Shillington v Portadown Urban District Council

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 29 June 1910
• Court: King's Bench Division (Ireland)
• Date: 29 June 1910

Shillington

and

Portadown Urban District Council.

Barton, J.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1911.

Will — Construction — Charitable gift — “Purposes of healthy recreation” — Gift for public purposes for benefit of a particular town — Purpose beneficial to community — Overriding charitable purpose — Perpetuity — Inclusion of objects not charitable — Urban Council — Trusteeship.

A testator devised and bequeathed all his real and personal property to A. and B. (whom he appointed executors of his will) and the Portadown Urban Council for the time being, in trust, to retain his property in its then form, and out of the income to keep his house property in good order and repair, and secondly to accumulate £100 per annum during the joint lives of A. and B., and for twenty years after the survivor's death, for the purpose of forming a fund for the redemption of head rents on the trust property, or to be invested in trustee securities, which sum when it fell into the hands of the trustees of his will to be added to the capital sum then in hands, but, at the discretion of the trustees, at the end of every five years to apply the accumulations to augment the capital fund, and in the third place, testator directed that £5 per annum should be retained by the trustees for the purpose of a quinquennial dinner to “my trustees and the clerk of the Urban District Council for the time being,” and such others as the trustees should decide to invite, and testator directed that his will should be read and discussed at these dinners. Testator then directed that the balance of the income derived from his estate should be applied by his trustees “for the purpose of fostering, encouraging, and providing the means of healthy recreation, including the teaching of singing in classes or choruses, for the residents of the town of Portadown and the surrounding districts, and for the purpose of providing music and instruments (in so far as my trustees think advisable) for the town band, in such a manner and form as my trustees in their absolute discretion consider best, but in no case shall my trustees pay away any moneys derived out of my estate for prizes for football or rowing for speed.”

Held, that the direction to the trustees as to the application of the balance or residue of the income of the trust estate constituted a valid charitable devise and bequest, being for a charitable and public purpose.

Held, also, that the directions as to accumulation and as to the quinquennial dinners, were subordinate and ancillary to the main general charitable purpose, and if any of the directions as to any of them failed, the income applicable thereto would fall into the residue and be available for the main charitable object.

Held, also, that the direction as to the town band was not a gift for the benefit of the band, but was a particular way of carrying out a general public and charitable purpose for the benefit of the town and neighbourhood.

Held, also, that the Urban Council could not hold lands as devisees in trust in the manner contemplated by the will, and that the Court would effectuate testator's intentions by settlement of a scheme which would provide if necessary for the appointment of trustees, and would have regard to the fitness of the Council to assist in carrying out a trust for the benefit of the town and neighbourhood.

William John Watson, who died on 27th October, 1907, by his will, dated July 4th, 1906, appointed David Graham Shillington and James Patterson Best, his executors, and proceeded as follows:—“I appoint David Graham Shillington and James Patterson Best, together with the members of the Portadown Urban Council, for the time being, the trustees of this my will; and I give, devise, and bequeath all I may die possessed of, whether real or personal property, unto the said David Graham Shillington and James Patterson Best, hereinafter called ‘my trustees,’ upon the trusts hereinafter contained; and I hereby empower ‘my trustees’ to retain my property in its present form, and out of the income derived out of the property in its present form I direct ‘my trustees’ in the first place to keep my house-property, in good order and repair; and, in the second place, I direct that a sum of one hundred pounds per annum shall be set aside from the date of my death, to accumulate during the joint lives of the said David Graham Shillington and James Patterson Best, and during the life of the survivor of them, and for a period of twenty years after the death of the survivor of them, for the purpose of forming a fund which with the accumulations thereon is to be either used for the purpose of buying out the head rents upon the property devised and bequeathed by me, or to be invested in trustee securities, and which sum when it falls into the hands of ‘my trustees’ is to be added to the capital sum, then in hands; but ‘my trustees’ may, if they think right, at the end of five years from the date of my death, and at the end of every succeeding period of five years, apply the accumulations to augment the capital fund; and, in the third place, I direct that a sum of five pounds annually be retained by my trustees, and at the expiration of five years from the date of my death, or, if ‘my trustees’ prefer it, during the succeeding winter months, I direct that ‘my trustees’ shall apply the sum of twenty-five pounds, being the accumulations at five pounds a year, for five years as above mentioned, in providing a dinner for ‘my trustees,’ the clerk of the Urban District for the time being, and such others as ‘my trustees’ shall decide to invite, not exceeding in all the number of twenty-five, and I direct that similar dinners be given at the expense of my estate as aforesaid on every fifth year following the date on which the first dinner is provided; and I direct ‘my trustees’ to have this my will read at every dinner, in order that it may be discussed; and perhaps by this means ‘my trustees’ may get some valuable suggestions as to carrying out the trusts herein mentioned; and in the fourth place, I direct that the balance of the income derived from my estate shall be applied by ‘my trustees’ for the purpose of fostering, encouraging, and providing the means of obtaining healthy recreation, including the teaching of singing in classes or choruses, for the residents of the town of Portadown and the surrounding districts, and for the purpose of providing music and instruments (in so far as ‘my trustees’ think advisable) for the town band, in such manner and form as ‘my trustees’ shall in their absolute discretion consider best; but in no case shall ‘my trustees’ pay away any moneys derived out of my estate for prizes for football, or for rowing for speed. I hereby direct that my executors shall be an advisory committee to the Urban Councillors for the time being.”

