[1954] EACA 13

## ORIGINAL CIVIL

### Before CRAM, Ag. J.

In the matter of the Trusts of Horace Russell Mayers, Mayers Memorial

#### **BETWEEN**

# ARTHUR ALEXANDER LEGAT AND OTHERS, Plaintiffs

AND

# RUPERT WILLIAM BARRETT AND OTHERS, Defendants

### Civil Suit No. 745 of 1951 (O. S.)

#### Trust and Succession-Charitable Trust-Fund in trust to establish Memorialinsufficient—Charitable intention—Cy-près—Jurisdiction—Condition Fund established that directions cannot be carried into effect.

The settlor executed a trust deed in 1931 in favour of trustees providing a large fund to be used for the erection and endowment of a hostel to be named the "Horace Russell Mayers Memorial Hostel" to perpetuate the memory of his son. The trust deed condescended upon *minutiae* of directions as to the place, erection, equipping, staffing and running the hostel, which was declared to be for the use of such persons of pure European descent as the Kenya "League of Mercy" might nominate who might benefit by a holiday at the coast. Those persons were to pay according to their means but, if without means, were to have their travelling expenses paid and to enjoy free board and lodging in the hostel. The settlor died in 1939, but the gift was suspended during the lifetime of the settlor's daughter who survived till 1945. By 1950 the fund was found insufficient to execute the settlor's directions. The Trustees then applied to the Court by originating summons for a declaration as to whether the settlor had such general charitable intent that there should be substituted another mode of carrying out the intent as nearly as possible to that specified by the settlor.

*Held* (10-3-54).—(1) The Court has jurisdiction to apply the doctrine of *cy-près* only when it is clearly established that the directions of the testator cannot be carried into effect. In this instance the condition was established and the Court had jurisdiction.

(2) Where a gift is given for a particular charitable purpose, but it is possible to say that, notwithstanding the form of gift, the paramount intention, according to the true construction of the will, is to give the prope to the general gift a direction as to the desires or intentions of the testator as to the manner in which the general gift is to be carried into effect; then although it is<br>impossible to carry out the precise directions, the gift for the general charitable purpose<br>will be good, and the Court, by virtue of its a as to how it is to be carried out.

(3) Where no such paramount general intention can be inferred and where the gift is in form a particular gift—a gift for a particular purpose—it being impossible to carry<br>out that particular purpose, the whole gift fails.

(4) The trust deed contained directions of a most particular and detailed nature to erect and equip a hostel as a memorial to the son of the settlor. These *minutiæ* of directions and those particulars ran through the deed from beginning to end. The gift appeared to be one for a particular purpose and the paramount intention was to provide a memorial and not to benefit a particular class of persons.

(5) The mode of providing a memorial hostel, while doubtless a charitable act. was the only charitable act the settlor intended or, indeed, contemplated at all and there<br>was no general charitable intention of giving money for the benefit of Europeans in<br>the Colony either as a whole or for the poorer charitable purpose for which the bequest was made was impracticable and no paramount charitable intention being implied by the will, the Court could not apply the fund cy-prés.

Cases cited: In re Wilson, (1913) 1 Ch. 314, 320; Attorney-General v. Boultbee,<br>2 Ves. Jr. 380, 387; 30 E. R. 683; Mills v. Farmer, 19 Ves. Jr. 483; 34 E. R. 595; Cherry v.<br>Mott, 1 My. & Cr. 123; 40 E. R. 323; Biscoe v. Jacks

Harris for the plaintiffs (trustees).

Figgis for first defendant (executor).

Kean for C. H. Mayers, defendant.

Angell for third defendant (residuary legatee).

Parry for fourth defendant (residuary legatee).

Pearson, Crown Counsel, for Attorney-General.

DECLARATION.—The trustees of the late George Russell Mayers took out this Originating Summons for the determination of certain questions by this Court videlicet:-

1. Whether a charitable trust established by the trust deed can be carried into effect in the mode specified by the settlor, and, if not

2. As to whether the settlor had such a general charitable intent when he executed the said trust deed that there should be substituted another mode of carrying out that intent as nearly as possible to that specified by the settlor.

3. If the answer to question 2 is in the affirmative, then for such directions as the Court may deem fit, for the purpose of carrying out the settlor's intention.

4. If the answers to questions $1$ and $2$ are in the negative, should the trust funds be paid over to the first defendant to be distributed by him as part of the residuary estate of the said George Russell Mayers, deceased, to which the defendants are beneficially entitled?

