Miley v Attorney-General

CourtCourt of Appeal (Ireland)
Judgment Date25 February 1918
Date25 February 1918
Daniel O'Connell Miley and Valentine Miley
His Majesty's Attorney-General for Ireland and Mary Teresa Rooney (1).












Charity — Gift to — Charitable purpose not specifically impressed — Bequest to College of Surgeons — Objects of College — Legacy payable out of realty (7 & 8 Vict. c. 97), s. 16.

A testatrix devised and bequeathed all her property to her trustees upon trust for sale, and for the payment of legacies, including a legacy of £500 “to the Royal College of Surgeons in Ireland.” The testatrix died four days after the execution of her will, leaving real and personal estate.

Held (affirming the judgment of Barton J.), that as the College of Surgeons was incorporated with two main objects, namely, the promotion of the science of surgery, and the promotion of the interests of those practising the profession of surgery, the latter not being a charitable object, and as the testatrix did not specifically impress her gift with a charitable purpose, the bequest was not one for charitable uses within the meaning of 7 & 8 Vict. c. 97, s. 16, and was accordingly not void though in part payable out of realty.


By her will, dated the 29th March, 1917, Anna Maria Read devised and bequeathed all her property of every kind to the plaintiffs, whom she appointed her trustees and executors, upon trust to sell the same (save as therein mentioned), and out of the proceeds to pay certain legacies, including “To the Royal College of Surgeons in Ireland £500.” The testatrix died on the 4th of April, 1917, her property consisting of real estate valued at £5800, and personal estate valued at £417. The present summons was brought by the plaintiffs as executors and trustees of the will for the determination of a number of matters arising under the will, including the question “whether the bequest of £500 to the College of Surgeons in Ireland is a charitable bequest.”

Mr. Justice Barton having answered this question in the negative, the present appeal was brought by the defendant, Mary

Teresa Rooney, the residuary legatee and devisee named in the will.

The only evidence before the Court as to the nature and constitution of the College of Surgeons consisted of the Calendar of the college (1), containing the charters of Geo. 3 (1784), Geo. 4 (1828), Victoria (1844, 1883, and 1885), and the bye-laws of the college. It is sufficient to state here that the Court was of opinion that the charters demonstrated that the college was incorporated not only for the promotion of the science of surgery, but also for the discipline and benefit of the members of the profession themselves.

FitzGibbon K.C. and O'Byrne, for the appellant:—

We contend that this should be held a charitable bequest, and as the testatrix died within three months from the date of the will, the bequest fails so far as payable out of the realty.

Barton J. has placed too much reliance on In re Royal College of Surgeons in England (2), where it was held that the college was not entitled to exemption from the duty imposed by sect. 11 of the Customs and Inland Revenue Act, 1885. That case, however, turned upon the words of the exempting clause contained in that Act, and the decision in no way rules the present case. The judgment of Lord Herschell in Commissioner of Inland Revenue v. Scott, In re Bootham Ward Strays, York (3), establishes that the words “charitable purposes” in the Act of 1885 are not used in a wide sense, but bear a strictly limited meaning; and Commissioners of Income Tax v. Pemsel (4) was distinguished. It is said that the college pays rates on their premises, but that is immaterial to the present question. In O'Neill v. Commissioner of Valuation (5), Palles C.B., referring to the three different classes of exempted hereditaments under 17 Vict. c. 8, s. 2, said— “The mere enumeration of these three different classes tends to show that charitable purposes cannot be read in its general or unrestricted sense as used in the English statute of Elizabeth and the Irish statute of Charles.”

Again, at p. 469 he says— “It is impossible to hold that ‘charitable’ in this section is used in the general sense in which it was read by the Courts when determining whether gifts were void as violating the law against perpetuities.” The wide construction placed by the Courts upon the words “charitable uses” in 7 & 8 Vict. c. 97, s. 16, is shown by the authorities collected in this case. In Smith v. Kerr (1) it was held that property granted to the Society of Clifford's Inn “for the good of the gentlemen of the Society and for the benefit of the Commonwealth” was held upon trust for charitable purposes, inasmuch as one of the functions fulfilled by an Inn of Chancery was the maintenance of schools of learning. The maintenance of such schools is also one of the main functions of the College of Surgeons in Ireland. The charters of the college show clearly that it was incorporated with a view to promoting the welfare of mankind by making due provision for “a sufficient number of properly educated surgeons, as well for the service of the public in general as for that of our army and navy.” A bequest to such an institution must be charitable in its nature; and it is not open to the college to say that this result is avoided by their devoting the money to some purpose other than a charitable one.