At his death testator was possessed of net personal estate sworn for purposes of probate at £7,457 17s. 3d., and was seised of net real estate about the value of £2,716 17s. 11d.

On the 27th of February, 1909, probate of testator's will was granted to the plaintiffs, who brought an action claiming that the trusts of the will might be carried into execution, and that the real and personal estate of the testator might be administered under the direction of the Court.

Bates, K.C. (with him Richard Best), for the plaintiffs.

The bequest of the residue is valid. It is a good charitable gift, apart from its limitation to a certain locality. The motive of the gift is charitable, and that determines its charitable character. There is no vagueness, for the testator himself has defined the object to be “healthy recreation.” Weir v. Crum-Brown (1). The limitation to a particular locality clearly renders it a good gift: see In re Allen, Hargreaves v. Taylor (2), and cases cited therein. As to the trust for a dinner every fifth year, this is a good bequest, being incidental to the execution of the main charitable gift. It is also valid on the authority of In re Charlesworth, deceased, Robinson v. Cleveland (3). The town band can be properly included in a good charitable gift, and in any event the gift is rendered valid by the over-riding charitable motive: Hunter v. Attorney-General (4); Sinnett v. Herbert (5); In re Douglas, Obert v. Barrow (6). In the event of the Court holding the trust for dinners or that in favour of the town band invalid, the residuary clause captures for the main charitable object the amount of the dispositions that have failed. The failure of one or more of the objects would be only matter for apportionment: Rigley's Trusts (7); Hoare v. Osborne (8); Vaughan v. Thomas (9).

Arthur W. Samuels, K.C., Frederick Fleming, K.C., and F. Denning, for the defendant, Elizabeth Watson, one of the next-of-kin of testator.

There is no general residuary gift in the will. If any of the first three objects fail, that portion of the income is undisposed of; it does not fall into the fourth category.

The direction to accumulate £100 per annum is bad (a). It offends against the Accumulation Act, 1892, 55 & 56 Vict. c. 58, section 1. “Land” includes head rents: In re Clutterbuck, Fellowes v. Fellowes (10); In re Baroness Llanover, Herbert v. Freshfield (11); (b) it offends against the rule against perpetuities. There is no cestui que trust who is entitled to the accumulated fund within the legal period. The head rents might not come into the market within the period. The direction to accumulate being bad, the £100 per annum is undisposed of: Smith v. Cuninghame

(1); Cochrane v. Cochrane (2); Chamberlayne v. Brockett (3); In re Swain, Monckton v. Hands (4). The gift for dinners is bad: In re Barnett, Waring v. Painter Stainers Co. (5). In re Charlesworth, Robinson v. Cleveland (6) is distinguishable. It was for the purpose of a religious society and to...