The income of a fund was to be held on trust for the support or benefit of the members of a class as the trustees might decide in their discretion. The trustees resolved in each of three successive periods to distribute part of the income to certain adult beneficiaries and declared the balance to belong to infant beneficiaries in specified shares. The minute of each resolution went on to record that the trustees were of the opinion that none of the income falling to infant beneficiaries under the resolution was required for the maintenance of the beneficiaries and accordingly they resolved that the income should be accumulated under section 31 of the Trustee Act 1925. In this, the trustees had had regard to the fact that if income were distributed it would be subject to surtax whereas if it were accumulated it would not be taxed in that way. They came to doubt whether what they had done had been effective as they had intended, and they brought proceedings to have the position clarified, joining the adult beneficiaries and the infant beneficiaries as defendants. Held: The allocation of the income to the infants for accumulation was not a valid exercise of the power conferred by the settlement.
Trustee Act 1925 31
1 Citers



 
 Jones v Maynard; 1951 - [1951] Ch 572
 
In Re Vestey's Settlement [1951] Ch 220
2 Jan 1951
CA
Sir Raymond Evershed MR, Asquith and Jenkins LJJ
Trusts
The trustees of a large settlement made by Lord Vestey and his brother Sir Edmund Vestey exercised their discretion over the allocation of income with the apparent intention of income being accumulated during the minorities of a number of beneficiaries. They set out to do this by a sort of "framework" resolution that income should "belong" to the minor beneficiaries in specified shares, followed by further half-yearly resolutions to the effect that income was not required for the beneficiaries' maintenance, and should therefore be accumulated under section 31 of the 1925 Act. The difficulty was that the language of section 31 did not really fit such a situation. The infant beneficiaries appealed against a finding that the resolutions were ineffective. Held: The allocation of the balance of the income to the infant beneficiaries was valid under the power in the settlement, as an application of the income for their benefit, but that this made the income the absolute property of the relevant beneficiaries, and the power to accumulate under section 31 therefore did not apply. That then raised the question whether, because of the erroneous belief that the income would fall to be accumulated, the allocation of the income to the infant beneficiaries was valid and effective at all.
Sir Raymond Evershed MR said that the issue was whether the court should hold: "that there has been no effective exercise of the discretion on the ground that the trustees intended to undertake this operation on the footing that they were producing a specific result, and that, if they produced a wholly different result, it would not be right to say that they had exercised their discretion."
Shortly after that he said that the question had to be decided having regard to the terms of the resolutions as a whole. His conclusion was that the allocation of funds to the infant beneficiaries was the essence of the operation, and that the reference to accumulation was no more than setting out "the mechanical results which had to be applied". He said: "I do not think that it can or ought to be said that if, as I hold, the trustees wrongly thought that section 31 would operate, then a result is produced substantially or essentially different from that which was intended."
Trustee Act 1925 31
1 Cites

1 Citers


 
Reading v Attorney General [1951] AC 507; [1951] 1 All ER 617; [1951] 1 TLR 480; 95 Sol Jo 155; [1951] UKHL 1
1 Mar 1951
HL
Viscount Jowitt LC, Lord Porter, Lord Normand, Lord Oaksey
Agency, Armed Forces, Trusts
The applicant had been a sergeant in the army. He had misused army property and his uniform to assist in smuggling operations. After serving his sentence he now sought repayment of the money he had earned. Held: His claim failed. The money had been earned by his msuse of his official position, and therefore his employer was entitled to keep the money even though it had been earned unlawfully. The soldier owed a fiduciary duty to the Crown, which was an additional ground on which he lost his claim.
1 Citers

[ Bailii ]

 
 Pallant v Morgan; ChD 1952 - [1953] Ch 43; [1952] 2 All ER 951
 
Re Astor's Settlement Trusts; Astor v Scholfield [1952] Ch 534; [1952] 1 All ER 1067; [1952] 1 TLR 1003
1952
ChD
Roxberg J
Trusts
Roxberg J said: "if the purposes are valid trusts, the settlors have retained no beneficial interest and could not initiate [proceedings]." One cannot generally have a trust without a beneficiary or, at least a person who can move the court to enforce the trust: "This seems to me to be good equity and good sense."

