Re the Worth Library

• Jurisdiction: Ireland
• Judgment Date: 01 January 1995
• Date: 01 January 1995
• Docket Number: [1991 No. 616 Sp.]
• Court: High Court

In re the Worth Library

In the matter of The Trust of the Worth Library and in the matter of The Charities Acts, 1961 and 1973, The Provost Fellows and Scholars of the College of the Holy and Undivided Trinity near Dublin and Patricia Donlon

Plaintiffs

and

The Attorney General and The Eastern Health Board

Defendants

[1991 No. 616 Sp.]

High Court

Charities - Original gift - Charitable object - Advancement of learning - Pemsel categories - Education - "Other purposes beneficial to the community" - Elements - Private book collection - Gift "for the use, benefit and behoof of the Physician, Chaplain and Surgeon of the time being of said Hospitall" - Detail of testator's further directions - Dedicated room - Keys - Catalogues - Preservation - Protection - Charitable objects - Categories - Benefactor's intentions - Relevance - Public benefit - "Physician, Chaplain and Surgeon" - Education - Hospital - Statutes of Charitable Uses (43 Eliz. 1, c. 4 (Eng.) and 10 Car. 1, Sess. 3, c. 1 (Ir.)) - Health Act, 1947 (No. 28), s. 78 - State Property Act, 1954 (No. 25) - Charities Act, 1961 (No. 17), s. 51 - Health Act, 1970 (No. 1), s. 60, sub-s. 3.

Charities - Cy-près - Jurisdiction - Exercise - Circumstances - Gift - Original purposes - "Cannot be carried out according to the directions given and the spirit of the gift" - Cy-pres scheme - Competing schemes - Application - Criteria - Actual donor - Hypothetically current donor - Intentions - Spirit of the gift - Private book collection - Original housing and organisation - Preservation - Historical value - Charities Act, 1961 (No. 17), s. 47 (1) (a).

Dr. Steevens' Hospital, Dublin, originally incorporated by private Act of 1729, and containing the Worth Library collection, closed in 1988. By will made in 1723, Dr. Edward Worth, a physician and one of the original governors of the hospital, provided:—

"I further give and bequeath unto the said Trustees all my books . . . the same to be carefully preserved and kept in some convenient room of the said Hospitall when it shall be built, for the use, benefit and behoof of the Physician, Chaplain and Surgeon for the time being of the said Hospitall, who I will shall have each of them a key to the said room to resort tither when and as often as they please. But I will, direct and desire that none of the said books may be at any time removed from, or taken out of the room appointed for the custody of them, and to the end that they may be better preserved I will and direct that three catalogues may made of them written fair in three large well bound books, one whereof I will shall be kept chained in the said Library of the said Hospitall, another of them shall be kept in the Library belonging to the College of Dublin and the other shall be kept in the Publick Library at the St. Sepulchres . . ."

Further details and directions were given for annual inspections of the collection and further bequests of money made for compiling the three catalogues and fitting out the room appointed "because I would not have the said gift of the books to be a charge on the said Hospitall".

Upon the closure of Dr. Steevens' Hospital, the governors thereof removed the collection to the Old Library at Trinity College, Dublin, under the control of the first plaintiffs and the hospital was sold to the second defendant. After ascertaining the views of the first defendant, the Commissioners of Charitable Donations and Bequests for Ireland by order of the 5th February, 1991, appointed the first plaintiffs and the second plaintiff, as director of the National Library to be trustees of the Worth Library. An application by the second defendant to the High Court to annul that order of the Commissioners was refused on the 17th December, 1991. By a special summons the first plaintiffs sought an order from the High Court applying the original bequest cy-prèsto permit the book collection to be permanently transferred to the first plaintiffs, with the consent of the Attorney General. The second defendant opposed the application.

The evidence at the hearing dislocsed that the condition of the original collection was superb and unequalled due to a variety of conditions peculiar to the inception and maintenance of the library at Dr. Steevens' Hospital and that the collection of some 4,500 books, only 200 thereof being medical texts, was unique. The evidence for the plaintiffs emphasised the desirability of the collection being available for international scholarly access within the aegis of the Old Library at Trinity College, Dublin, and the technical support it could provide; the evidence for the second defendant concluded that the setting in the customised room in Dr. Steevens' Hospital was as important to scholars as the individual volumes and that absorption in the larger library would dissipate its unique attributes.

Held by Keane J., in holding for the scheme proposed by the second defendant, 1, that notwithstanding the agreement of the parties the court would nevertheless of its own motion enquire whether the original bequest constituted a charitable gift.

