Re, Royal Kilmainham Hospital

• Jurisdiction: Ireland
• Judgment Date: 20 December 1966
• Date: 20 December 1966
• Docket Number: (1962. No. 1181)
• Court: High Court

(1962. No. 1181)

In re Royal Kilmainham Hospital

In the Matter of the Courts of Justice Acts, 1924-1959,And in the Matter of the Courts (Supplemental Provisions) Act, 1961, And the Royal Kilmainham Hospital, And the Royal Hospital Kilmainham Act, 1962, And in the Matter of the Charities Act, 1961, THE ATTORNEY GENERAL,Applicant, and THE BRITISH LEGION

Respondents.

Charity - Trust Royal charter - Support and maintenance of wounded, aged and infirm soldiers of royal army in Ireland - Constitutional changes - Failure of objects - Application of cy-près doctrine - Royal Hospital Kilmainham Act, 1962 (No. 7 of 1962) - Charities Act, 1961 (No. 17 of1961), s. 47.

Summary Summons.

Application on behalf of the Attorney General, pursuant to s. 4 of the Royal Hospital Kilmainham Act, 1962. In the special indorsement of claim, as amended, the applicant, as the sole trustee of the trust funds of the Royal Hospital, Kilmainham, sought an order directing the payment to the Commissioners of the Royal Hospital, Chelsea, of certain sums, representing the accrued interest on certain stocks specified in the schedule to the said Act. The applicant also sought an order directing that a scheme be directed and settled for the management and application of the said trust funds (including any balance of interest accrued thereon) for some specified charitable purposes or purpose for the benefit of all or any classes or class of members or former members of the Defence Forces. In the alternative to this relief, the applicant, as the person in whom is vested by law the administration and control of the business, powers, authorities, duties and functions of charities in the State, sought an order directing that the said trust funds be applied cy-près. By order of the Court, the respondents, the British Legion, were joined to represent the class of all persons who might be entitled to the benefit of the said trust funds, other than members or former members of the Defence Forces.

The facts have been summarised in the head-note and appear fully in the judgment of Budd J., post.

The R. Hospital, Kilmainham, was founded by Charles II for the support and maintenance of soldiers of his army and that of his successors. The Hospital was endowed with a grant of part of the royal demesne lands in the Phoenix Park. The governors of the Hospital were empowered to admit officers and soldiers of the army who should have been wounded in service or who, after seven years' service, should become aged, infirm or unserviceable. Part of the lands granted to the Hospital were acquired in the middle of the 19th century and the compensation monies in respect of the purchase thereof were lodged in Court. The Hospital provided a home and support for old soldiers of the Crown forces in Ireland. After the setting-up of the Irish Free State, the Hospital gradually ceased to function; the remaining pensioners were removed to the R. Hospital, Chelsea, and the Irish Government took over control of the lands and buildings. The Royal Hospital Kilmainham Act, 1962, ss. 2 and 3, provided for the vesting of the lands and chattel property of the Hospital in the Minister for Finance. Sect. 4 of the Act provided:—"The High Court, on application made to it by the Attorney General, may . . . (b)prepare and settle a scheme for the management and application of the trust funds (including any balance of interest accrued thereon) for some specified charitable purposes or purpose for the benefit of all or any classes or class of members or former members of the Defence Forces." The "trust funds" were described in the schedule to the Act and comprised stocks representing the compensation monies in respect of the acquisition of part of the lands granted to the Hospital as well as other funds ordered to be lodged to the credit of the Hospital in 1806. Sect. 5 of the Act provided that the Attorney General should be the sole trustee of the trust funds until the coming into operation of a scheme under s. 4 of the Act. On application to the Court on behalf of the Attorney General, pursuant to s. 4 of the Act, it was

Held by Budd J. 1, that the provisions of s. 4 of the Act were enabling and not mandatory in nature:

2, That a valid, charitable trust had been created by the foundation and endowment of the Hospital:

3, That, since 1922, there was no royal army of, or in, any political entity comprised of all Ireland which could supply the object class contemplated by the Charter which established the Hospital;

4, That, in the circumstances, the funds available should be applied cy-prèspursuant to s. 47 of the Charities Act, 1961, in accordance with a scheme to be prepared by the Examiner and settled by the Court;

