Attorney-General v Henry Becher and Charles F. Becher

Judgment Date23 February 1910
Date23 February 1910
CourtKing's Bench Division (Ireland)
Henry Becher and Charles F. Becher (1).

K. B. Div.











Charity — Bequest to Society for Conversion of Roman Catholics in Ireland — Purposes merely charitable — Legacy duty — Exemption — 5 & 6 Vict. c. 82, s. 38.

A testatrix, domiciled in Ireland, bequeathed a legacy to the Society for Irish Church Missions. The object of this Society, which had its head office in London, was “to promote the glory of God in the salvation of the souls of our Roman Catholic fellow-subjects in Ireland, through the instrumentality of the Church of Ireland.”

Held, that the legacy was for purposes in Ireland merely charitable, and was therefore exempt from legacy duty.

Information by the Attorney-General claiming legacy duty.

The material facts as admitted by the pleadings and otherwise were as follows:—

By her will, dated the 4th December, 1903, Elizabeth Mary Stewart, late of Stonehenge, Killiney, in the County of Dublin, spinster, bequeathed (inter alia) to the “Irish Church Missions” a sum of £100, and appointed the defendants the executors of her will. She died on the 28th December, 1906, and probate of her said will was on the 21st March, 1907, granted to the defendants, the executors named therein.

After the testatrix's death, the Commissioners of Inland Revenue claimed from the defendants, as her executors, legacy duty at the rate of 10 per cent. in respect of the said legacy, pursuant to the provisions of 5 & 6 Vict. c. 82. The defendants refused to pay the legacy duty claimed, contending that the legacy was exempt from duty under the provisions of section 38 of 5 & 6 Vict. c. 82.

The information prayed (infer alia) to have it declared that legacy duty at the rate of 10 per cent. became payable after the

death of the testatrix in respect of the said legacy, and that the defendants might be ordered to pay the sum of £10 to the Commissioners of Inland Revenue in respect of such duty.

The object of the Society for Irish Church Missions, as set forth in its annual published reports, is “to promote the glory of God in the salvation of the souls of our Roman Catholic fellow-subjects in Ireland, through the instrumentality of the Church of Ireland.” The head office of the society is in London.

The Attorney-General (The Right Hon. Redmond J. Barry, K.C.) (with him Coll), in support of the information:—

It will scarcely be contended that the legacy in the present case comes under either of the first two exemptions in section 38 of 5 & 6 Vict. c. 82, and, therefore, the principal question for decision is, Do the objects of the Society for Irish Church Missions come within the description of purposes merely charitable? We admit that since the decision of the House of Lords in Commissioners for Special Purposes of Income Tax v. Pemsel (1) it cannot be contended that the idea of relief of the poor is essential to constitute a charitable purpose. We submit, however, that the fundamental notion of charity in its legal sense is the public benefit. In Pemsel'sCase (1) Lord Macnaghten states (p 583) that “charity” in its legal sense comprises four principal divisions: trusts for the relief of poverty, trusts for the advancement of education, trusts for the advancement of religion, and trusts for other purposes beneficial to the community not falling under any of the preceding heads; thus showing that charity in its legal sense involves in every case the idea of benefit to the community. In Cocks v. Manners (2) Sir John Wickens, V.-C., says (p 585):— “It is said, in some of the cases, that religious purposes are charitable; but that can only be true as to religious services tending directly or indirectly towards the instruction or edification of the public.” It is for the Court to determine whether the object is for the public benefit or not; that it is so in the opinion of the testator is not sufficient. The test to be applied