5. That the costs of and incidental to this application may be provided for.

The most relevant portions of the trust deed are as follows: -

"Whereas the settlor with a view to perpetuating the memory of his son Horace Russell Mayers, who was killed in action on 23rd April, 1917, wishes to provide funds to the extent of Sh. 1,000,000 for the erection and endowment of such a hostel as in hereinafter mentioned and whereas it is intended that the said hostel shall be erected on lands presently vested in East African Estates Ltd. . . and whereas the said East African Estates Ltd. has agreed with the settlor to transfer to the trustees by way of gift the said lands ..."... the trustees shall cause buildings of the general description specified (herein) to be erected on any part of the said lands . . . and hold "the said lands and all such buildings and furniture as aforesaid upon trust to permit the same to be used in perpetuity as a hostel under the name of 'The Horace Russell Mayers Memorial.' ... " The trustees shall permit the hostel to be used from time to time by such persons of pure European descent as the League (of Mercy) may from time to time nominate in that behalf the intention being that the hostel shall as far as possible afford an opportunity to every person of pure European descent resident in Kenya, Uganda and part of Tanganyika to benefit by a holiday or change at the Coast. . .

Each party to the summons agreed that the scheme envisaged by the trust deed cannot now be carried into effect in the mode specified by the settlor. The original gift amounted to Sh. 1,000,000 but, after the death of the settlor in 1931, by Order of this Court, on sundry applications, the fund was reduced and now, owing to the great fall in the value of money, combined with a corresponding rise in the cost of building, is inadequate to build and equip the hostel contemplated by the settlor. That this is so appears plainly from the scheme submitted by the League of Mercy following upon the order of Connel, J. made earlier, which all parties, before De Lestang, J. were of a consensus of opinion was impracticable and unworkable. On the facts shown in the affidavit, which are not contested and taking into account the general agreement on all sides I find that the scheme of erecting and equipping a Memorial Hostel as envisaged by the trust deed cannot now be carried into effect in the mode specified by the settlor. The answer to question 1 is therefore in the negative.

Question 2 involves consideration of the doctrine of cy-près. There is no jurisdiction in the Court to apply $cy-près$ until it is clearly established that the directions of the testator cannot be carried into effect. The condition being established I rule there is jurisdiction, to answer question No. 2.

One of the most lucid directions is that given by Parker J. In re Wilson, (1913) 1 Ch. at p. 320, where, in a not dissimilar application, he said: $\rightarrow$

"For the purposes of this case I think the authorities must be divided into two classes. First of all, we have a class of cases where, in form, the gift is given for a particular charitable purpose, but it is possible, taking the will as a whole, to say that, notwithstanding the form of the gift, the paramount intention according to the true construction of the will, is to give the property in the first instance for a general charitable purpose rather than a particular charitable purpose, and to graft on to the general gift a direction as to the desires or intentions of the testator as to the manner in which the general gift is to be carried into effect. In that case, although it is impossible to carry out the precise directions, on ordinary principles, the gift for the general charitable purpose will remain and be perfectly good, and the court, by virtue of its administrative jurisdiction, can direct a scheme as to how it is to be carried out. In fact, the will will be read as though the particular direction had not been in the will at all, but there had been simply a general direction as to the application of the fund for the general charitable purpose in question.

Then there is the second class of cases, where, on the true construction of the will, no such paramount general intention can be inferred, and where the gift, being in form a particular gift—a gift for a particular purpose and it being impossible to carry out that particular purpose, the whole gift is held to fail. In my opinion, the question whether a particular case falls within one of those classes of cases or within the other is simply a cons'ruction of a particular instrument."

I have to determine whether the gift in this will, which is in form a particular gift, is a gift for a particular charitable purpose and for that purpose only, or whether there is a paramount intention to be gathered from the will that the money shall in any event be applied for some more general charitable purpose even if the particular mode of application which is prescribed cannot be carried into effect.

In the case cited "the directions were to establish a soup kitchen and a hospital for the parish" and Parker, J. went on to say "the more particular the directions which are given, the less is it possible to construe the will as indicating or exhibiting a paramount intention to benefit a particular class of persons.'