2. That gifts to be charitable were traditionally classified into four categories known as Pemsel categories, namely: the relief of poverty, the advancement of education, the advancement of religion, and other purposes beneficial to the community: whereas there is a presumption that the first three categories are for the public benefit, such presumption did not arise in relation to the fourth.

Commissioners of Income Tax v. Pemsel [1891] A.C. 531 and National Anti-Vivisection Society v. Inland Revenue Commissioners[1948] A.C. 31 followed.

3. That the Court should lean in favour of a construction which would give effect to the testator's desire to benefit a stated object, rather than one which would lead to a failure of the bequest.

4. That while a gift for the advancement of education was presumed to be for the public benefit, and thus charitable, a gift for the advancement of learning might yet be charitable if it could be shown to be for the benefit of the public.

Commissioners of Income Tax v. Pemsel [1891] A.C. 531 applied; Morice v. Bishop of Durham (1804) 9 Ves. 399 considered.

5. That where a testator did not intend to advance one of the three categories of objects recognised by the law and thus presumed to be for public benefit, viz. relief of poverty, advancement of education, advancement of religion, the fact that his own view that his intended gift was of public utility was not shared by many others would not of itself prevent it from being a valid charitable object within the fourth category provided it was not illegal, irrational or contra bonos mores.

In re Cranston, Webb v. Oldfield [1898] 1 I.R. 431 applied. Dicta of Lord Simonds in National Anti-Vivisection Society v. Inland Revenue Commissioners[1948] A.C. 31 considered.

6. That in any event the two possible charitable objects coming within the fourthPemsel category, viz. the advancement of learning or of hospitals, would be considered as beneficial to the public by an appreciable number of people and either object was obviously not illegal, irrational or contra bonos mores.

7. That the Worth bequest was not a gift for the advancement of education since it lacked the necessary element of public benefit, the book collection having been bequeathed "for the use, benefit and behoof of the Physician, Chaplain and Surgeon for the time being" of Dr. Steevens' Hospital.

Attorney General v. Pearce (1740) 2 Atk. 87; Re McEnery, O'Connell v. Attorney General[1941] I.R. 323 and Oppenheim v. Tobacco Securities Trust Co. Ltd.[1951] A.C. 297 applied.

8. That while upon construction the gift of the library might have been intended for the advancement of learning, there was no presumption at law that it was intended for public benefit, nor could such intention be inferred.

9. That upon construction of the specific bequest, the further directions given, and the entirety of the will, the object to be benefited was not a charitable object.

Carne v. Long (1860) 2 De G.F. & J. 75; Re Prevost, Lloyds Bank Ltd. v. Barclays Bank[1930] 2 Ch. 383; Re Scowcroft, Ormrod v. Wilkinson[1898] 2 Ch. 638 approved. Attorney General v. Marchant(1866) L.R. 3 Eq. 424 considered.

Per Keane J.: A gift for the advancement of scholarship or academic research, and thus for the advancement of learning, which might reasonably be regarded as for the public benefit, did not lose its charitable object merely because such scholarship or research was not combined with teaching or education.

Dicta of Harman J. in In re Shaw, Public Trustee v. Day[1957] 1 W.L.R. 729,737 doubted; dicta of Wilberforce J. in Re Hopkins' Will Trusts, Naish v. Francis Bacon Society Inc.[1965] Ch. 669, 680 approved.

10. That a gift to a hospital was capable of coming within the fourth Pemsel category,viz. trusts for other purposes beneficial to the community.

Barrington's Hospital v. Commissioner of Valuation [1957] I.R. 299 applied.

11. That upon proper construction of the bequest, however, it was not a gift for the benefit of the hospital with mere precatory conditions imposed upon the trustees in favour of "the Physician, Chaplain and Surgeon for the time being", i.e. imposing no more than a form of moral obligation on the trustees to comply with the testator's wishes but having no effect in law; the bequest to trustees was clearly for the benefit of designated individuals.

In re Steele, Northern Bank Executor and Trustees Ltd v. Linton and Others [1975] N.I. 66 considered.

12. That the bequest nevertheless constituted a valid charitable gift to the hospital: there having been a public benefit in the welfare of its office holders and notwithstanding that their number did not exceed three.

Re White's Will Trusts, Tindall v. Board of Governors of United Sheffield Hospitals[1951] 1 All E.R. 528 followed; In re Good, Harrington v. Watts[1905] 2 Ch. 60 and Inland...