THE LAW OF CHARITIES AND MORTMAIN. PART I. CHAPTER I. CHARITABLE USES. WITH regard to the meaning of "charity," Grant, M. R., said, in Meaning of Morice v. Bishop of Durham (a), "That word in its widest sense charity. denotes all the good affections men ought to bear towards each other; in its most restricted and common sense, relief of the poor. In neither of these senses is it employed in this Court. Here its signification is chiefly derived from the Statute of Elizabeth (6). Those purposes are charitable which the statute enumerates, or which by analogies are deemed within its spirit and intendment; and to some such purpose every bequest to charity generally shall be applied." The preamble to the Statute of Elizabeth contained the follow- Enumeration ing enumeration of charitable objects:— of charitable objects in The relief of aged, impotent, and poor people; the maintenance 43 Eliz. c. 4. of sick and maimed soldiers and mariners, schools of learning, free schools, and scholars in universities; the repair of bridges, ports, havens, causeways, churches, sea-banks, and highways; the education and preferment of orphans; relief, stock, or maintenance for houses of correction; marriages of poor maids; supportation, aid, and help of young tradesmen, handicraftsmen, and persons decayed; the relief or redemption of prisoners or captives; and the aid or ease of any poor inhabitants concerning payment of fifteens, setting out of soldiers, and other taxes. There are also many objects, not expressly mentioned in the Charitable above enumeration, which the Courts nevertheless hold to be charit- objects within able, as being within the spirit and intendment of the Act. spirit of (a) 9 Ves. at p. 405. T. (b) 43 Eliz. c. 4, now repealed, see infra. B Public trust and chari The result of the decisions is, as will be seen (c), that every public trust is a charitable trust. And the expressions public trust synonymous. and charitable trust are synonymous (d). table trust 43 Eliz. c. 4, repealed. Preamble preserved. Definition in Decisions as to what are charitable objects. Aged, impotent, and poor persons. The Statute of Elizabeth, which, except so far as it has furnished the definition of charity, has long been obsolete, has now been repealed by the Mortmain and Charitable Uses Act, 1888 (e). Sect. 13, sub-s. (2), of the new enactment, however, incorporates the preamble to 43 Eliz. c. 4, and, after reciting that in divers enactments and documents reference is made to charities within the meaning, purview, and interpretation of that Act, provides that references to such charities shall be construed as references to charities within the meaning, purview, and interpretation of the said preamble. In the Charitable Trusts Acts (f) "charity" is defined to mean every endowed foundation and institution taking or to take effect in England or Wales, and coming within the meaning, purview, and interpretation of the Statute 43 Eliz. c. 4, or as to which, or the administration of the revenues or property of which, the Court of Chancery formerly had or might exercise jurisdiction. It is proposed in the present Chapter to state what have been held to be charitable objects, whether within the express words or within the spirit of the Statute of Elizabeth. Relief of Poverty and Distress. The relief of aged, impotent, and poor people is among the objects expressly enumerated in the preamble to the Statute of Elizabeth. Gifts to or for the benefit of the poor indefinitely (g), or the poor of a particular parish or place (h), are accordingly charitable. So also are gifts for the inmates of a workhouse (i), or the persons maintained in a hospital (j), or emigrating to particular colonies (k). Similarly, gifts to poor pious persons (7), to "poor pious persons (c) Post, pp. 11 et seq. (d) In Jones v. Williams, Amb. 651, charity is defined to be a general public use: Att.