 
Mackay and others v Macleod and others Unreported, 10 January 1952
10 Jan 1952

Lord Guthrie, Lord President Cooper
Scotland, Trusts
The court had to determine the nature and constitution of the Free Presbyterian Church of Scotland from the provisions of a Deed of Separation, together with certain documents specified in that deed. Held: The court was constrained to that document for its interpretation. "Seceders secede at their peril". Lord President Cooper: "The pleadings and the arguments of counsel in this case have ranged over a very wide and highly contentious field, and it was represented to us, at least from one side of the Bar, that the purpose of this litigation was to secure a decision on a matter of principle of grave concern to the Free Presbyterian Church of Scotland. In these circumstances, I deem it necessary to re-affirm at the outset the limited jurisdiction which alone a civil court can be required to exercise in a case of this kind. . . . In form and in substance the single controversy which we are invited to resolve relates to a matter of patrimonial right. It arises in a competition between two parties, each claiming to be the beneficiaries entitled to certain trust property. The trust is so expressed as to make the beneficial right dependent upon adherence by the beneficiary to the constitution and whole standards of the Free Presbyterian Church of Scotland as set forth in specified documents. In such a case it is the duty of the court to take cognisance of relevant matters of belief, doctrine and church government for the purpose, but only for the purpose, of informing themselves as to the essential and distinguishing tenets of the church in question, and of discovering the differences, if any, which can be detected in the principles to which the competing claimants respectively profess adherence. For us all such matters are matters of pure fact, which we investigate with the limited object of enabling us to apply the provisions of the trust; and it is not our province to form, still less to express, any view of our own upon the truth, reasonableness, propriety or relative importance of the various doctrines, standards, or matters of ecclesiastical polity to which our attention may be directed, nor to decide any question of ecclesiastical principle which is not inseparable from the question of patrimonial right. I refer to the series of authoritative decisions beginning with Craigdallie 1 Dow 1 and ending with The Free Church case 7 F. (H.L.) 1, in all of which the courts have stressed their reluctance to embark upon an investigation of this kind except to that limited extent and with that limited purpose ..."
1 Citers



 
 Dundee General Hospital Board of Management v Bell's Trustees; HL 26-Mar-1952 - [1952] 1 All ER 896; [1952] UKHL 3

 
 In re Gestetner; ChD 1953 - [1953] Ch 672; [1953] 1 All ER 1150

 
 Re George Whichelow Ltd; Bradshaw v Orpen; 1953 - [1954] 1 WLR 5; [1953] 2 All ER 1558

 
 Otter v Church Adams Tatham and Co; ChD 1953 - [1953] Ch 280

 
 Rimmer v Rimmer; 1953 - [1953] 1 QB 63

 
 In re Downshire Settled Estates; CA 1953 - [1953] Ch 218

 
 Re Deans; 1954 - [1954] 1 WLR 332
 
Chapman v Chapman [1954] AC 429; [1954] UKHL 1; [1954] 1 All ER 798; [1954] 2 WLR 723
25 Mar 1954
HL
Lord Simonds LC
Trusts
It was suggested to the House that: "A judge of the Chancery Division of the High Court of Justice has an inherent jurisdiction, in the execution of the trusts of a settlement, to sanction, on behalf of infant beneficiaries and unborn persons, a rearrangement of the trusts of that settlement for no other purpose than to secure an adventitious benefit, which may be and in the present case, is that estate duty, payable in a certain event as things now stand, will, in consequence of the rearrangement, not be payable in respect of the trust funds." Held: The appeal failed. Lord Simonds LC said: "It is not the function of the court to alter a trust because alteration is thought to be advantageous to an infant beneficiary. It was, I thought, significant that counsel was driven to the admission that since the benefit of the infant was the test, the court had the power, though in its discretion it might not use it, to override the wishes of a living and expostulating settlor, if it assumed to know better than he what was beneficial for the infant. This would appear to me a strange way for a court of conscience to execute a trust. If, then, the court has not, as I hold it has not, power to alter or rearrange the trusts of a trust instrument, except within the limits which I have defined, I am unable to see how that jurisdiction can be conferred by pleading that the alteration is but a little one."
Trustee Act 1927 57
1 Cites