Jellett K.C. and Morgan Byrne, for the College of Surgeons:—

This is a simple bequest of £500 to the college, which is not impressed with any charitable object, and the bequest cannot be said to come within the words of sect. 16 unless the college itself is so constituted as to render the bequest to it necessarily one of a charitable nature. There is no trust or contract affecting the bequest, and no one can be heard to discuss the probable uses to which the legacy will be put: see judgment of Lord Dunedin in Bowman v. Secular Society, Ltd. (2). The college, “being capable of acquiring property by gift, takes what has been given to it … as absolute beneficial owner”: see judgment of Lord Parker in Bowman'sCase (3); Attorney-General v. Haberdashers' Company (4). In Smith v. Kerr (1) the deed itself declared the trusts. If the Court is entitled to look to the objects for which

the college was incorporated, it is clear that these objects include many which it is impossible to consider as charitable, including the due discipline of members of the profession, and the advancement of their interests. This distinction was clearly recognized in In re Royal College of Surgeons in England (1): see judgment of Romer L.J. at pp. 877–883.

This legacy cannot be said to be in any way appropriated to the objects which might be considered charitable. That certain of the main objects of the corporation are for the benefit of mankind is immaterial. The same might be said of almost every institution; e.g., the Society of the King's Inns, or the Incorporated Law Society, which might equally as well be termed charitable associations.

FitzGibbon K.C., in reply.

Devitt, for the Attorney-General.

H. Hamilton, for the executors of the will.

[The following authorities were also referred to:—Clancy, Appellant; Commissioner of Valuation, Respondent (2); Attorney-General v. Bagot (3); Incorporated Society v. Richards (4); Sutton's HospitalCase (5).]

Cur. adv. vult.

FitzGibbon K.C. and O'Byrne, for the appellant:—

Jellett K.C. and Morgan Byrne, for the College of Surgeons:—

Sir Ignatius J. O'Brien C.:—

The question raised in this case has come before the Court in a very unsatisfactory way. When recourse is had to the provisions of Order 55 it is certainly desirable, if the question be not one of the net construction of a document, that the facts which are material for consideration by the Court should not be in controversy. In the present case, although we are aware that there is a large amount of documentary evidence in existence relating to the nature and constitution of the College of Surgeons in Ireland, neither in the Court below nor in this Court has there been an opportunity of considering much of this evidence. The affidavit on which the application was grounded could not have been more bald. The affidavit put in in reply is equally uninformative, and counsel on both sides have elected to discuss the

question in the light of the information supplied by the Calendar printed by the College of Surgeons, which contains selections from the various charters relating to that body. A similar question may arise in the future in a case where a larger amount of money may be involved, and which it might be thought advisable to bring before a higher tribunal, and I should certainly desire that it should appear in some way on the face of the record that we have arrived at our present decision on the very limited amount of information brought before us.

The question, which has been argued with much ability on both sides, is whether the bequest to the College of Surgeons contained in the will of this lady was or was not a charitable bequest. It is to be observed that she in no way ear-marked the money for a charitable purpose. If she had done so, the fact that the corporation of the College of Surgeons may have within its objects certain ones which are not charitable in their purpose would not be conclusive one way or the other. If the testatrix had impressed her gift with a charitable object, the bequest would prima facie have been a charitable bequest, and a question would then have arisen as to the legacy being void owing to the death of the testatrix a few days after she executed her will.

Now, the charters to which Mr. FitzGibbon has referred undoubtedly do contain recitals which, to some extent at least, suggest that the functions of the College of Surgeons in Ireland may be charitable in their nature. These recitals, as...

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