In the trust deed in the instant case the directions were of a most particular and detailed nature to erect and equip a hostel as a memorial to a son of a settlor, killed in the first World War. They contain minutiae of directions and these particulars run through the whole trust deed from the beginning to the end. The gift prima facie appears to be one for a particular purpose and that purpose was to commemorate the death in battle of the testator's son, the paramount intention of the settlor, being to provide a memorial and not to benefit a particular class of persons. No paramount intention to give the property to a particular charitable purpose emerges. Indeed, read apart from the intention to create a memorial, it is difficult to find any intention at all to benefit any particular charity. The trust deed commences with a gift made "with a view to perpetuating the memory" of the testator's son and with this in view the fund is created to erect and endow a hostel. Were the inverse intention paramount. I should have expected to find the settlor make a gift with a view to benefiting Europeans in the Colony by the erection of a hostel and, as ancillary to that, the hostel in perpetuity was to be named the "Horace Russell Mayers Memorial" Hostel". Reading the trust deed, the very reverse seems the case, for it is not until after long and detailed instructions are given as to the care and maintenance of the hostel that the benefiting inmates are mentioned at clause 6. It seems that were the hostel proved incapable of erection so that there be no memorial, then the settlor never intended that, in the absence of the memorial. Europeans as a class (or even poor Europeans as a class) within the Colony. should benefit from his gift. To extract such an intention is to strain the language of the trust deed and seemingly to defeat the fixed intent of the settlor which was not to benefit Europeans but to provide a memorial to his son, in the use of which memorial Europeans, only, would benefit.

Can I reject these particular directions as not forming part of the essence of the gift and hold there is a general charitable intention for benefiting Europeans in the Colony? In my opinion, I would not be justified in holding that I can disregard all these particular directions and construe the gift not as a memorial but as a general gift for promoting the welfare of Europeans in the Colony. The testator has barely considered how Europeans shall benefit, but if they were to do so he plainly meant that in doing so they should feel themselves beholden to the memory of his son. It was in this manner that the memory was to be perpetuated and if the perpetuation of memory was to be defeated, as it has been defeated, then as the particular gift has failed, the Court cannot hold there is a general charitable purpose. The gift fails as the particular directions fail and the Court would not be entitled to direct a scheme.

Apart from these considerations, I am of the view that the trust can be recognized as a charitable one from the point of view that it would be good, although intended to benefit both rich and poor alike, and that a gift to Europeans in the Colony would be charitable in the sense that it benefits the community, or a defined part of it. Europeans are an appreciable part of the community and perfectly capable of being determined.

I do not overlook that the law is particularly tender towards charitable gifts. (I look at the matter now from the point of view of validity.) The gift, in my view would be valid enough were the Europeans intended to be the object of the gift, I mean as a benefit to a particular class of persons.

One of the earlier tests applied was in Attorney-General v. Boultbee, 2 Ves. Jr. at p. 387: "As to the doctrine of cy-près, as applied to charities, this sensible distinction has prevailed: the Court will not decree execution of a trust to charity in a manner different from that intended, except in so far as they see that the intention cannot be executed literally; but another mode may be adopted

consistent with his general intention, so as to execute it, though not in mode, in substance. If the mode becomes by subsequent circumstances impossible, the general object is not to be defeated, if it can be obtained."

The *clou*, if I may use the expression, in the test, is the interpretation of "general intention." Once more I am compelled to the view that the general intention of the testator was to create a memorial and not that of a general charitable intention or "general charitable object."

Applying now another test, that in Mills v. Farmer, Lord Eldon's touchstone was: "I consider it now established, that although the mode, in which a legacy is to take effect, is in many cases with regard to an individual legatee considered as of the substance of the legacy, where a legacy is given so as to denote, that charity is the legatee, the court does not hold, that the mode is the substance of the legacy; but will effectuate the gift to charity, as the substance; providing a mode for that legatee to take, which is not provided for any other legatee."

Once again the terms of the will preclude that charity is denoted as the legatee.

The case of *Cherry v. Mott*, 1 My. & Cr. 123 is in point. That was a case where the testator desired that the money arising from his residuary personal estate should be applied in carrying out a contract with the Governors of Christ's Hospital for the purchase of a presentation of a boy to that charity, which particular object had entirely failed. There it was more immediately apparent that there was merely a particular and not a general charitable intention. It was said: "In this case however, there is no gift except in the direction to do that which cannot be effected. It is not within the principle of those cases in which the Court executes a general purpose cy-près, the particular mode being impossible."

Applying these words to the present case, I am of opinion, there is no gift to Europeans in the Colony except in a direction that cannot be effected and it does not fall within the principle of those cases in which the Court can execute a general purpose $cy-près$ , there being no general intention.