-Gen. v. Aspinall, 2 My. & C. at p. 623; Goodman v. Mayor of Saltash, 7 App. Cas. at p. 650; Re Christchurch Inclosure Act, 38 Ch. D. at p. 532. (e) 51 & 52 Vict. c. 42, s. 13, post, Part II. of this Book. (f) Charit. Trusts Act, 1853, s. 66; Charit. Trusts Amend. Act, 1855, s. 48, post. (g) Att.-Gen. v. Peacock, Rep. t. Finch, 245; Att.-Gen. v. Matthews, 2 Lev. 167; Att.-Gen. v. Rance, cited Amb. 422; Nash v. Morley, 5 Beav. 177. As to who are entitled to the benefit of such a gift, see post, pp. 104 et seq. (h) Woodford v. Parkhurst, Duke, 70; Att.-Gen. v. Clarke, Amb. 422; Att.Gen. v. Bovill, 1 Ph. 762; Att.-Gen. v. Wilkinson, 1 Beav. 370; Bristow v. Bristow, 5 Beav. 289; Salter v. Feary, 7 Jur. 831; Re Lambeth Charities, 22 L. J. Ch. 959; Att.-Gen. v. Blizard, 21 Beav. 233; Thompson v. Corby, 27 Beav. 649; Russell v. Kellett, 3 Sm. & G. 264; Re St. Alphage, London Wall, Parish Estates, 59 L. T. N. S. 614. (i) Att-Gen. v. Vint, 3 De G. & Sm. 704. (j) Corporation of Reading v. Lane, Duke, 81, 111. (k) Barclay v. Maskelyne, 4 Jur. N. S. 1294. (1) Nash v. Morley, 5 Beav. 177. of the Methodist Society" in a particular place (m), and to charitable and deserving objects (n), have been held to be charitable. The same is the case with gifts for distributing clothes or bread Doles. to the poor, or for putting out their children as apprentices (o). orphans, &c. Gifts for widows and orphans, as to the widows and children of Widows and seamen at a particular port (p), to the widows and orphans of a parish (g), to "twenty aged widows and spinsters" (r), are also charitable. Gifts for the benefit of the poorer classes are deemed to be within Gifts for the spirit of the statute. Thus, bequests for letting land to the poor at a low rent (s), for the increase and encouragement of good servants (t), for deserving literary men who have not been successful (u), for the benefit of the poor members of a particular trade (x), for poor housekeepers (y), for old decayed tradesmen (z), and reduced gentlewomen (a), are charitable. benefit of poorer classes. charitable. But a gift for building labourers' cottages on a particular Gifts held not estate was held not charitable (b); so, also, a gift to the children of the tenantry of the donor, there being nothing to show that it was intended for the benefit of poor persons (c). for relief of Gifts to institutions established for the benefit of persons belonging Institutions to the classes above mentioned (d), as hospitals, infirmaries, dispen- poverty or saries and almshouses (e), orphan and other asylums (f), orphanages distress. (m) Dawson v. Small, L. R. 18 Eq. 114. (n) Re Sutton, Stone v. Att.-Gen., 28 Ch. D. 464; and see post, p. 29. (0) Att.-Gen. v. Minshull, 4 Ves. 11; Att.-Gen. v. Earl of Winchelsea, 3 Bro. C. C. 373; Thompson v. Thompson, 1 Coll. at p. 392. (p) Powell v. Att.-Gen., 3 Mer. 48. (q) Att.-Gen. v. Comber, 2 S. & S. 93; Russell v. Kellett, 3 Sm. & G. 264. (r) Thompson v. Corby, 27 Beav. 649. (s) Crafton v. Frith, 20 L. J. Ch. 198. See also Att.-Gen. v. Blizard, 21 Beav. 233. (t) Loscombe v. Wintringham, 13 Beav. 87; Reeve v. Att.-Gen., 3 Hare, 191. (u) Thompson v. Thompson, 1 Coll. 395. With regard to gifts to a limited class of persons, see Att.-Gen. v. Lawes, 8 Hare, at p. 41, where Shadwell, V.-C., said that a bequest was not the less charitable because it was for the benefit of a limited class of persons; that it was not the number of the objects which made the difference between a public and private charity; that it was not the less a charity because it was confined to those members of a particular class of persons who were subject to certain grievances, and not to the class at large. () Re White's Trusts, 33 Ch. D. 449. (y) Att.-Gen. v. Pearce, 2 Atk. 87. (a) Att.