1 Citers

[ Bailii ]

 
 Re Shephard, Shephard v Cartwright; HL 1-Dec-1954 - [1954] UKHL 2; [1955] AC 431; [1954] 3 All ER 494
 
Bull v Bull [1955] 1 QB 234
1955
CA
Devlin J, Denning LJ
Land, Trusts
The parties were mother and son who had purchased a property as joint tenants. The son contributed a greater part of the purchase price. The son then married, and agreements were reached as to occupation of different parts of the house. When those arrangements fell through, the son sought possession of the house. Held: Neither of joint tenants is entitled to exclude the other from occupation of the property held as joint tenants at law. However, the joint tenancy was created for a particular purpose, and an order for sale was refused where the effect would be to defeat that purpose. The parties had intended at the time the house was bought that the property would be tenants in common.
Denning LJ: "The son is, of course, the legal owner of the house, but the mother and son are, I think, equitable tenants in common. Each is entitled in equity to an undivided share in the house, the share of each being in prportion to his or her respective contribution. Each of them is entitled to the possession of the land and to the use and enjoyment of it in a proper manner. Neither can turn out the other; but, if one of them should take more than his proper share, the injured party can bring an action for an account. If one of them should go so far as to oust the other, he is guilty of trespass.
Since 1925 there has been no such thing as a legal tenancy in common. All tenancies in common now are equitable only and they take effect behind a trust for sale (s36(4) of the Settled Land Act 1925). Nevertheless, until a sale takes place, these equitable tenants in common have the same right to enjoy the land as legal tenants used to have.
My conclusion, therefore, is that when there are two equitable tenants in common, then, until the place is sold, each of them is entitled concurrently with the other to the possession of the land and to the use and enjoyment of it in a proper manner and that neither of them is entitled to turn out the other."
Settled Land Act 1925 36(4)
1 Citers



 
 Baddeley (Trustees of the Newtown Trust) v Inland Revenue Commissioners; HL 17-Feb-1955 - [1955] UKHL 1; [1955] AC 572; [1955] 1 All ER 525
 
Hawkesley v May [1956] 1 QB 304
1956

Havers J
Trusts
The trustees under a deed of settlement had a duty to inform a beneficiary, on his attaining 21, that he had an interest in the capital and income of the funds of the trust. Havers J said: "A fortiori, if the trustees did not hand over to the plaintiff on attaining 21 income to which he was entitled, it would be their duty to explain to him that he was entitled to call for and have the interest paid to him".


 
 Grey and Another (Hunter's Nominees) v Inland Revenue Commissioners; CA 1958 - [1958] Ch 690
 
Prescott v Fellowes [1958] P 260
1958
CA
Romer LJ
Family, Trusts
The court considered whether a deed of trust created a post nuptial settlement within the 1950 Act: "Inasmuch as the deed vested no property in trustees and created no successive legal or beneficial interests it had none of the attributes of a settlement which are familiar to conveyancing practitioners. It has, however, long since been established by decisions which are binding on this court that a disposition of property may a "settlement" for the purposes of section 25 of the Matrimonial Causes Act 1950, notwithstanding that it would not be regarded as a settlement of property for any other purpose. The liberality with which this legislation has been construed is sufficiently exemplified by Bosworthick v. Bosworthick. In that case a wife executed, a few years after her marriage, a bond which secured to her husband an annuity for his life. The marriage was dissolved in 1925 and the wife applied to the court for an order extinguishing her liability under the bond. This court, affirming the decision of Lord Merrivale P., held that the bond was a post-nuptial settlement for the purposes of section 5 of the Matrimonial Causes Act, 1859, and section 192 of the Supreme Court of Judicature (Consolidation) Act, 1925; and the wife's application succeeded. In the course of his judgment Romer J., who was sitting as a member of this court, said that the authorities established "that where a "husband has made a provision for his wife, or a wife for her husband, in the nature of periodical payments, that amounts to a settlement within the meaning of the sections. That may appear to be a very liberal construction of the sections, but I think that it is no more liberal a construction than should be given to them having regard to the obvious purposes for which they were enacted by the legislature."
Matriimonial Cause Act 1950
1 Citers