I refer now to the judgment of Kay, J. in Biscoe v. Jackson, (1887) 35 Ch. D. at page 463. The testator had directed his trustees to set aside a sum and as to $£4,000$ thereof to apply the same as in the absolute discretion of his trustees might seem fit in the establishment of a soup kitchen for the parish of Shoreditch and of a cottage hospital adjoining thereto with not less than four beds and with necessary furniture and appliances and to pay for staff and for a surgeon. Kay, J. said:-

"Now, obviously on the face of that gift the persons intended to be benefited are the persons in the parish of Shoreditch who would usually resort to a soup kitchen and a cottage hospital. Who are they? Certainly the poor; and it is clear that he means the poor of the parish of Shoreditch; therefore an intention to benefit that class of persons by providing them with a soup kitchen and a cottage hospital may be treated as the paramount intention of the testator. He has directed his trustees to set this money apart, and then he directs them, no doubt, how they are to apply this money. I quite agree that, if the mode of application is such an essential part of the gift that you cannot distinguish any general purpose of charity, but are obliged to say that the mode for doing a charitable act was the only one the testator intended, or at all contemplated, and that he had no general intention of giving his money to charity, then the court cannot, if the particular mode of doing so fails, apply the money $cy-près$ .

On the other hand, if you do see a general intention of benefiting a certain class or number of people, who come within the ordinary definition of objects of charity, and you find that the particular mode the testator has contemplated of doing this cannot be carried out, and you are convinced that the mode is not so essential that you cannot separate the intention of charity from the particular mode, the court says there is a general intention of charity, and as the mode has failed, the duty of the court is, favouring charity as the court always does, to provide another mode than that which the testator pointed out, and which has failed."

To paraphrase these words, I think it is as plain as may be that the intention of the settlor was to provide a memorial for his son and that that mode of application is such an essential part of the gift that one cannot, outwith it, distinguish any general purpose of charity. I am obliged to find that the mode of providing a memorial hostel for his son while doubtless a charitable act, was the only charitable act the testator intended or indeed contemplated at all, and that he had no general intention of giving his money for the benefit of Europeans in the Colony, either as a whole, or the poorer sort of Europeans as a class. This mode having failed then, this Court is unable to apply the doctrine of cy-près. I am unable to arrive at the view that this memorial hostel was not so essential that it can be separated from a general intention of charity. The whole of the trust deed is evidence to the contrary. The mind of the testator was fixed and focussed upon providing a somewhat grandiose method of commemorating his son and it is almost inconceivable from the document that the primary purpose was to benefit a certain class of persons. In fact it is virtually possible to go as far as to say that these persons were to be mere transients to be attracted by cheap rates to a memorial not essentially for the benefit of their health but so that they might nurture a memory of glory. In much the same way a government might provide cheap fares to and cheap board and lodging at the site of a shrine to national glory. In such circumstances it would be absurd to impute an intention to that government to benefit tourists charitably.

What Kay J. sought to do in Biscoe v. Jackson (supra) was to discover a means whereby the general intention of providing the poor of Shoreditch parish with free food and medical attention could be carried into effect, there being no land available for the site of a hospital and the particular mode having failed. It is impossible for this Court to contemplate another means of providing<br>Europeans or, even poor Europeans, within the Colony with free or cheap holidays at the seaside, when the intention of providing a hostel has failed for immediately the mere concept of such an alternative is considered it is at once apparent from the trust deed that do so would be to defeat the real object of the testator, for then there would be no memorial building to sustain the memory of his deceased son. I do not see how any scheme that this Court might possibly direct could give effect to such an intention. In Biscoe v. Jackson the particular scheme failed because there was no land available; in this instance there is land available but insufficient money, and in that respect the difficulty is less superable than in the former case. The difficulty here is indeed insuperable.

The judgment of Kay, J. was considered and upheld by the Court of Appeal. Lindley, L. J. said: $-$

"It seems to me to be perfectly obvious that what the testator was really aiming at was to provide food and medical attendance for the poor of the parish to the extent of his ability as measured by his bequest of £10,000. There is no particular direction as to where the kitchen or hospital are to be, nor as to whether it is to be in the parish or out of the parish. It is to be for the benefit of the parish and to liken this to a bequest for a particular institution or to such a case as $Cherry$ v. Mott where the bequest was to buy

a presentation for a boy in a particular school is to compare this case to those which are obviously dissimilar from it. . . The object here is to establish a charity for the benefit of the poor with a particular mode of doing it; and if you cannot accomplish the object in that mode, then in some other mode in which you can...."