5, That the respective classes comprising members or former members of the Defence Forces and ex-servicemen of the British Army, living in the Republic of Ireland or Northern Ireland, who have served, or may serve, in the British Army in Northern Ireland or abroad after 1922 and who otherwise qualify by reason of wounds, age or infirmity would be eligible for benefit as nearest objects under the scheme;

6, That, while those who had served in the British Army stationed in Ireland before 1922, and had been wounded, and those who had served for seven years in that army in Ireland or elsewhere in a regiment which had been stationed in Ireland, and had become old and infirm, were within the object class of the Charter (if they were discharged in Ireland and live in Ireland) they could, and should, be adequately provided for in the scheme.

Cur. adv. vult.

Budd J. :—

The Royal Hospital, Kilmainham (hereinafter generally referred to as "the Hospital"), was founded by Charles II in 1684 for the support and maintenance of old soldiers of his army and that of his successors who, by reason of wounds or infirmity, had become unserviceable. The foundation was made by Royal Charter and the Hospital was endowed by the King with a grant of part of the Royal demesne lands in the Phoenix Park. Part of these lands were acquired in the middle of the last century for railway construction purposes and the compensation monies in respect thereof were lodged in Court. The Hospital during its existence provided a home and support and maintenance for old soldiers of the Crown Forces in Ireland. After the setting up of the Irish Free State the Hospital gradually ceased to function, the remaining pensioners were removed to the Royal Hospital, Chelsea, and the Irish Government took over control of the lands and buildings. The Corporation of the Hospital was later dissolved. The Royal Hospital Kilmainham Act was enacted in 1962. It provided, first, for the vesting of the lands and chattel property of the Hospital in the Minister for Finance. The Act further provided that, on the application of the Attorney General, the High Court "may" order that certain payments be made to the Commissioners of the Royal Hospital, Chelsea, out of the interest accrued on the funds in Court, and also settle a scheme for some specified charitable purposes or purpose for the benefit of some classes of members or former members of the Defence Forces. A question arose during the hearing, however, as to whether the provisions of the Act in this respect were of a mandatory or of enabling nature. With this matter I deal later.

The application was duly brought by the Attorney General. The British Legion applied during the hearing to be added as respondents. It was claimed that some classes of its members had an interest in the funds as the proper beneficiaries of a

valid charitable trust created by the endowment of the Hospital and still subsisting with regard to these funds. Alternatively, if the trust had failed, the same classes had a valid claim to benefit under a cy-près application of the funds. It was submitted that these claims were not affected by the said Act on its true construction. The British Legion was added as respondent in a representative capacity and I shall deal with the reasons for this and the nature of the claim in more detail later. Counsel for the Attorney General, while not asserting that the Act of 1962 had mandatory force, contested this claim and sought primarily for an order in accordance with the provisions of the Act, and alternatively, for an order that the trust funds be applied cy-près. In order to understand the nature of the submissions made to me relative to these contentions and the reasons for my decisions thereon it is necessary to deal first with the nature and history of the foundation.

The Charter of the Hospital was preceded by a Royal Letter of Charles II under the sign manual, dated the 19th April, 1681, addressed from the Court at Whitehall to the Duke of Ormonde, Lord Lieutenant and General Governor of Ireland. It recited that the King had directed the building of a hospital for the maintenance of such aged and maimed soldiers of"Our army in Ireland" as are or should during their continuance in the said army become unserviceable and that the said hospital had already begun to be erected upon part of"Our land now enclosed in Our Park called the Phoenix Park."The King's will and pleasure was that the said land on which the hospital was then built, together with such quantity of land adjoining not exceeding 64 acres plantation measure as the Duke should think fit, should be set apart and for ever after continued for the use of the hospital. The Duke was then authorised to cause effectual letters patent to be passed under the great seal of "Our said Kingdom of Ireland" to such trustees as he should nominate and their heirs to the use of the said hospital, without rent, to the intent that when the said hospital should be finished and incorporated the lands might be conveyed by the said trustees to the said corporation and their successors for ever.

The Duke of Ormonde, following upon receipt of this letter, by warrant, dated the 23rd December, 1681, addressed to...