-Gen. v. Power, 1 Ball & B. 145. (c) Browne v. King, 17 L. R. Ir. 448. Where the charitable purpose is sufficiently general, poverty in the recipients is not a necessary element, see post, p. 11. (d) Baker v. Sutton, 1 Keen, 224; Wilkinson v. Lindgren, L. R. 5 Ch. 570. (e) Mayor of London's Case, Duke, 83, 111; Att.-Gen. v. Kell, 2 Beav.575; Harbin v. Masterman, L. R. 12 Eq. 559; Re Alchin's Trusts, L. R. 14 Eq. 230; Thomas v. Howell, L. R. 18 Eq. 198; Re Ovey, Broadbent v. Barrow, 29 Ch. D. 560; Biscoe v. Jackson, 35 Ch. D. 460. (f) Clark v. Taylor, 1 Dr. 642; Harbin v. Masterman, L. R. 12 Eq. 559. Friendly societies. Poor relations. Immediate gift. Confined to relations within Statute of Distribu. tions. for children of persons of a particular class, as railway servants (g), policemen (), or clergy (i), homes of various kinds (k), and charity organization societies (7), or to officials of such institutions for the benefit of the institutions (m), as the master and governors or treasurer of a hospital (»), orphan asylum, or other charitable institution (o), are charitable. So, also, is a gift for endowing or erecting a hospital (p), establishing an asylum (9), or a soup kitchen or cottage hospital (so long as it does not infringe the mortmain provisions) (1). Friendly societies, at least where poverty is an ingredient in the qualification required for receipt of the benefits of them, are charitable institutions (s). Gifts to "poor relations" (t), poor kinsmen and kinswomen (u), the lineal descendants of the testator's uncle "as they may severally stand in need" (x), or relations "if they shall come to want" (y), have been held to be charitable. A gift to poor relations is not, however, necessarily charitable, as where there is an intention to give an immediate legacy to particular relations, even though the individuals to take may be left to the selection of the executors. In such a case only relations coming within the Statute of Distributions will take, and the legacy is not charitable (≈). In Mahon v. Savage (a) a bequest to "poor relations, and such (g) Hall v. Derby Sanitary Authority, 16 Q. B. D. 163. (h) Re Douglas, Obert v. Barrow, 35 (i) Re Clergy Society, 2 K. & J. 615. (1) Re Ovey, Broadbent v. Barrow, (m) See per Lord St. Leonards in Incorporated Society v. Richards, 1 Dr. & War. at p. 294; per Lord Hatherley in Att.-Gen. v. Sidney Sussex College, L. R. 4 Ch. at p. 730; as to a gift to a charitable corporation for its general purposes, Re Douglas, Obert v. Barrow, 35 Ch. D. 472. (n) Mayor of London's Case, Duke, 83, 111; Thomas v. Howell, L. R. 18 Eq. 198. (0) Beaumont v. Oliveira, L. R. 4 Ch. 309. (p) Pelham v. Anderson, 2 Eden, 296; Att.-Gen. v. Kell, 2 Beav. 575; Att.Gen. v. Gascoigne, 2 My. & K. 647. (q) Henshaw v. Atkinson, 3 Madd. 306. (r) Biscoe v. Jackson, 35 Ch. D. 460.See post, Part II. of this Book, as to how far such gifts were formerly affected by 9 Geo. II. c. 36, and are now affected by Part II. of the Mortmain and Charit, Uses Act, 1888. (s) Spiller v. Maude, 32 Ch. D. 158, n.; Pease v. Pattinson, 32 Ch. D. 154; contra, Re Clark's Trusts, 1 Ch. D. 497. See Anon., 3 Atk. 277. (t) White v. White, 7 Ves. 422; Isaac v. De Friez, 17 Ves. 373, n.; Att.-Gen. v. Duke of Northumberland, 7 Ch. D. 745. (u) Att.-Gen. v. Price, 17 Ves. 371. See also Goff v. Webb, Toth. 92; Gower v. Mainwaring, 2 Ves. Sen. 87; Goodinge v. Goodinge, 1 Ves. Sen. 231; Edge v. Salisbury, Amb. 70. (x) Gillam v. Taylor, L. R. 16 Eq. 581; but see Liley v. Hey, 1 Hare, 580; cf. Att.-Gen. v. Sidney Sussex College, L. R. 4 Ch. 722. (y) Bernal v. Bernal, 3 My. & C. 559; Browne v. Whalley, W. N. 1866, 386. See also Att.-Gen. v. Sidney Sussex College, 34 Beav. 654; ibid. L. R. 4 Ch. 722. (z) Green v. Howard, 1 Bro. C. C. 31; Edge v. Salisbury, Amb. 70; Brunsden v. Woolredge, Amb. 507; Widmore v. Woodroffe, Amb. 636; Goodinge v. Goodinge, 1 Ves. Sen. 231; Gower v. Mainwaring, 2 Ves. Sen. 87, 110. See also Gillam v. Taylor, L. R. 16 Eq. 581. (a) 1 Sch. & L. 111. |