 
In Re Pilkington's Will Trusts; Pilkington v Inland Revenue Commissioners [1959] 1 Ch 699
1959
ChD
Danckwerts J
Trusts
Whether Trust was void for perpetuity
1 Citers


 
Re Cohen's Will Trusts [1959] 1 WLR 165
1959
ChD

Trusts
An application was made for the variation of trust provisions on behalf of a child beneficiary. Held: Where the outcome of the arrangement cannot be predicted with certainty then the Court should be prepared to take on behalf of a minor, a risk which an adult would be prepared to take
1 Citers


 
Leahy v Attorney-General of New South Wales [1959] AC 457; [1959] UKPC 1; [1959] UKPC 9
20 Apr 1959
PC
Viscount Simonds
Trusts, Commonwealth
A gift to an unincorporated association simpliciter, i.e. where neither the circumstances of the gift nor the directions given nor the object expressed impose on the donee the character of a trustee, is nothing else than a gift to its members at the date of the gift as joint tenants or tenants in common.
Where a trust is for a non-charitable purpose and does not have a beneficiary, it fails "for a purpose or object cannot sue . . to enforce it"
Viscount Simonds said: "But, though their Lordships are of opinion that the section may operate where there is a composite expression covering charitable and non-charitable purposes, and does so in the present case, it is clear that not every expression which might possibly justify a charitable application is brought within it. For instance, in In re Hollole there was a gift to a trustee 'to be disposed of by him as he may deem best'. The trustee might presumably have deemed it best to dispose of it for a charitable purpose, and, if he had done so, could not be said to have exceeded his powers. Yet O'Bryan J held that the gift was not saved by the section, and his decision has been rightly approved in the High Court. This was a clear case because the testator did not designate any purpose at all but in effect delegated his testamentary power in a manner that the law does not permit. Greater difficulty will arise where the permissible objects of choice are described in a composite expression which, though not so vague and general as to amount to a delegation of testamentary power, does not very clearly indicate a charitable intention on the part of the testator. 'In the present case,' say the Chief Justice and McTiernan J, 'there is reference to a distributable class which, while not exclusively charitable, is predominantly charitable in character'. The same concept appears in a different form in the judgment of Williams J and Webb J. 'One can also agree with him' (ie., Myers J) they say 'that in order to satisfy the section the application of the whole fund to charity must be one way of completely satisfying the intention of the testator. But, if the trust either directs or allows this to be done, the testator's intention will be completely satisfied if the trust funds are so applied....' Thus whether the gift be to Orders of Nuns, an object so predominantly charitable that a charitable intention on the part of the testator can fairly be assumed, or for (say) benevolent purposes, which connotes charitable as well as non-charitable purposes, the section will apply. Inevitably there will be marginal cases, where an expression is used which does not significantly indicate a charitable intention, and their Lordships do not propose to catalogue the expressions which will or will not attract the section. It may be sufficient to say that in the chequered history of this branch of the law the misuse of the words 'benevolent' and 'philanthropic' has more than any other disappointed the charitable intention of benevolent testators and that the section is clearly designed to save such gifts."
1 Citers

[ Bailii ] - [ Bailii ]

 
 Re Endacott; CA 12-Oct-1959 - [1960] Ch 232; [1959] EWCA Civ 5; [1959] 3 All ER 562; [1959] 3 WLR 799
 
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