In the instant case the settlor was plainly not aiming at benefiting poor or any other Europeans directly, but only through the medium of an institution in the form of a memorial. Indeed this suit falls somewhere between the facts of Cherry v. Mott and Biscoe v. Jackson, but nearer to the former case and to my mind quite plainly on the former side of the borderline. As Cotton, L. J. remarked in the latter case: $-$

"If the will had said that the trustees must build the particular building within the parish of Shoreditch there might be some difficulty but what the testator desires to do is to provide a particular kind of hospital and a soup kitchen for the poor of Shoreditch. To my mind that shows that he intends not that it is to be located in a particular place, though that would be a proper mode of giving effect to the particular directions contained, if a place in the parish could be found; but that it is for the benefit of the parish. . . Of course we have to determine what is the effect, looking fairly at the words used by the testator to see what his intention was. To my mind the clear result is that he intended here to provide for that primarily in the particular way he points out. If that fails then the doctrine applies. ..."

Adverting once more to the trust deed, the clear intent of the testator was to provide primarily a memorial and secondarily an ancillary benefit. He stipulated the exact kind of memorial which was to be with its cost, contents, rules, custodians and exact location and had in his mind that once it was established then a certain class of persons would be invited there. That memorial through lack of funds cannot now be constructed nor indeed can any smaller economic version. The whole envisagement of a memorial disappears and with its disappearance the ancillary charitable intention falls to the ground, or at least, so it seems to me.

Finally, adverting to a modern case, In re Good's Will Trusts, Oliver v. Batten, (1950) W. N. 435, in which the facts are not dissimilar to the present matter in that the testator directed his trustees to set apart £2,500 and to hold the fund in favour of "Good's Rest Homes" and to purchase a piece of land, preferably in Hull and to erect six or more rest homes, each consisting of a living-room, sleeping apartment and usual outside domestic conveniences, all to be on the ground floor. The will was made in 1931; the testator died in 1939 and the gift was suspended during the lifetime of the testator's daughter who did not die until 1945. By 1950, it was admitted that the trust was charitable but impossible of fulfilment as the fund available for the purchase and erection of the homes was quite insufficient for the purpose, as also was the endowment fund like the one here. The question for decision was, whether the fund should be applied cy-près or whether the gift failed completely as a charitable gift and the fund reverted to the testator's estate. Wynn-Parry, J., said that the question was whether there was a general charitable intent or the charitable intent was limited to the particular scheme; he referred to the judgment of Parker, J. in In re Wilson as the general guide to the subject and cited Neville, J. in In re Packe, (1918) 1 Ch. 437, as saying "as the particular charitable purpose for which the bequest was made was impracticable and no paramount general charitable intention was implied by the will" that the gift failed. Wynn-Parry, J., went on to say that it might be sufficient to cause a gift to fail that the gift should be so particular in its language as to exclude the possibility of any intention beyond the particular charitable purpose ... the only charitable purpose specified was that of "Good's Rest Homes": there was nothing in the trust provisions to justify the conclusion that the testator had a paramount intention to give the fund for a general charitable purpose rather than a particular charitable purpose and there was no room for the application $cy-près$ doctrine.

Applying these words to the case before this Court, the conclusions are inescapable that the charitable purpose specified is that of providing the "Horace" Russell Memorial Hostel". There is little else in the trust provisions to enable me to come to the conclusions that the settlor had any paramount intention to give this fund for the general charitable purpose of benefiting Europeans and the consequence of such a conclusion is, inevitably, that there is no room for the application of the doctrine cy-près.

It is unnecessary to review the many other cases available in the reports for, although the wording of the tests applied may not be identical, the principles underlying the decisions are all in the same trend. It follows that the second question will have to be answered in the negative.

In consequence, the fourth question, which had such a measure of agreement that it was not even the subject of arguments, falls to be answered in the affirmative.

I am of the opinion also that this is a proper case for ordering that the costs of all parties be paid out of the funds of the trust estate. In regard to the submission on behalf of the fourth defendant that the cost of preparing the scheme ordered by Connel, J. should aso be charged out of the estate, I observe that the order of the learned Judge was that such a scheme was to be drawn up by the fourth defendant with the assistance of the Attorney-General and was to be submitted as an order of the Court. There may be some grounds, therefore, for admitting these costs; but, before making any order, I should first prefer to hear parties.

Declaration accordingly.