Re Howley; Naughton v Hegarty

• Jurisdiction: Ireland
• Judgment Date: 12 December 1940
• Date: 12 December 1940
• Court: High Court

In re Howley; Naughton v. Hegarty.

In the Matter of the Estate of the REV. CANON HOWLEY, Deceased; THE MOST REV. JAMES NAUGHTON

Plaintiff

and

THE REV. JOHN J. HEGARTY AND OTHERS

Defendants.

Charitable gift - Bequest of personal property to Bishop and Chapter of K. - To be administered by them as directed - Gift of £2 each to the members of the Chapter at their annual meeting each year for masses - Direction"to dispose of balance of income each year at the annual meeting of the Chapter on what . . . they consider in the best interests of religion" - Whether gift of residue void for uncertainty or remoteness or a valid charitable bequest - Whether gift for masses, although charitable, was void for remoteness - Rule against perpetuities - Whether gifts of annual payments of income to be regarded as one collective gift or several gifts - Whether Chapter of K. could be recognised as an ecclesiastical corporation or as a foreign corporation.

Construction Summons.

The plaintiff, as executor of the will of the Rev. Patrick Canon Howley, dated the 22nd day of June, 1930, brought this summons for the determination of certain questions arising thereon.

The will was in the following terms:—"I give and bequeath all the property I die possessed of to the Bishop and Chapter of the Diocese of Killala for the time being to be administered by them as follows:— They will not sell any of the shares I own at the time of my death but will transfer them to the names of the said Bishop and Chapter. They will dispose of the yearly income accruing from the shares at the annual meeting of the Chapter as follows:—They will give a yearly income of [specified amounts to each of five persons during his or her lifetime, as set out in paragraphs (a) (b) (c) (d)and (e) of the will.] (f) They will give £2 each to the members of the Chapter at their annual meeting each year to say eight masses each for the repose of my soul and that of my friends and benefactors, the masses to be said each year in public. (g), They will dispose of the balance of the income each year at the annual meeting of the Chapter on what in their united wisdom they consider the best interests of religion. I appoint the said Bishop and Chapter my executors."

The following questions were submitted upon the provisions in the will relating to the bequest for masses and the application of the income:—1. Whether the bequests of "£2 each to the members of the Chapter at their annual meeting each year to say eight masses each for the repose of my soul and that of my friends and benefactors, the masses to be said each year in public,"were valid charitable bequests, or whether they failed to any, and what extent? 2. If such charitable bequests for masses were charitable bequests were they perpetual or for a limited period and for what period? 3. Whether the bequest of the balance of the income each year was a valid charitable bequest? 4. If such charitable bequest of the balance of the income each year was a valid charitable bequest was it perpetual or for a limited period and for what period?

The evidence given as to the constitution of the Chapter of Killala is sufficiently stated for the purpose of this report in the judgment of Gavan Duffy J.

Testator bequeathed all his property (which consisted of pure personalty only) to the Bishop and Chapter of the Diocese of K. for the time being to be administered by them as he directed. After the direction to pay certain annual sums to beneficiaries for life, testator directed the said Bishop and Chapter that they should "give £2 each to the members of the Chapter at their annual meeting each year to say eight masses each for the repose of my soul and that of my friends and benefactors." He also directed the Bishop and Chapter "to dispose of the balance of the income each year at the annual meeting of the Chapter on what in their united wisdom they consider in the best interests of religion."

Held that the gift of the balance of the income was not void for uncertainty or for remoteness but was a valid charitable gift, the words of the will indicating that a distribution was to be made by persons in succession as holders of a particular religious office, the Court adopting the dictum of Cozens-Hardy M.R. in In re Davidson,Minty v. Bourne,(1909] 1 Ch. 567,at p. 569.

MacLaughlin v. Campbell, [1906] 1 I. R. 588, and Dunne v. Byrne,[1912] A. C. 407, distinguished.

Dictum in Cocks v. Manners, 12 Eq. 574, doubted in its application to this country.

Held further, that the bequest for masses—£2 each to the members of the Chapter—was intended as one general gift for masses and was a valid charitable gift, not void for remoteness.

Query: Whether the Chapter of the Diocese of K. could be recognised as an ecclesiastical corporation or as a foreign corporation.

Cur. adv. vult.

Gavan Duffy J.: —

The late Very Rev. Patrick Canon Howley P.P., died on the 6th of April, 1937; by his will, dated the 22nd of June, 1930, he left all his property to the Bishop and Chapter of Killala for the time being; he directed them to dispose of the yearly income from his "shares," which I hold to include certain stock, at the annual meeting of the Chapter, by giving specified yearly sums (paragraphs (a) to (e)) to certain persons for life, and by giving (f)"£2 each to the members of the Chapter at their annual meeting each year to say eight masses for the repose of my soul and that of my friends and benefactors," and by disposing (g) of "the balance of the income each year at the annual meeting of the Chapter on what in their united wisdom they consider the best interests of religion."I understand that the testator left pure personalty only.

The Most Rev. Dr. James Naughton, the Bishop of the Diocese of Killala, has alone proved the will, on the true construction of which I hold that the Bishop and his successors and the Chapter of the Diocese as a corporate body were appointed trustees as well as executors. I shall return to the legal effect of this appointment of trustees.

The principal question is whether the gift of residue is void for uncertainty and for remoteness.

I hold the gift to be charitable and valid.

The two chief authorities cited against this view are the decisions of O'Connor M.R. and the Court of Appeal in Ireland in MacLaughlin v. Campbell(7), and the opinion of the Judical Committee of the Privy Council in England in Dunne v. Byrne(8).

In the Irish case a gift "for such Roman Catholic purposes" as trustees deemed fit and proper was held

not to be charitable, because the gift was not in terms made for religious purposes and because the purposes thus authorised by the will were much wider than the religious purposes of the Catholic Church; but it was recognised in the Court of Appeal, particularly by Holmes L.J., that a gift for the purposes of the Catholic Church is charitable.

Dunne v. Byrne (1) is much nearer the present case; there was a residuary gift by Father Byrne, a Catholic priest, "to the Roman Catholic Archbishop of Brisbane and his successors, to be used and expended wholly or in part as such Archbishop may judge most conducive to the good of religion in this diocese"; the Supreme Court of Queensland had held unanimously that the gift was charitable, upon the "overwhelming" authorities in support of the rule laid down in In re White(2) to which I shall recur; the High Court of Australia, by a majority of three to two, reversed this decision, mainly on the ground, rejected in the Privy Council, that the Archbishop might spend part of the money on non-charitable objects. The Judicial Committee held the established rule for construing gifts for religious purposes as prima facie charitable not to apply to a gift which, instead of being made for"religious purposes," was to be spent as the Archbishop might judge most conducive to the good of religion in the diocese, since...