is an objective, not a subjective one. In Attorney-General v. Hall (1) a bequest to a Roman Catholic priest to be applied for Masses to be celebrated publicly for the repose of the testator's soul, was held charitable, the ground of decision being the public edification which, according to the Roman Catholic faith, resulted. In giving judgment in the Exchequer Division, Andrews, J., says (p. 315) that if the religious purpose be of a nature which in the judgment of the Court confers in its execution a benefit on the public, or a denomination of the public, by tending to their religious edification, it is a valid charitable purpose within the section. In Attorney-General v. Delaney (2) a bequest for Masses for the soul of testatrix and her brother, there being no direction to celebrate them in public, was held not to be charitable, the Court being of opinion that such a bequest did not tend, either directly or indirectly, to the benefit of the public. Palles, C.B., says (pp. 126, 127): “I am of opinion that a gift for a religious or for any other purpose, to be charitable within the statute of Elizabeth, must, to some extent at least, be in the nature of a general public use. It must be of such a nature that the Court can determine that its execution shall confer a benefit upon the public, or upon some section of the public.” That case was, no doubt, subsequently over-ruled by O'Hanlon v. Logue (3); but the decision of the Court of Appeal (which included Palles, C.B.) in the latter case went on the ground that, on further consideration of the nature of a Mass, the Court was satisfied that according to the faith of the Roman Catholic Church there was a public benefit to the general body of the faithful, even though the Mass was not celebrated in public. In Webb v. Oldfield (4) Fitz Gibbon, L.J., lays down (p. 446) that the benefit must be one which the founder believes to be of public advantage, and his belief must be at least rational; thus showing that the belief of the testator is not conclusive, but the reasonableness of that belief is to be determined by the Court. Walker, L.J., says (p. 450) that there may be cases in which the Court would feel itself at liberty to set up its own view against that of the giver [Gibson, J., referred to Thornton v. Howe (1)]. The basis of the judgment in that case is, that the works of Joanna Southcott were written with a view to extending the influence of Christianity. In the present case it cannot be said that the bequest is for the public benefit. All Christian religions are in this country now equal in the eye of the law, and therefore to convert a person from one form of Christian religion to another can never be considered as being for the public benefit. So far from being productive of public benefit, the objects of this Society are calculated to cause strife between different sects of Christians. The Society itself obviously considered its objects not within any of the exemptions, having paid duty on all legacies up to the present.

Secondly, even assuming that the purposes of the Society are charitable, these purposes are not confined to Ireland, and the case is not within the exemption: Attorney-General v. Hope (2). The head office is in London, and the funds of the Society need not necessarily be spent in Ireland.

S. L. Brown, K.C., and Poole, for the defendant:—

The test of whether an object is for the public benefit or not is the belief of the testator, and the Court will not inquire whether that belief is right or wrong, but will accept it as conclusive, subject to four limitations:—1. The object must not be adverse to the foundation of all religion. 2. It must not be subversive of all morality. 3. It must not be contrary to the general law of the land. 4. The belief of the testator must be rational: Thornton v. Howe (1); Webb v. Oldfield (3); per FitzGibbon, L.J. (pp. 446,447). A rational belief must be taken to mean not necessarily a belief which is, in the opinion of the Court, well founded, but one which a rational person might hold. In the present case the bequest is clearly not adverse to all religion or morality; it is not contrary to the general law of the land; and the Court, although it might not itself hold the objects to be for the public benefit, cannot say that a rational person might not hold such belief. In In re Foveaux

(1), Chitty, J., in holding a bequest to certain societies for the suppression of vivisection to be charitable, says (p. 507):— “The purpose of these societies, whether they are right or wrong in the opinions they hold, is charitable in the legal sense of the term. The intention is to benefit the community; whether, if they achieved their object, the community would, in fact, be benefited is a question on which I think the Court is not required to express an opinion.” It has been contended that because the object is of a proselytising character this gift cannot be charitable. But in West v. Shuttleworth (2) a bequest to Roman Catholic priests to promote the knowledge of the Roman Catholic religion among the poor and ignorant inhabitants of certain districts in Yorkshire was held charitable, although there, as was pointed out in the argument, the object must have been to make proselytes. In In re Delmar (3) a gift “to the Protestant Alliance, or some one or more kindred institutions, having for their object the maintenance and defence of the doctrines of the Reformation, and the principles of civil and religious liberty against the advance of Popery,” was admitted to be charitable. [They also referred to In re Scowcroft (4), Attorney-General v. Bagot (5).]

As regards the second point, the testatrix was an Irishwoman, who died domiciled in Ireland, and the object of the Society is the salvation of souls in Ireland. The legacy, therefore, is for purposes in Ireland.

The Attorney-General in reply.

Cur. adv. cult.

The Attorney-General...

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